Citation Nr: 1803621	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  15-45 857	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUES

1.  Entitlement to service connection for coronary artery disease, claimed as due to exposure to herbicide agents.  

2.  Entitlement to service connection for diabetes mellitus, type II, claimed as due to exposure to herbicide agents.  

3.  Entitlement to service connection for high blood pressure.  

4.  Entitlement to service connection for diabetic neuropathy of the left lower extremity. 

5.  Entitlement to service connection for diabetic neuropathy of the right lower extremity. 

6.  Entitlement to service connection for right total knee replacement.  

7.  Entitlement to service connection for left total knee replacement. 

8.  Entitlement to a total disability rating based upon individual unemployability (TDIU).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

S. Kim, Associate Counsel


INTRODUCTION

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) (West 2014).

The Veteran served on active duty from March 1948 to August 1957 and from August 1957 to November 1968.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  Jurisdiction is currently in the RO in Reno, Nevada. 

In November 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  

The issues of entitlement to service connection for high blood pressure, diabetic neuropathy of the bilateral lower extremities, and bilateral total knee replacements, as well as entitlement to a TDIU, 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 evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his period of service in Thailand.

2.  The Veteran's currently diagnosed coronary artery disease is presumed to be related to in-service exposure to herbicide agents. 

3.  The Veteran's currently diagnosed diabetes mellitus, type II is presumed to be related to in-service exposure to herbicide agents. 


CONCLUSIONS OF LAW

1. Resolving all reasonable doubts in the Veteran's favor, the criteria to establish service connection for coronary artery disease are met.  38 U.S.C. § 1110, 1131, 1116, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e) (2017).

2.  Resolving all reasonable doubts in the Veteran's favor, the criteria to establish service connection for diabetes mellitus, type II are met.  38 U.S.C. § 1110, 1131, 1116, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e) (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 

I.  Pertinent Law and Regulations

Service connection will be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be granted for a disability first diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d). 

Service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service.  38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  

VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H ("M21-1"). 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. Special 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. See M21-1, Part IV.ii.1.H.5.a.  If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, herbicide exposure should be conceded on a facts-found or direct basis. See M21-1, Part IV.ii.1.H.5.b.

The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309 (e).  Under 38 C.F.R. § 3.309 (e), presumptive service connection based on Agent Orange exposure is available for the following diseases: AL amyloidosis; chloracne, or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal' s angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma- Parkinson's disease; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

II.  Analysis 

The Veteran maintains that he has coronary artery disease and diabetes mellitus, type II due to exposure to herbicide agents during his service in Thailand.  

Specifically, he contends that he was exposed to herbicide agents while stationed at the Takhli Royal Thai Air Force Base during which time he served as a quality control inspector, who was charged with "be[ing] on or around the flight line inspecting  . . . aircraft and equipment on a daily basis."  See June 2016 Statement from the Veteran; see also November 2017 Hearing Tr. at 4.  He has attested his duties brought him to the perimeter to inspect airplane equipment on a daily basis.  He has also claimed that his sleeping quarters were at "the edge of the jungle" in close proximity to the perimeter during his service in Thailand.  See November 2017 Hearing Tr. at 5.

The available personnel records confirm that the Veteran was stationed at the Takhli Royal Thai Air Force Base in Thailand from November 1967 to November 1968 (during the Vietnam Era) as a quality control inspector.  His military occupational specialty during this period is also listed as "aerospace general equipment repair technician."  

The Board acknowledges that the Veteran did not serve in a position which VA has conceded as being exposed to herbicides on the base; however, the Board finds that the Veteran's statements that he was required to work on equipment which was located near the perimeter of the airfield/base to be credible evidence of such exposure.

Therefore, the Board finds that based on the Veteran's competent and credible lay statements regarding his responsibility to work on equipment located at the perimeter of the airfield as a part of his duties while serving in Thailand, all reasonable doubt should be resolved in his favor and it is at least as likely as not that he meets the criteria for conceding exposure to an herbicide agents during active military service in Thailand. See M21-1, Part IV.ii.1.H.5.b.

The remaining inquiry is whether the Veteran currently has the claimed coronary artery disease and diabetes mellitus, type II.  The clinical evidence of record demonstrates that the Veteran has both conditions, see February 2013 private treatment record from Dr. A.S. (assessing the Veteran with coronary artery disease); October 2011 private treatment note from Dr. E.A. (documenting a diagnosis for diabetes type II).  As above, the Veteran's exposure to herbicide agents in Thailand during the Vietnam Era has been conceded.  Accordingly, service connection for coronary artery disease and diabetes mellitus, type II are granted.  38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017).  The benefit of doubt doctrine has been applied where appropriate.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53.


ORDER 

Service connection for coronary artery disease is granted.  

Service connection for diabetes mellitus, type II is granted. 


REMAND

Diabetic Neuropathy of the Bilateral Lower Extremities and High Blood pressure

Specific to the service-connection claims for diabetic neuropathy of the bilateral lower extremities and for high blood pressure, the Veteran contends that such are due to in-service exposure to herbicides, or in the alternative, are secondary to his  service-connected diabetes mellitus, type II.  See April 2011 Claims; November 2017 Hearing Tr. at 9.  
To date, the Veteran has not been afforded VA examinations to address his contentions.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The examiner evaluating the claimed high blood pressure should also address the Veteran's elevated blood pressure readings during service, as reflected in July and August 1967 service examination reports (122/90 and 137/78) and in an April 1968 separation examination report (128/78).  

Total Knee Replacements 

With regard to the Veteran's service connection claims for bilateral total knee replacements, he contends that such resulted from years of physical activities during service, to include "[g]round maneuvers and crawling . . . ."  See November 2017 Hearing Tr. at 33.  Of record is a June 2016 VA Agent Orange examiner's note that the Veteran underwent bilateral total knee replacements in 2004 and in 2008 resulting in some relief of his knee symptoms.  As yet, the Veteran has not been afforded a VA examination to determine whether the claimed disabilities are due to service.  A remand is necessary to provide one.   McLendon, 20 Vet. App. at 79. 

TDIU 

The Veteran contends that he is unable to work due to his service-connected disabilities, which now includes coronary artery disease and diabetes mellitus, type II.  The question of whether the Veteran is unable to work due to his service-connected disabilities is intertwined with the assessment and assignment of an initial ratings for coronary artery disease, diabetes, type II, and the results from the  development requested below.  Upon completion, the AOJ should readjudicate entitlement to TDIU.  In so doing, the AOJ should also request that the Veteran submit a VA Form 21-8940 to file updated employment and financial information for the appellate period.

Outstanding Records 

A remand is also necessary to obtain outstanding records.  In February and April 2013, the Veteran completed authorization for release of information forms for Dr. R.J.G. who performed a knee replacement in September 2008 and for Dr. P.L. who has been treating the claimed bilateral lower extremity neuropathy conditions since January 2013.   These records have not been associated with the claims file.  While on remand, the AOJ should undertake another attempt to obtain the identified private treatment records.  The AOJ should also associate any updated VA treatment records with the Veteran's claims file and request that he identify any other outstanding private treatment records referable to his claims. 

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 with an opportunity to identify any outstanding private or VA treatment records relevant to his claims, to include private treatment records from Dr. R.J.G. and Dr. P.L.  After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 

2.  Furnish the Veteran a VA Form 21-8940 to enable him to file updated employment and financial information for the appellate period.

3.  Schedule the Veteran for an appropriate VA examination to address the claimed high blood pressure.  The electronic record, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history.   All indicated tests and studies should be undertaken. 
The examiner is asked to furnish an opinion with respect to the following questions:

(A) The examiner should confirm the diagnosis of hypertension. 

(B) For currently diagnosed hypertension, the examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to service, to include his in-service exposure to herbicide agents.  In this regard, the examiner should consider the above-referenced July and August 1967 service examination reports (122/90 and 137/78) and in an April 1968 separation examination report (128/78).  

(C) The examiner should also offer an opinion as to whether it is at least as likely as not that the claimed hypertension was caused or aggravated beyond its natural progression by his service-connected diabetes mellitus, type II.  

A complete rationale should be given for all opinions and conclusions expressed.  

4.  Schedule the Veteran for an appropriate VA examination to address the claimed neuropathy of the bilateral lower extremities.  The electronic record, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history.   All indicated tests and studies should be undertaken. 

The examiner is asked to furnish an opinion with respect to the following questions:

(A)  The examiner should identify all diagnoses pertinent to neuropathy of both lower extremities, present since the date of the claim (i.e. since April 2011), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal.

(B) For each diagnosis, the examiner should opine as to whether it is at least as likely as not (i.e. whether it is 50 percent or more probable) that any such disability had its onset in, or is otherwise related to the Veteran's military service, to include his exposure to herbicide agents during service. 

(C) For each diagnosis, the examiner should also opine as to whether such was caused or aggravated beyond its natural progression by the Veteran's service-connected diabetes mellitus, type II.  

The examiner should consider all evidence of record, including lay statements and medical records.  The rationale for all opinions offered should be provided. 

5.  Schedule the Veteran for an appropriate VA examination to address the claimed bilateral total knee replacements.  The electronic record, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history.   All indicated tests and studies should be undertaken. 

The examiner is asked to furnish an opinion with respect to the following questions:

(A)  The examiner should identify all diagnoses pertinent to bilateral total knee replacements, present since the date of the claim (i.e. since April 2011), even if such diagnosis is currently asymptomatic or resolved during the pendency of the appeal.

(B) For each diagnosis, the examiner should opine as to whether it is at least as likely as not (i.e. whether it is 50 percent or more probable) that any such disability had its onset in, or is otherwise related to the Veteran's military service, to include his competent report as to the general wear and tear of his knees during his service. 

The examiner should consider all evidence of record, including lay statements and medical records.  The rationale for all opinions offered should be provided. 

6.  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, readjudicate the Veteran's claims, to include entitlement to a TDIU, based on the entirety of the evidence.  If the claims remain 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.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).






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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 (West 2012).



_________________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).

Department of Veterans Affairs