Citation Nr: 1801513 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-03 571A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II (DM, Type II), to include as due to exposure to herbicide agents. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for onychomycosis. 4. Entitlement to service connection for a gastrointestinal disability, claimed as diverticulitis and diagnosed as diverticulosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1968 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that testimony is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for hypertension, onychomycosis, and gastrointestinal disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents while serving at Ubon Royal Thai Air Force Base during the Vietnam Era. 2. The Veteran has a current diagnosis of diabetes mellitus, type II. CONCLUSION OF LAW The Veteran's diabetes mellitus, type II is presumed to have been incurred in service, therefore the criteria to establish entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I.. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection for Diabetes Mellitus, Type II Pertinent Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including diabetes, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). 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). In this case, the Veteran did not serve in the Republic of Vietnam, but did serve at Ubon Royal Thai Air Force Base in Thailand during the Vietnam era. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. VA concedes herbicide agent exposure for United States Air Force Veterans who served in Thailand during the Vietnam era at certain RTFABs, to include Ubon RTAFB, if they served as security policemen, security patrol dog handlers, members 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. See, VA Adjudication Procedures Manual M21-1.IV.ii.1.H.5.b. Furthermore, VA has acknowledged that C-123 aircraft were used to spray herbicide agents from 1962 to 1971, as part of Operation Ranch Hand. Veterans who regularly and repeatedly operated, maintained, or served on board C-123 aircraft are presumed to have been exposed to herbicide agents. See Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft, Institute of Medicine, 2015. When a Veteran is presumed exposed to an herbicide agent, a presumption of service connection arises under 38 C.F.R. § 3.309(e) if that Veteran develops one of several enumerated conditions associated with herbicide agent exposure, to include diabetes. The enumerated diseases shall be service connected, even if there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. §3.309 (e). Analysis Records from New Orleans VA Medical Center show that the Veteran received a diagnosis of DM, Type II in October 2012, and the first criteria of service connection has been established. At issue is whether VA can presume that the Veteran was exposed to herbicide agents during service. According to the Veteran's military personnel record, he served at Ubon RTAFB from July 1969 to July 1970. His military occupational specialty (MOS) at that time was Jet Engine Mechanic. According to Joint Services Records Research Center (JSRRC) communications in prior cases before the Board, C-123 aircraft used in the tactical spraying of herbicide agents are known to have transited Ubon RTAFB during the time of the Veteran's service. The Veteran has testified that, as a Jet Engine Mechanic, he was responsible for maintenance on all of the aircraft that landed at Ubon RTAFB. In addition to F-4 Phantoms and C-130s, the Veteran specifically identified C-123s as aircraft that he worked on. He stated that his job caused him to work both around and inside the aircraft. See Board Hearing Testimony, October 2017, pp. 10-13. The Veteran is competent to provide this information and has shown no reason for the Board to question his credibility on the issue. Given that the Veteran's MOS required him to work on and around aircraft, the fact that C-123s were used to spray herbicide agents and were known to have transited Ubon RTAFB, the Veteran's competent testimony, and resolving all reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran was exposed to herbicide agents during service in Thailand. Accordingly, since DM, Type II is a disease presumed by 38 C.F.R. § 3.309(e) to be linked to exposure to herbicide agents, and the Veteran has a confirmed diagnosis of DM, Type II, entitlement to service connection is warranted. ORDER Service connection for diabetes mellitus, type II is granted. REMAND Hypertension and Onychomycosis VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the claim for hypertension, the Veteran has a current diagnosis. Although the record does not provide a definitive date of onset, it pre-dates all medical records on file. In the October 2017 hearing, the Veteran testified that hypertension was diagnosed shortly after his separation from service. Furthermore, the Veteran has theorized that hypertension must be related to service, considering its early onset and his lack of risk factors. The Veteran has not been afforded a VA examination for hypertension and the record does not contain sufficient information to make a decision on the claim, therefore VA is obliged to provide an examination. Regarding the claim for onychomycosis, the record shows multiple courses of treatment for a fungal infection of the foot and the Veteran testified that it has been recurring since service. The Veteran, as a layperson, is competent to testify to observable symptomatology. The Veteran has not been afforded a VA examination for onychomycosis, and the record does not contain sufficient information to make a decision on the claim, therefore VA is obliged to provide an examination. Furthermore, in the October 2017 hearing, the Veteran claimed that he sought treatment with the VA shortly after separation from service for a toenail fungus. The claims file shows VA treatment records that date back only to 2008. VA has a duty to obtain all VA records that are relevant to the claim. If there are records in existence that pre-date those already associated with the file, the RO should afford the Veteran the opportunity to identify the provider and then obtain any outstanding records. Diverticulosis Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obliged, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion will be considered adequate when it is based upon consideration of the Veteran's prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board's "evaluation of the claimed disability will be a fully informed one." Id.; Green v. Derwinski, 1 Vet. App., 121, 124 (1991). Furthermore, an adequate examination requires that the examiner providing the report or opinion be fully cognizant of the Veteran's past medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In September 2014, the Veteran underwent a VA intestinal conditions examination. There, the examiner noted that a 2006 colonoscopy yielded a diagnosis of diverticulosis. The examiner concluded that it was less likely than not that diverticulosis was related to gastric complaints in service, but did not provide a medical rationale explaining the conclusion. Therefore a new opinion is necessary that provides a full medical explanation for any conclusions reached. Additionally, at the October 2017 hearing, the Veteran claimed that he had been dealing with gastrointestinal issues since shortly after service and that he underwent a colonoscopy in the 1970s that revealed a diagnosis of diverticulitis. The examiner should consider this testimony when evaluating the record. The RO should also afford the Veteran an opportunity to identify the provider of the colonoscopy and should attempt to obtain the medical records associated with it. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran an opportunity to identify any outstanding records from VA medical centers where he received treatment, to include the treatment he identified for toenail fungus after separation from service. Obtain copies of records pertaining to any VA treatment not currently associated with the Veteran's file. 2. Provide the Veteran an opportunity to identify any relevant outstanding records from private medical providers, to include the treatment and colonoscopy he identified as having received in association with gastrointestinal issues in the 1970s. Ask the Veteran to provide a release for any records identified. If he provides the necessary release, assist him in obtaining the records identified, following the procedures set forth in 38 C.R.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence should be associated with the claims file. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for: a. A VA examination for hypertension. The entire claims file, to include a complete copy of the REMAND must be made available to the physician designated to examine the appellant, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current vascular disabilities. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by service. The physician should also render an opinion as to whether it is at least as likely as not that the disability is caused or aggravated by any other service-connected disability, to include diabetes mellitus, type II. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an identification of the evidence used to reach any conclusion and the medical significance of such evidence. If the examiner determines that the absence of evidence is medically significant, he or she should explain the reasoning for its significance. b. A VA examination for skin conditions. The entire claims file, to include a complete copy of the REMAND must be made available to the physician designated to examine the appellant, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current skin condition disabilities. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of disease or injury incurred in or aggravated by service. The physician should also render an opinion as to whether it is at least as likely as not that the disability is caused or aggravated by any other service-connected disability, to include diabetes mellitus, type II. In rendering this opinion, the examiner should consider the Veteran's competent lay testimony that he experienced "jungle rot" during service and continued to experience skin conditions of the foot after separation from service. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an identification of the evidence used to reach any conclusion and the medical significance of such evidence. If the examiner determines that the absence of evidence is medically significant, he or she should explain the reasoning for its significance. 4. Arrange for an appropriate VA examiner to provide an opinion regarding the Veteran's gastrointestinal conditions. The entire claims file, to include a complete copy of the REMAND must be made available to the examiner designated to provide the opinion, and the opinion should include discussion of the Veteran's documented history and assertions. Once the file has been fully reviewed, the examiner should identify all current diagnosed disabilities of the gastrointestinal system. The examiner should then provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any current disability is etiologically related to the Veteran's military service. In providing this opinion, the examiner should address: a. The October and December 1969 incidents of abdominal pain, nausea, and vomiting documented in the Veteran's service treatment records. b. The Veteran's claims, as noted in his hearing testimony, that he experienced frequent gastrointestinal problems during service. c. The Veteran's claim that he sought medical treatment in the 1970s for gastrointestinal issues and underwent a colonoscopy that resulted in a diagnosis of diverticulitis. d. The 2006 colonoscopy that resulted in a diagnosis of diverticulosis. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an identification of the evidence used to reach any conclusion and the medical significance of such evidence. If the examiner determines that the absence of evidence is medically significant, he or she should explain the reasoning for its significance. If the examiner determines that it is not possible to provide an accurate medical opinion without a current examination, the Veteran should be afforded a new intestinal conditions examination. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs