Citation Nr: 1704435 Decision Date: 02/14/17 Archive Date: 02/24/17 DOCKET NO. 11-28 583 ) 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 (herein diabetes), to include as due to exposure to herbicide agents. 2. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to diabetes. 3. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to diabetes. 4. Entitlement to service connection for a prostate disability, to include as due to exposure to herbicides agents. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to August 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico (though jurisdiction now lies with the St. Petersburg, Florida RO). The Veteran testified at an October 2014 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Subsequent to the most recent Supplemental Statement of the Case issued in November 2015, additional documents were associated with the Veteran's claims file, without a waiver of review by the Agency of Original Jurisdiction (AOJ). In October 2016, the Veteran's representative submitted a Post-Remand Brief that waived AOJ review of additional evidence to that point. Subsequently, additional VA treatment records were associated with the Veteran's claims file, without a waiver of AOJ review. As will be outlined below, three of the Veteran's claims are being granted and therefore there is no prejudice in the Board considering the new records in the first instance. As to the claim being denied (entitlement to service connection for a prostate disability), the additional records have been reviewed and they provide evidence of ongoing treatment for a prostate disability but do not relate to the primary reason for denial, which as will be addressed below, is that there is no nexus between his current prostate disability and his active service. As such, the records do not have a bearing on the appellate issue and are not pertinent to this claim and therefore the Board may proceed with a decision at this time. See 38 C.F.R. § 20.1304(c) (2016). FINDINGS OF FACT 1. While stationed at Ubon Royal Thai Air Force Base (RTAFB) the Veteran served near the air base perimeter and therefore in-service herbicide exposure is conceded on a direct or facts found basis. 2. The Veteran has diabetes mellitus Type II. 3. The Veteran's peripheral neuropathy of the upper extremities is caused by his service-connected diabetes. 4. The Veteran's peripheral neuropathy of the lower extremities is caused by his service-connected diabetes. 5. A prostate disability was not manifest during active service and the Veteran does not have a prostate disability that is related to his active service, to include herbicide exposure. CONCLUSIONS OF LAW 1. Diabetes, as due to herbicide exposure, may be presumed to have been incurred in wartime service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 2. Peripheral neuropathy of the upper extremities is proximately due to the Veteran's service-connected diabetes. 38 C.F.R. § 3.310 (2016). 3. Peripheral neuropathy of the lower extremities is proximately due to the Veteran's service-connected diabetes. 38 C.F.R. § 3.310 (2016). 4. A prostate disability was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Diabetes Considering the favorable outcome detailed below as to the grant of entitlement to service connection, VA's fulfillment of its duties to notify and assist do not need to be addressed. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). If a Veteran was exposed in-service to certain herbicide agents (e.g., Agent Orange), service connection for certain diseases, including diabetes, will be presumed. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). VA has established a procedure for verifying a Veteran's exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H.5 (herein M21-1); Compensation and Pension Service Bulletin, May 2010. VA "has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes," as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." See Compensation and Pension Service Bulletin, May 2010. The May 2010 Compensation and Pension Service Bulletin stated that "[s]pecial consideration of herbicide exposure on a facts found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases" and that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." Under the procedures outlined in the M21-1, if a Veteran served at certain RTAFBs, including Ubon RTAFB, during the Vietnam Era as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure should be conceded on a direct or facts-found basis. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. Evidence & Analysis As noted above, for a Veteran who has been exposed to herbicides in-service, service connection will be presumed for certain diseases, to include diabetes. The evidence of record indicates that the Veteran has diabetes. See, e.g., August 2007 VA Treatment Note, November 2016 VA Treatment Note. The Veteran's personnel records reflected that he was stationed in Thailand from December 1968 to November 1969. A DD 214 of record, for the period of service from May 1965 to April 1969, noted a station of discharge of Ubon, Thailand. A specialty was noted of electrical power production. A performance review covering the period from August 1968 to May 1969 noted a location of Ubon, Thailand. The Veteran's current duty was noted to be "Electrical Power Production Specialist." His duties were noted as "Specialist. Installs and operates electrical power source and distribution equipment. Maintains, inspects, repairs and modifies electrical power generation and distribution equipment. Maintains operation, inspections and maintenance records. Maintains and repairs electric generating equipment. Supervises electrical power production personnel." On the October 2011 VA Form 9 the Veteran stated that "my claim is not for herbicide exposure while in Thailand, it is based on my service in Laos." At the October 2014 Board hearing, the Veteran described his duties while stationed in Thailand. The Veteran stated that "[w]hen I was in Thailand I was a...power production technician, take care of generators, and on flights lines, all over the military base, perimeter fence." He also stated that "[a]ll of those communication sites are right at the perimeters of the base or either slightly off base" and that "I have a picture of me at a base right at the perimeter of the fence where they had the radar site, some of the radar equipment. That was just daily activity. I mean you go out there and you work on the equipment." He additionally stated that "[o]ur plant was on the base and it supplied electricity to the base. And most of our perimeters, we had to use the generators for that sort of thing for electricity." He further stated that he was "pretty close" to the perimeter fence when he was stationed in Thailand, that "[a]t a couple of the sites I had to maintain the lights on the perimeter fence," that "I was a power man, but also was responsible for all the electrical at those particular sites. So I was climbing a pole to replace the light bulbs on the perimeter fence" and that "I was the only civil engineer type that was on some of the sites. So it was my responsibility to check and make sure that nothing was, you know out of sources at the fence." He also indicated that he "definitely" knew that he was around the fence line and worked on generators there. In a subsequent November 2015 statement the Veteran described his work duties while at Ubon RTAFB. He stated that he "worked...replacing and then repairing a number of marginally operating diesel-electric generators through the air base. I worked in base perimeter areas on electrical generators where Nav-Aids equipment such as Glideslope, Middle Marker and Outer Marker directional devices for aircraft operations were located." In the Veteran's representative's October 2016 Post-Remand Brief, it was stated that the Veteran "has reported that while at the Ubon [RTAFB] in Thailand his duties frequently placed him in close proximity to the perimeter fence." It was also noted that "[t]he [V]eteran has repeatedly noted that his duties in power production required him to work on equipment that was located on the base perimeter" and that "[t]he [V]eteran is competent to report what occurred during his military service, including insofar as his particular duties and responsibilities since this is his firsthand knowledge of a factual matter." Upon review, the Board finds that entitlement to service connection for diabetes is warranted. Initially, evidence indicated that the Veteran served at Ubon RTAFB during the Vietnam Era. See 38 C.F.R. § 3.2 (2016) (defining the dates of the Vietnam Era). Next, while the Veteran's duty while stationed at Ubon RTAFB of Electrical Power Production Specialist is not obviously consistent with exposure to the air base perimeter, he has provided competent and credible statements that indicated his work duties required him to serve near the air base perimeter. The Veteran's description of his work duties appears to be consistent with the evidence of record, to include his performance report covering the period from August 1968 to May 1969 that noted a location of Ubon, Thailand. The Board acknowledges the October 2011 VA Form 9 on which the Veteran stated that "my claim is not for herbicide exposure while in Thailand, it is based on my service in Laos." This statement does not necessarily indicate that the Veteran was stating he was not exposed to herbicides while in Thailand, but rather that he was asserting he was exposed to herbicides in Laos. Moreover, the Veteran subsequently provided testimony regarding how his work duties while stationed at Ubon RTAFB required him to serve near the air base perimeter and the Board has found these reports to be credible. As such the Board concludes that while stationed at Ubon RTAFB the Veteran served near the air base perimeter and therefore in-service herbicide exposure is conceded on a direct or facts found basis. As the Board has found that the Veteran was exposed to herbicides in-service and that he has diabetes, diabetes, as due to herbicide exposure, may be presumed to have been incurred in wartime service and to this extent the Veteran's claim is granted. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). II. Peripheral Neuropathy Considering the favorable outcome detailed below as to the grant of entitlement to service connection, VA's fulfillment of its duties to notify and assist do not need to be addressed. Legal Criteria For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310 (2016); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Evidence & Analysis Various VA treatment records during the appeal period referenced the Veteran as having diabetic neuropathy. In this regard, an August 2007 VA treatment note (the Veteran filed this claim in July 2007) noted "tingling and numbness of his fingers and toes" and included an assessment of diabetic neuropathy. Diabetic neuropathy was added to the Veteran's VA treatment problem list and it continued to be on that list during the appeal period, to include as recently as a November 2016 VA treatment note. With specific respect to the upper extremities, a September 2009 VA treatment note included an impression of "Diabetic Neuropathy of hands." With specific respect to the lower extremities, a November 2015 VA treatment note noted occasional tingling in the feet and noted an impression of diabetic neuropathy and a February 2016 VA podiatry treatment note noted "burning pain to both of his feet" and included an assessment of diabetes with bilateral peripheral neuropathy. Other VA treatment notes referenced both the upper and lower extremities, to include an April 2010 VA treatment note that noted "[c]hronic, intermittent toe and finger numbness" and an assessment of diabetes "complicated by neuropathy." In addition, a July 2014 VA treatment note and a March 2015 VA treatment note noted occasional tingling in the feet and hands and noted an impression of diabetic neuropathy. Also, October 2016 and November 2016 VA treatment notes noted an assessment of diabetic peripheral neuropathy. As discussed above, the Board has granted entitlement to service connection for diabetes. Based on the various VA treatment records indicating such, the Board finds that the Veteran's peripheral neuropathy of the upper and lower extremities is caused by his service-connected diabetes. As such, the Board concludes that peripheral neuropathy of the upper and lower extremities is proximately due to the Veteran's service-connected diabetes and therefore entitlement to service connection is warranted on a secondary basis and to this extent the Veteran's claim is granted. 38 C.F.R. § 3.310 (2016). III. Prostate Disability VA's Duty to Notify and Asist VA has a duty to notify and duty to assist a veteran in the claims process. The Veteran was provided with adequate notice in a July 2009 letter, prior to the November 2009 rating decision on appeal. The duty to assist includes assisting the Veteran in the procurement of relevant records. Of record, as relevant, are service treatment records (STRs), private medical records and VA treatment records. The Board notes that there are outstanding Federal records, will be discussed below. As noted, the Veteran's claim was remanded by the Board in January 2015 and the Board finds that there has been substantial compliance with the relevant remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). While some of the detailed directive was not specifically complied with, as the Board has found that the Veteran was exposed to herbicides in service, this directive was substantially complied with in that the purpose of such development (verifying in-service herbicide exposure) has been accomplished. In addition, the Board remand stated that the Veteran "indicated that he was initially treated at Malcolm Grow Medical Center Andrews Air Force base after service until approximately 1993" and included a directive that "all outstanding pertinent records of treatment" at such facility should be obtained. Following this remand, an April 2015 request was made to the identified facility for treatment records from September 1982 to the present. No records from this facility, however, are currently of record. Further, there is no indication that the AOJ followed up on this request or that they determined that such records were unable to be obtained. The Board acknowledges that these records are from a Federal facility and that VA has an increased obligation in regard to obtaining records in the custody of a Federal department or agency. See 38 C.F.R. § 3.159(c)(2) (2016). As will be outlined below, the Veteran's claim is being denied primarily on the basis that there is no nexus between his current prostate disability and his active service. The post-service records from Malcolm Grow Medical Center would likely not address this primary reason for denial and therefore a remand to obtain any such records would likely be of no benefit to the Veteran and is therefore not necessary. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). With respect to the previously mentioned Board hearing, the VLJ clarified the issue at the beginning of the hearing and specifically inquired as to whether the Veteran had prostate cancer. The VLJ inquired as to the existence of outstanding records and explained the concept of service connection. The actions of the VLJ supplemented the VCAA (Veterans Claims Assistance Act of 2000) and complied with 38 C.F.R. § 3.103(c) (2016). The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4) (2016). Under 38 U.S.C.A. § 5103A(d) (West 2014), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that the an event, injury or disease occurred in service; (3) an indication that the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. With respect to the prostate disability claim, the Veteran was not afforded a VA examination and no VA opinion was obtained. The Board, however, finds that no VA examination or opinion is necessary for this claim, which will be discussed further below. In conclusion, VA has met all statutory and regulatory notice and duty to assist provisions with respect to this issue. Legal Criteria Generally, in order to establish direct service connection, three elements must be established. These elements are: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service," which is often referenced as the "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As noted above, if a Veteran was exposed in-service to certain herbicide agents (e.g., Agent Orange), service connection for certain diseases will be presumed. As outlined above, the Board has found that the Veteran was exposed to herbicides in service. The diseases that are entitled to presumptive service connection based on herbicide exposure include prostate cancer. Evidence & Analysis In a March 2009 statement, the Veteran referenced a claim for entitlement to service connection for a prostate condition. In an August 2015 statement, the Veteran stated that "the conditions I suffer with are [Agent Orange] presumptive in nature and include...prostate disability." The Veteran's representative's October 2016 Post-Remand Brief stated that "the Board should find that...the [V]eteran was exposed to herbicides...and therefore, service connection is warranted for the...prostate problems." The Veteran's STRs included a February 1973 STR that noted pain in the rectal area for an unknown time and no history of problem. The note is very difficult to read due to the handwriting, but may reference that the prostate was large but not tender at all. It is unclear as to what the impression was, other than a question mark prior to the words. Subsequent November 1974 and October 1978 examination reports noted upon clinical evaluation normal anus and rectum (with "Prostate, if indicated" listed in parenthesis). A February 1982 retirement examination report noted upon clinical evaluation that the anus and rectum were normal, with a notation that the rectum and prostate were normal on digital exam. On an accompanying Report of Medical History form, the Veteran reported being in good health and denied ever having or having now frequent or painful urination. Various evidence indicated that the Veteran has benign prostatitic hypertrophy (BPH). BPH was noted on the initial VA treatment note of record from March 2007 and was noted as recently as a November 2016 VA treatment note. Private medical records from the None Suffer Lack Center noted an impression of BPH as far back as October 1993. At the October 2014 Board hearing, the Veteran stated that "I have a prostate condition. I don't have prostate cancer. I have, I guess it's an enlarged prostate." The Veteran also reported that he could not remember how many years he had a prostate condition, but that it was more than 10 years. See October 2014 Board Hearing Transcript, pages 13-14. Upon review, the Board concludes that entitlement to service connection for a prostate disability is not warranted. Initially, entitlement to service connection is not warranted based on the presumption regarding herbicide exposure. As noted above, the Board has found that the Veteran was exposed to herbicides in service and service connection for certain diseases will be presumed on the basis of such exposure. While prostate cancer is eligible for presumption service connection based on herbicide exposure, the evidence does not indicate that the Veteran has prostate cancer and at the October 2014 Board hearing he explicitly stated that he did not have prostate cancer. With respect to the prostate and herbicides, presumptive service connection is limited to prostate cancer and does not include other prostate disabilities, such as BPH. See 38 C.F.R. § 3.309(e) (2016). As such, entitlement to service connection for a prostate disability, to include BPH, is not warranted on the basis of the presumption regarding herbicide exposure. While entitlement to service connection is not warranted based on presumptive service connection, entitlement to service connection may still be established with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted, the Veteran's STRs included a difficult to read February 1973 STR that noted pain in the rectal area for an unknown time and no history of problem, that may have referenced that the prostate was large but not tender at all and included an unclear impression, other than a question mark prior to the words. Subsequent November 1974 and October 1978 examination reports noted upon clinical evaluation normal anus and rectum, to include the prostate. In addition, a February 1982 retirement examination report noted upon clinical evaluation that the anus and rectum were normal, with a notation that the rectum and prostate were normal on digital exam, and noted no relevant defects. Also, on an accompanying Report of Medical History form the Veteran reported being in good health and denied ever having or having now frequent or painful urination. As such, the STRs did not indicate the presence of any in-service prostate disability and the Veteran has not otherwise contended such. While the unclear February 1973 STR may have referenced that the prostate was large, based on the question mark noted prior to the words under the impression section, it does not appear any disability was identified. In addition, the subsequent November 1974 and October 1978 examination reports noted upon clinical evaluation that the anus and rectum (with "Prostate, if indicated" listed in parenthesis) was normal and the February 1982 retirement examination report noted that the prostate was normal on digital exam. The Veteran has not otherwise reported that he had prostate problems while in service. There is no indication that the Veteran's current prostate disability, to include BPH, is related to symptoms identified in the February 1973 STR. Subsequent examinations in-service did not note any prostate disabilities. In addition, the Veteran at the October 2014 Board hearing reported that he could not remember how many years he had a prostate condition and the earliest medical record of record reflecting a diagnosis of BPH was from October 1993. Overall, the only in-service event referenced by the Veteran was his in-service herbicide exposure. To this point, however, no competent evidence is of record that indicates a relationship exists between the Veteran's current prostate disability, to include BPH, and his herbicide exposure. To the extent that the Veteran (and his representative) has contended such, the Veteran is not competent to attribute his current prostate disability to his in-service herbicide exposure, as this is a complex medical question beyond the competence of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, the Veteran has not otherwise stated that a competent medical professional has made such attribution. In other words, there are no Jandreau type exceptions. The Board notes that the Veteran was not afforded a VA examination and that no VA opinion was obtained regarding this claim, but concludes that such is not necessary. The circumstances under which VA has a duty to provide a VA examination or obtain a VA opinion were noted above. As discussed, there was competent evidence of a current disability. However, the evidence of record does not contain an indication that the current prostate disability may be associated with the Veteran's active service. As such, pursuant to McLendon, a VA examination and/or VA opinion is not warranted. In summary, the Board finds that a prostate disability was not manifest during active service and the Veteran does not have a prostate disability that is related to his active service, to include herbicide exposure. As such, the Board concludes that a prostate disability was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). The criteria for entitlement to service connection for a prostate disability have therefore not been met and to this extent he Veteran's claim is denied. ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for peripheral neuropathy of the upper extremities is granted. Entitlement to service connection for peripheral neuropathy of the lower extremities is granted. Entitlement to service connection for a prostate disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs