Citation Nr: 1803040 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-07 169A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction. 3. Whether new and material evidence has been received to reopen a claim of service connection for a heart condition (coronary artery disease (CAD)). 4. Entitlement to service connection for CAD. 5. Entitlement to service connection for chronic headaches. 6. Entitlement to service connection for emphysema, to include as a result of asbestos exposure. 7. Whether new and material evidence has been received to reopen a claim of service connection for pneumothorax. 8. Entitlement to service connection for pneumothorax. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1967 to July 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, a videoconference hearing was held with the Veteran as a witness. A transcript of the hearing has been associated with the claims file. The issues of erectile dysfunction, chronic headaches, emphysema as a result of asbestos exposure, and pneumothorax 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 has a diagnosis of diabetes, was exposed to an herbicide agent while stationed in Thailand, and served in Can Rahm Bay during the Vietnam era. 2. An unappealed November 1997 rating decision denied service connection for a heart condition because there was no evidence of a heart condition diagnosis at that time; evidence received since that decision was not of record at that time; suggests the Veteran has a CAD diagnosis; relates to an unestablished fact necessary to substantiate the underlying claim; and raises a reasonable possibility of substantiating that claim. 3. The Veteran has a CAD diagnosis, was exposed to an herbicide agent while stationed in Thailand, and served in Can Rahm Bay during the Vietnam era. 4. An unappealed November 1997 rating decision denied service connection for pneumothorax because the condition had "resolved"; evidence received since that decision was not of record at that time; suggests the Veteran may have a current disability; relates to an unestablished fact necessary to substantiate the underlying claim; and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 2. New and material evidence has been received; the claim for service connection for a heart condition (CAD) is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The criteria for service connection for CAD have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 4. New and material evidence has been received; the claim for service connection for pneumothorax is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board is granting in full the benefit sought on appeal for the claims that are being decided. Accordingly, assuming that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and does not need to be addressed. New and Material Evidence - Heart Condition and Pneumothorax In a November 1997 rating decision, the RO denied service connection claims for a heart condition because there was no heart disability shown and for pneumothorax because the disability had "resolved." The Veteran did not file a notice of disagreement within one year of that decision and accordingly that decision of the RO is determined to be final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. The Board finds, however, that new and material evidence has been received for both claims since the November 1997 final decision. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (finding that the requirement for new and material evidence raising a reasonable possibility of substantiating the claim a low threshold); 38 C.F.R. § 3.156 (a). Regarding the issue of a heart condition, private treatment records show that the Veteran has a diagnosis of and has received treatment for CAD. As the Veteran was previously denied because there was no disability shown, new and material evidence has been received to reopen the claim for service connection for a heart condition. 38 U.S.C. § 5108. Regarding the pneumothorax claim, the Veteran reported in his August 2017 hearing that he had difficulties breathing after routine activities, such as retrieving the mail. Private treatment records show that the Veteran has been diagnosed with chronic obstructive pulmonary disease (COPD) since as early as April 2009. It is unclear if the Veteran only suffers from COPD or has an additional respiratory disability encompassed by his pneumothorax claim. As the Veteran was previously denied because pneumothorax was shown to be "resolved" and the Veteran has a potentially related pulmonary issue, new and material evidence has been received to reopen the claim for service connection for pneumothorax. 38 U.S.C. § 5108. Service Connection - Diabetes Mellitus Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, the law provides a presumption of service connection for certain diseases, such as diabetes and CAD, associated with exposure to herbicide agents, even if there is no record of evidence of such disease during active service. 38 C.F.R. § 3.307, 3.309(e). Veterans who served in the Republic of Vietnam during active military, naval, or air service are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). There are no regulatory or statutory presumptions regarding herbicide exposure in Thailand. However, VA extends special consideration to allegations of herbicide exposure on a factual basis to veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, specifically the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. The duties that are considered to have placed veterans on or near the perimeter include security policeman, security patrol dog handlers, members of the security police squadron, or those who are otherwise shown to have served near the air base perimeter as evidenced by their military occupational specialty (MOS), daily work duties, performance evaluations, and other credible evidence. M21-1, Part IV, Subpart ii, 1.H.5.a, b. The record supports a finding that the Veteran had service both in Thailand and Vietnam that would have exposed him to Agent Orange. The Veteran has stated that he served in Cam Ranh Bay, Vietnam during his active service. Additionally, the Veteran's DD-214 shows that he received both the Vietnam Campaign Medal and the Vietnam Service Medal. While these awards alone do not necessarily show that the Veteran served in the Republic of Vietnam (because they include service in Thailand, Laos, or Cambodia), his credible testimony and other evidence provided to the Board are sufficient to show that the Veteran did serve in the Republic of Vietnam during the Vietnam War. Additionally, personnel records show that the Veteran served in U-Tapao from August 1975 until June 1976 and in Don Muang from June 1968 to June 1969. These periods were during the Vietnam era. The Veteran's military occupation specialty (MOS) during his time in service was a firefighter. Personnel records show that his responsibilities included responding to incidents all over the airbase, but also included other related duties "as directed by the station chief." The Veteran reported in his August 2017 hearing that part of his responsibilities included patrolling the airbase and addressing other potential hazards on the runway. The Board finds the Veteran's credible testimony to be sufficient evidence to show that he served near the perimeter of these airbases in Thailand and accordingly is assumed to have been exposed to Agent Orange. In the present case, the Board finds that the Veteran has a diagnosis of diabetes as show by his private treatment records. Diabetes is a presumptive disease under 38 C.F.R. § 3.309(e). As it has been shown that the Veteran was exposed to Agent Orange while he was stationed in Thailand and in Vietnam, service connection for diabetes is warranted under the applicable presumption. 38 C.F.R. § 3.307, 3.309. Service Connection - Heart Condition In addition to diabetes, the law provides a presumption of service connection for ischemic heart disease, to include CAD, associated with exposure to herbicide agents. 38 C.F.R. § 3.307, 3.309(e). Private treatment records show that the Veteran has been diagnosed with CAD as far back as April 2009. As previously stated, the record has shown that the Veteran was assumed to have been exposed to an herbicide agent while he was in service. Accordingly, service connection for a heart condition is warranted. 38 C.F.R. § 3.307, 3.309. ORDER Service connection for diabetes mellitus is granted. The appeal to reopen a claim for service connection for a heart condition is granted On de novo review, service connection for a heart condition (CAD) is granted. The appeal to reopen a claim for service connection for pneumothorax is granted REMAND The Board finds that a remand is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to the remaining claims. See 38 C.F.R. § 3.159. Regarding the Veteran's claim for chronic headaches, the record shows that the Veteran has reported "unusual headaches" in private treatment records since at least April 2009. Additionally, service treatment records (STRs) note that the Veteran reported headaches while he was in service. In his August 2017 hearing, the Veteran stated his belief that his headaches were caused by his exposure to various chemicals, including jet fuels and fire extinguishing chemicals. To date, an examination has not been conducted to determine if the Veteran suffers from a chronic headache disability and if such disability is related to headaches experienced in service or chemical exposure. On remand, an examination is necessary to address these questions so the Board can adjudicate the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the Veteran's erectile dysfunction, at this August 2017 hearing, the Veteran stated his belief that his diabetes caused his erectile dysfunction. As no medical opinion has been provided regarding this question, an opinion is necessary to determine if his erectile dysfunction is related to his now service-connected diabetes. Id. The need for an examination is left to the discretion of the examiner providing the opinion. Regarding the Veteran's pneumothorax and emphysema claims, a respiratory examination is needed to clarify what specific respiratory disabilities the Veteran has and whether those disabilities are related to service. Currently, private treatment records show that the Veteran has been diagnosed with COPD, but it is unclear if there are additional diseases or disabilities that affect the Veteran's respiratory system that might be encompassed by his claims for emphysema or pneumothorax. In his August 2017 hearing, the Veteran reported difficulty breathing and stated his belief that his respiratory issues were caused by chemical and asbestos exposure in service. Because no examination has been conducted for pneumothorax or emphysema, a respiratory examination is required to ascertain the Veteran's disabilities and whether they are related to service. Once those disabilities are enumerated in examination, the Board can determine which disabilities align with his pneumothorax and emphysema claims. Clemons v. Shinseki, 23 Vet App. 1, 5 (2009) (finding that the scope of a claim includes any disorder that my reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of the record). In addition to the claims before the Board, the Veteran has also recently filed a claim for COPD due to asbestos exposure, which at the time of this decision is currently awaiting an examination. If possible, the RO should attempt to coordinate the request for the pneumothorax and emphysema examination with the COPD examination. If not possible, a separate examination for the Veteran's pneumothorax and emphysema should be conducted to ensure all medical questions are addressed. Finally, the previous rating decision from November 1997 only contains information for COPD, but not for the claim of pneumothorax. The AOJ should attempt to associate with the claims file the entire November 1997 rating decision. Accordingly, the case is REMANDED for the following action: 1. The AOJ should attempt to locate and then associate with the claims file the full November 1997 rating decision that included the denial for pneumothorax. 2. The AOJ should arrange for an appropriate examination to ascertain the nature and likely cause of the Veteran's chronic headaches. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. The Veteran's entire record, including this remand, must be reviewed by the examiner in conjunction with the examination, and all indicated tests and studies must be completed. Based on this review of the record and the examination and interview of the Veteran, the examiner should provide opinions that respond to the following: a) Please identify by diagnosis each headache disability found or shown by the record (including whether the Veteran suffers from chronic headaches). b) Please identify the likely cause for each diagnosed headache disability. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in, related to, or caused by the Veteran's in-service headaches, exposure to toxic chemicals or ANY other incident during the Veteran's military service? The Board notes that the Veteran's MOS was a firefighter while he was in service and that he has submitted evidence regarding his exposure to asbestos on his firefighting uniform, various jet fuels that burned while he was extinguishing fires, and flame extinguishing and retardant chemicals that he used while he was in service. The examiner should address each of these toxins and whether they related to or cause any current headache disability. The examiner should provide a complete rationale in support of any opinions offered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 3. The AOJ should arrange for an examiner to provide an appropriate opinion to address the cause of the Veteran's erectile dysfunction. The need for an examination is left to the discretion of the examiner. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. The Veteran's entire record, including this remand, must be reviewed by the examiner in conjunction with the examination, and all indicated tests and studies must be completed. Based on this review of the record and the examination of the Veteran, if conducted, the examiner should opine whether or not the Veteran's erectile dysfunction is caused by, aggravated, or related to the Veteran's diabetes mellitus. The examiner should provide a complete rationale in support of any opinions offered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 4. The AOJ should arrange for a respiratory examination to ascertain the nature of the Veteran's respiratory disabilities, including his claim for pneumothorax and emphysema. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. The Veteran's entire record, including this remand, must be reviewed by the examiner in conjunction with the examination, and all indicated tests and studies must be completed. Based on this review of the record and the examination and interview of the Veteran, the examiner should provide opinions that respond to the following: a) Please identify by diagnosis each respiratory disability found or shown by the record. The examiner should also state whether or not the Veteran currently has a diagnosis of pneumothorax or emphysema. b) Please identify the likely cause for each diagnosed respiratory disability. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in, related to, or caused by the Veteran's exposure to any incident during the Veteran's military service? The Board notes that the Veteran's MOS was a firefighter while he was in service and that he has submitted evidence regarding his exposure to asbestos on his firefighting uniform, various jet fuels that burned while he was extinguishing fires, and flame extinguishing and retardant chemicals that he used while he was in service. The examiner should address each of these toxins and whether they relate to or cause any current respiratory disability. The examiner should provide a complete rationale in support of any opinions offered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. A detailed explanation or rationale is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). (CONTINUED ON NEXT PAGE) 5. After undertaking the above actions and any other necessary development, the AOJ should then review the record and readjudicate the claim. If the claim remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). Remanded matters must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs