Citation Nr: 1702025	
Decision Date: 01/26/17    Archive Date: 02/09/17

DOCKET NO.  13-03 486A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 

2.  Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as due to herbicide exposure.  

3.  Entitlement to service connection for prostate cancer.

4.  Entitlement to service connection for erectile dysfunction due to prostate cancer.

5.  Entitlement to an initial rating in excess of 30 percent for a left ankle disability. 


REPRESENTATION

Appellant represented by:	Shannon L. Brewer, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Zi-Heng Zhu, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1963 to November 1967. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions from May 2011 and July 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in November 2016.  A transcript of that hearing is of record.

The issues of entitlement to service connection for prostate cancer and erectile dysfunction and entitlement to an initial rating in excess of 30 percent for a left ankle disability are REMANDED to the Agency of Original Jurisdiction.


FINDINGS OF FACT

Resolving reasonable doubt in the Veteran's favor, the Veteran served in the Republic of Vietnam during the Vietnam era, and therefore, exposure to herbicides is conceded.



CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for diabetes mellitus, type II, as due to herbicide exposure, have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2016).

2.  The criteria to establish service connection for peripheral neuropathy of the bilateral upper and lower extremities, as due to herbicide exposure, have been met.  38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307(a)(6), 3.309(e) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).  That determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303 (d) (2016). 

Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2016).  Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected.  38 C.F.R. § 3.310 (2016).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during that service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service.  Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 U.S.C.A. § 1116 (f) (West 2014); 38 C.F.R. § 3.307 (a)(6)(iii) (2016).

With regard to disabilities a Veteran attributes to exposure to herbicides, for Veterans who served in the Republic of Vietnam, service connection may be presumed for certain enumerated disease, such as prostate cancer, that become manifest within a presumptive period.. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.309 (e) (2016). 

The diseases for which presumptive service connection based on herbicide exposure is available include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease.  38 C.F.R. § 3.309(e) (2016).

The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Notice, 79 Fed. Reg. 20308 (2014).  However, regardless of the applicability of the presumption, a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155 (1997).  Proof of direct service connection between exposure and disease requires a showing that exposure during service actually caused the malady which developed years later. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Diabetes Mellitus & Peripheral Neuropathy

The Veteran claims that his overseas service at Udon Airforce Base (AFB) in Thailand, during the Vietnam Era, qualifies as in-country service in the Republic of Vietnam, and should cause him to warrant presumptive service connection for diabetes mellitus and peripheral neuropathy.  The Veteran specifically claims that he actually stepped foot in Vietnam at DaNang AFB while on route to his duty station in Thailand.  He states that he was on the ground for nearly forty-five minutes, and that stop was not logged because it was unscheduled.  Furthermore, and most significantly, the Veteran claims that his military occupation specialty (MOS) as an airplane mechanic often required him to work on the perimeter of the Udon AFB 

With regards to work on the perimeter of the base in Thailand, the Veteran has submitted photographs of cleared foliage around the perimeter of the base and detailed the service duties that required him to work close to that perimeter.  He stated that the brush was cleared away by use of spraying herbicides, and that he often worked on the flight line close to, or right next to the cleared brush, near the end of the runway.  While the Veteran's service personnel records do not show any service in the Republic of Vietnam, the personel records confirm his military occupation specialty (MOS) as an airplane mechanic, and his duty station in Thailand.  Thus, service in Thailand at Ubon AFB has been established.

Diabetes mellitus, type II and peripheral neuropathy, are recognized by VA as being associated with exposure to herbicide agents.  38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. § 3.309 (2016).  Thus, the only question is whether the Veteran was exposed to herbicides during service.  38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307 (2016). 

In this case, the Board will focus on the Veteran's assertion that he was exposed to herbicides in Thailand.  As the Veteran served at the Royal Thai Air Force Base in Ubon during the Vietnam era, exposure to herbicides may be conceded on a direct facts found basis if he served near the perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.  VA has developed specific evidentiary procedures to verify whether a veteran was exposed to herbicides in locations other than Vietnam.  When a Veteran alleges exposure to herbicides in Thailand, and if a Veteran served in the United States Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs) as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, then herbicide exposure is to be conceded.  VA's Adjudication Procedure Manual Rewrite, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q).  For members of the United States Army, if a Veteran provides a statement that he was involved with perimeter security duty, and there is additional credible evidence supporting that statement, exposure to herbicides may be conceded. 

Here, the evidence of record shows that the Veteran served in Thailand during the Vietnam era, the period in which VA has acknowledged that herbicides were used near the air base perimeter at Ubon Royal Thai AFB.  While the record does not clearly identify whether the Veteran was exposed to herbicides while stationed at Ubon Royal Thai AFB, the Board notes that there is no basis in the record to question the Veteran's credibility regarding his statements that his assigned duties involved work near the perimeter of the AFB along the flight line.  In fact, the Veteran submitted photographs of those areas.  The statements by the Veteran indicate that he regularly worked on the flight line, which was adjacent to the base perimeter.  The Veteran's statements as to the location of duties performed by him while stationed in Thailand are competent lay evidence of what the Veteran observed during service in Thailand.  Layno v. Brown, 6 Vet. App. 465 (1994) (lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge).  Further, while a mechanic is not one of the MOSs conceded to have been exposed to herbicides in Thailand, the Board finds the Veteran's information credible and notes that daily work on the flight line would be consistent with his duties as an airplane mechanic. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing).  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  As there is no evidence of record that contradicts the Veteran's claim as to the location of duties performed during his service in Thailand, they must be presumed to be accurate.  Any reasonable doubt regarding the accuracy of the Veteran's statements is resolved in favor of the Veteran.  38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Consequently, the Veteran's credible statements and photographs of the Ubon AFB locations where he worked, taken in conjunction with the information regarding herbicide use in Thailand, supports a finding that the Veteran was exposed to herbicides during service.  As the Veteran's post-service medical records show diagnoses of diabetes mellitus, type II, and peripheral neuropathy of the upper and lower extremities, those disabilities are presumed to have been incurred during active duty service based on the Veteran's exposure to herbicides during service in Thailand.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015).


ORDER

Entitlement to service connection for diabetes is granted. 

Entitlement to service connection for peripheral neuropathy of the bilateral upper and bilateral lower extremities is granted. 




REMAND

A July 2013 rating decision granted service connection for a left ankle disability and assigned a 30 percent rating.  In February 2014, the Veteran filed a statement in which he expressed intent to rebut the findings of the rating decision.  He specifically requested a higher rating for the left ankle disability.  The Board interprets that correspondence as a timely notice of disagreement to the initially assigned rating.  38 C.F.R. § 20.201 (b) (2016).  No statement of the case addressing that claim has been issued.  Therefore, the Board is required to remand the claim for issuance of a statement of the case.  Manlicon v. West, 12 Vet. App. 238 (1999).

A December 2014 rating decision denied service connection for prostate cancer and erectile dysfunction.  In January 2015, the representative filed a notice of disagreement.  No statement of the case addressing those claims has been issued.  Therefore, the Board is required to remand the claims for issuance of a statement of the case.  Manlicon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case addressing the issues of entitlement to service connection for prostate cancer and erectile dysfunction, and entitlement to an increased rating for a left ankle disability.  Notify the Veteran that he must submit a timely substantive appeal to perfect an appeal of those claims.  If a timely substantive appeal is received, return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs