Citation Nr: 1801618	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-18 685	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for ischemic heart disease (IHD), to include hypertrophic cardiomyopathy, to include as due to herbicide exposure.

2.  Entitlement to service connection for hypertension, to include as due to herbicide exposure.

3.  Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure.

4.  Entitlement to service connection for neuropathy of the lower extremities, to include as due to herbicide exposure.


REPRESENTATION

Veteran represented by:	Elizabeth F. Lunn, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. M. Stedman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1965 to February 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
 
In December 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing has been associated with the claims file.

The issue of entitlement to service connection for neuropathy of the lower extremities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  The Veteran was exposed to herbicides while serving in Thailand at Udorn Royal Thai Air Force Base (RTAFB) from October 1967 to November 1968.

2.  The Veteran has been diagnosed with diabetes mellitus, type II.

3.  The Veteran has been diagnosed with ischemic heart disease, including coronary artery disease and hypertrophic cardiomyopathy.

4.  At his hearing before the Board in December 2016, the Veteran expressed his wish to withdraw the appeal of the claim for service connection for hypertension.   



CONCLUSIONS OF LAW

1.  The Veteran's diabetes mellitus, type II, is presumed to have been incurred during his active service in Thailand.  38 U.S.C. §§ 1101, 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(e) (2017).

2.  The Veteran's ischemic heart disease, including coronary artery disease and hypertrophic cardiomyopathy, is presumed to have been incurred during his active service in Thailand.  38 U.S.C. §§ 1101, 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(e) (2017).

3.  The criteria for withdrawal of an appeal with respect to the claim for service connection for hypertension are satisfied.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Diabetes Mellitus, Type II , and Ischemic Heart Disease, to include Hypertrophic Cardiomyopathy

The Veteran asserts that his diabetes mellitus, type II, and heart disease are the result of his active duty service.  Specifically, he asserts these conditions are due to his exposure to herbicide agents while stationed at Udorn RTAFB from November 1967 to October 1968.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent medical or lay 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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
 
If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including Type 2 diabetes mellitus and IHD, shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).  Section 3.307(d)(6) provides that 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(d)(6)(i).  Section 3.307(d)(6) also provides that 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(d)(6)(iii).

VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War.  In a May 2010 bulletin, C&P indicated that it 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.  A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. 

Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases.  Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans.  Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure."  The May 2010 bulletin identifies several bases in Thailand, including Udorn RTAFB.  C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security.

The existence of a current disability is not at issue.  Post-service treatment records show the Veteran has been diagnosed with diabetes mellitus, type II, and IHD, including coronary artery disease and hypertrophic cardiomyopathy.  See August 22, 2011 VA New Patient Note (listing diabetes mellitus, type II, and coronary atherosclerosis).  Moreover, the Veteran's service personnel records show he served in Thailand at Udorn RTAFB from November 1967 to October 1968.  Accordingly, exposure to herbicide agents may have occurred, depending on the nature and circumstances of his period of duty there.  Therefore, the only remaining question is whether the Veteran was exposed to herbicide agents in service such that presumptive service connection is warranted. 

The Veteran's military occupational specialty was that of an aerospace photo system repairman.  At the December 2016 Board hearing, he testified that he worked primarily on the flight line, and would occasionally work at the very end of the flight line, near the perimeter of Udorn RTAFB.  See December 2016 Hearing Transcript (testifying to being required to travel to the end of the flight line for certain planes).  Additionally, the Veteran testified to crossing the perimeter line three to four times a week to exit the base.  Id.  The Board finds the Veteran's descriptions and testimony to be credible and consistent with the circumstances of his service. 

Accordingly, as a factual matter, affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran was exposed to herbicide agents during his deployment to Thailand from November 1967 to October 1968.  Therefore, entitlement to service connection is warranted for diabetes mellitus, type II, and IHD, including coronary artery disease and hypertrophic cardiomyopathy.


II. Hypertension

At his hearing before the Board in December 2016, the Veteran expressed his wish to withdraw the appeal of the claim for service connection for hypertension.   The hearing testimony was reduced to writing and contains the Veteran's name and claim number.  The Veteran's withdrawal was received prior to a decision by the Board on this issue.  The criteria for withdrawal of an appeal are satisfied.  See 38 C.F.R. § 20.204(b).  



When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that was appealed.  Accordingly, the 
claim of entitlement to service connection for hypertension is dismissed.  See 38 U.S.C. § 7105(d). 


ORDER

Service connection for diabetes mellitus, type II, is granted.

Service connection for ischemic heart disease, including coronary artery disease and hypertrophic cardiomyopathy, is granted.

The claim of entitlement to service connection for hypertension is dismissed. 


REMAND

Unfortunately, the Veteran's remaining claim must be remanded for further development.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claim so he is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017).  

The Veteran's exposure to herbicides is now presumed.  38 U.S.C. § 1116(f) (2012).  As noted above, service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases.  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  The diseases associated with herbicide exposure for purposes of the presumption include early-onset peripheral neuropathy.  38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54763  (Sept. 6, 2013). 

Effective for claims pending on September 6, 2013, VA replaced the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy."  VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient, appear within weeks or months of exposure to an herbicide agent, and resolve within two years of the date of onset.  Under the amendments, peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient.  Id. 

Further, while peripheral neuropathy other than "early-onset" peripheral neuropathy is not among the diseases listed as presumptively due to herbicide exposure under 38 C.F.R. § 3.309(e), this does not obviate the need to determine whether a direct relationship exists.  See Combee v. Brown, 34 F.3d 1039  (Fed. Cir. 1994).  

In this case, there are varying diagnoses with respect to the Veteran's lower extremities from 2002 to 2008, including myopathy, neuropathy/myopathy, left lumbar radiculopathy, and sciatica.  See Treatment records from R. Roycroft, M.D., noting tenderness and numbness in the left leg on July 19, 2002; myopathy on December 23, 2002, and March 3, 2005; neuropathy/myopathy on October 11, 2003; left lumbar radiculopathy on May 23, 2005; and sciatica on January 15, 2008, May 26, 2008, and December 11, 2008.  The Veteran has not been afforded a VA examination to assess the current nature of his peripheral neuropathy of the lower extremities.  As such, he should be afforded an examination.

Finally, the Veteran's updated VA and private treatment records should be obtained and associated with the claims file.

Accordingly, the case is REMANDED for the following action:

1.  Contact Veteran and obtain the provider name, address, and approximate date of treatment for any recent non-VA treatment records that he would like VA to obtain concerning peripheral neuropathy of his lower extremities, to include R. Roycroft, M.D.  Authorized release forms should be provided.

If the Veteran properly completes and returns any authorized release forms for private treatment identified by him, reasonable efforts should be made to obtain such records and associate them with the claims file.  All efforts to obtain the identified treatment records should be documented.

2.  Make arrangements to obtain the Veteran's VA treatment records, dated from August 2012, forward. 

3.  Thereafter, schedule the Veteran for a VA neurological examination of his lower extremities.  The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination.  The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination.  

The examiner should elicit a full history from the Veteran.  Any medically indicated tests should be conducted.

The examiner must:

a.  Identify (by diagnosis) each neurological disorder of the lower extremities currently found to be present, to include any peripheral neuropathy.  In so doing, the examiner should consider the Veteran's treatment records from R. Roycroft, M.D., noting tenderness and numbness in the left leg on July 19, 2002; myopathy on December 23, 2002, and March 3, 2005; neuropathy/myopathy on October 11, 2003; left lumbar radiculopathy on May 23, 2005; and sciatica on January 15, 2008, May 26, 2008, and December 11, 2008.  

b.  Provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran had "early-onset" peripheral neuropathy, which manifested within one year after the date of his last exposure to herbicides (i.e., between October 1968 and October 1969).  In so doing, the examiner should consider the Veteran's statements that he had neuropathy in his toes as far back as the early 1970s, right after his return from service, and that at that time he could not sleep with any pressure from sheets directly on his toes.  See BVA Hearing Transcript, dated December 8, 2016.

c. Provide an opinion as to whether it is at least as likely as not that the Veteran manifests any current residuals of early-onset peripheral neuropathy.

d.  If the Veteran did/does not have "early-onset" peripheral neuropathy, provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that any current neurological disorder of the lower extremities is related to any incident of service, to include herbicide exposure. 

e.  Provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that any current neurological disorder of the lower extremities was either (i) caused by, or (ii) aggravated (i.e., worsened) by the Veteran's diabetes mellitus, type 2.

The examiner must provide a complete rationale for all opinions provided.  If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered.  

4.  Finally, after completing any other development that may be indicated, readjudicate the claim on appeal.  If the benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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. §§ 5109B, 7112 (2012).




______________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs