Citation Nr: 1744297 Decision Date: 10/04/17 Archive Date: 10/13/17 DOCKET NO. 11-09 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, to include as due to Agent Orange exposure. 2. Entitlement to service connection for a pulmonary disorder other than tuberculosis, to include as due to asbestos and/or Agent Orange exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to August 1963. He also served in the National Guard between April 1965 and August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Board, in part, remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. The Board remanded the issue of service connection for a respiratory disorder, including TB. While on remand, the RO granted service connection for TB, but not for any other respiratory disorders. This grant of service connection constitutes a full award of the benefits sought on appeal with respect to that issue. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Accordingly, the issue is as stated above. Furthermore, the record currently available to the Board indicates that the Veteran did not initiate an appeal with the initial ratings or effective dates. Thus, those matters are not in appellate status. See Grantham, 114 F.3d at 1158. The issue of entitlement to service connection for a pulmonary disorder other than TB, to include as due to asbestos and/or Agent Orange exposure is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Board finds that the Veteran's service included duty or visitation to the RVN while on TDY from Laos during the Vietnam War. 2. The Veteran has a current diagnosis of diabetes mellitus type II. CONCLUSION OF LAW Diabetes mellitus type II is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5017 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307(a)(6)(ii); 3.309(e) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board is granting service connection for diabetes mellitus type II, the decision is favorable to the Veteran and therefore there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016). The Veteran seeks service connection for diabetes mellitus, type II as secondary to Agent Orange exposure in the RVN. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Pertinently, if a veteran was exposed to Agent Orange during service, certain listed diseases, including diabetes, are presumptively service-connected if they manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6). A Veteran who, during active military, naval, or air service, 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 such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). 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 RVN. 38 C.F.R. § 3.307 (a)(6)(iii). Service in the Republic of Vietnam requires the service member's presence at some point on the landmass or the inland waters of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), see also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). The Board will resolve reasonable doubt and grant service connection for diabetes mellitus in the analysis below because the evidence of record supports that he set foot on the landmass of the RVN while on TDY from Laos. At the outset, the Board notes that the private and VA post-service evidence of record demonstrates a diagnosis of diabetes mellitus. Thus, the crux of the claim for service connection hinges on whether the Veteran set foot on the landmass of the RVN during the prescribed period (i.e., January 9, 1962 to May 7, 1975). In reviewing the evidence of record, the Board recognizes that there is no definitive record showing that the Veteran stepped foot on the landmass of the RVN. The Veteran contends that he made incursions into Vietnam while stationed in Laos, and that his military records relating to this were classified by the Central Intelligence Agency and/or the service department. See January 2010 Veteran statement that he crossed into Vietnam from Laos with "a unit called White Star;" August 2010 Veteran statement that he entered and left Laos via Vietnam; Veteran's April 2011 substantive appeal. In a November 2014 statement, the Veteran specified that his travel to Laos began in Okinawa, Japan then continued to Clark Air Base, Philippines and finished in Saigon, South Vietnam, where he spent several hours being detained secondary to having carried a military weapon. The Veteran indicated that he left the RVN and proceeded to Bangkok, Thailand and then to Vientiane, Laos. See November 2014 Veteran statement. Military personnel records confirm that the Veteran traveled from Okinawa, Japan to Vientiane, Laos from August 12, 1961 to January 30, 1961 and June 4, 1962 to June 6, 1962. These records also confirm that the Veteran served on TDY to Laos from January 1962 to June 1962. In support of the claim, the Veteran submitted copies of his passports while on TDY to Southeast Asia reflecting that he had visited Saigon, RVN en route to Vientiane, Laos on April 2, 1962. Evidence against the claim includes an October 2016 Administrative Decision which indicated that the Joint Services for Records and Research Center (JSRRC) concluded that the Veteran did not have any exposure to Agent Orange in Laos for the calendar year 1962 and that the evidence did not support did not show in-country RVN service. In reviewing the evidence of record, the Board finds that the evidence of record indicates that the Veteran was in the RVN. Although no one piece of evidence is dispositive in this case, the Veteran's contention of having landed and disembarked in the RVN while on TDY en route to Laos is consistent with the information contained in his military personnel records. The Veteran's credibility is bolstered by the accompanying evidence of record. As explained above, the Veteran's military personnel records confirm that he traveled from Okinawa, Japan to Vientiane, Laos from August 12, 1961 to January 30, 1961 and June 4, 1962 to June 6, 1962. These records also confirm that the Veteran served on TDY to Laos from January 1962 to June 1962. More importantly, copies of the Veteran's passports on TDY to Southeast Asia reflect that he was in Saigon, RVN en route to Vientiane, Laos on April 2, 1962. In light of the Veteran's consistent and credible statements and copy of his passport reflecting that he was in Saigon, RVN en route to Vientiane, Laos on April 2, 1962, the Board finds that the Veteran's military service involved visitation or duty in the RVN for VA purposes under 38 C.F.R. §§ 3.307 and 3.309. He was therefore exposed to an herbicide agent within the meaning of VA law. As noted previously, the medical evidence shows that the Veteran has been diagnosed with diabetes mellitus type II, a disease subject to the presumption of service connection under 38 C.F.R. §§ 3.307 and 3.309. Therefore, service connection for diabetes mellitus type II is granted. ORDER Service connection for diabetes type II as due to Agent Orange exposure is granted. REMAND The Board finds that prior to further appellate review of the claim for service connection for a pulmonary disorder other than tuberculosis, additional substantive development is required. Specifically, to obtain an addendum opinion from the VA physician who examined the Veteran in January 2016. The Veteran claims service connection for a respiratory disorder other than tuberculosis as secondary to asbestos from contaminated communications equipment and Agent Orange exposure while on incursions into the RVN while on TDY in Laos. See Veteran's September 2013 statement to VA. In October 2015, the Board remanded this claim to schedule the Veteran for a VA respiratory examination to determine the etiology of any diagnosed pulmonary disability (other than tuberculosis). The Board requested that the examiner specifically identify the Veteran's current pulmonary disorders and their likely etiology. In this regard, the examiner was requested to discuss any relationship with the diagnosed pulmonary disorders to asbestos and herbicide exposure, and service in Southeast Asia. See October 2015 Board remand, pp. 11-12. In January 2016, a VA examiner opined that the Veteran did not have any other respiratory disability other than inactive pulmonary tuberculosis. See January 2016 Disability Benefits Questionnaire (DBQ). However, the Board notes that a November 2010 treatment reports reflects that he had received treatment for pleurisy. See November 2010 VA treatment report. Thus, even though the January 2016 VA examiner determined that the Veteran did not have any diagnosed respiratory disability (other than tuberculosis), a current disability exists if the diagnosed disability is present at the time of the claim or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, in view of the November 2010 findings of pleurisy during the pendency of the appeal, a remand is necessary to obtain an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the January 2016 Respiratory DBQ or, if this examiner is unavailable, to another with the appropriate medical expertise, for an addendum opinion. If the examiner determines that an additional physical examination of the Veteran would be beneficial, one is to be arranged. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. Following a review of the claims file, and physical examination of the Veteran if performed, the January 2016 examiner (or other qualified clinician) must offer an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's diagnosed pleurisy in November 2010 had its onset or is otherwise etiologically related to his period of active service, to includes asbestos exposure and Agent Orange exposure. The examiner should specifically comment on a June 1963 separation examination report that found minimal pleural thickening in the right apex on chest-x-ray and post-service clinical evidence of pleurisy in November 2010. The examiner is advised that the Veteran's exposure to Agent Orange in the RVN has been confirmed. In addition, the examiner is also requested to address the Veteran's contention that he was exposed to asbestos-laden communications equipment during his active duty service. 2. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs