Citation Nr: 1804801 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-11 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type 2. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a prostate disability. 4. Entitlement to service connection for residuals of renal carcinoma, status post-right radicular nephrectomy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from November 1968 and June 1970. During his service, he was stationed in Korea from May 1969 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran requested a Board hearing in his April 2014 VA Form 9. The hearing was scheduled for January 14, 2016, and the Veteran was notified. The Veteran failed to report for the hearing. To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear for the scheduled hearing, and he has since made no request for another hearing. Accordingly, the Board will proceed to a decision on this appeal, as if the Veteran's hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2017). The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). The issues of entitlement to service connection for hypertension, for a prostate disability and for residuals of renal carcinoma 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's unit operated in or near the demilitarized zone (DMZ) in Korea from May 1969 to June 1970, during a period in which Agent Orange use has been conceded. 2. The Veteran has a current diagnosis of diabetes mellitus, Type 2. CONCLUSION OF LAW Diabetes mellitus, Type 2, is presumed to have been incurred in active military service. 38 U.S.C. §§ 1110, 1111, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify VA's duty to notify was satisfied by a letter dated in September 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board has given consideration to the VA's duty to notify and assist. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board need not discuss in detail the sufficiency of the notice in light of the fact that the Board is granting the Veteran's claim below. Any potential error on the part of VA with regard to its duty to assist and notify has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision. II. Applicable laws and regulations The Veteran is contending that service connection is warranted for diabetes mellitus, Type 2. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The Veteran claims that his current diabetes mellitus is related to his exposure to herbicide during his military service. The Department of Defense has identified certain units as operating in the Korean DMZ during the qualifying time period of April 1968 to August 1971. Presumption of herbicide exposure is conceded to any Veteran who served in these units during that time period. 38 C.F.R. § 3.307 (a)(6) (iv). The Veteran's military personnel records show that he was assigned to the 7th Infantry Division, 1st Battalion, 73rd Armor while stationed in Camp Beavers, Korea. This is a unit identified by the Department of Defense as operating in the Korean DMZ. Therefore, the Veteran is presumed to have been exposed to herbicide during his service in Korea. The Veteran has a current diagnosis of diabetes mellitus, Type 2. See July 2016 VA treatment record; see also January 2017 VA treatment record (noting diabetes mellitus diagnosed in 2014). Diabetes mellitus is a disease associated with herbicide exposure. 38 C.F.R. § 3.309 (e), as amended by 66 Fed. Reg. 23,166, 23,169 (May 8, 2001). The Veteran's diabetes mellitus has become manifest to 10 percent or more since his service. 38 C.F.R. § 3.307 (a)(6)(ii). There has been no affirmative evidence to establish that the Veteran was not exposed to an herbicide agent during his service. As there is a current disability for a presumptive disease and it is conceded that the Veteran's unit was exposed to herbicide in Korea, service connection for diabetes mellitus as result of exposure to herbicides in granted on a presumptive basis. ORDER Entitlement to service connection for diabetes mellitus, Type 2, as a result of exposure to herbicides is granted. REMAND The Veteran claims that his prostate disability, hypertension, and residuals of renal carcinoma are due to herbicide exposure during service. As noted above, herbicide exposure is conceded for this Veteran. Although a prostate disability, hypertension and renal carcinoma are not disease associated with herbicide exposure to allow for presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran has not received examinations to determine whether his prostate disability, hypertension or residuals of renal carcinoma are due to his military service, to include exposure to herbicide. For these reasons, examinations should be provided to the Veteran prior to adjudication by the Board. Furthermore, VA itself has recognized that there is limited or suggestive evidence of an association between hypertension and Agent Orange exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308, 20309-10 (Apr. 11, 2014). The Court has in multiple memorandum decisions held that this finding must be taken into account by the Board in adjudicating claims for entitlement to service connection for hypertension, and the Board finds the Court's reasoning persuasive. See Clark v. Shinseki, No. 12-2667, 2013 WL 6729512 (Vet. App. Dec. 20, 2013 ); Rodela v. Shinseki, No. 12-2894, 2013 WL 6184952 (Vet. App. Nov. 27, 2013); King v. Shinseki, No. 12-2893, 2013 WL 5428781 (Vet. App. Sept. 30, 2013); Allsopp v. Shinseki, No. 12-1847 (Vet. App. Aug. 27, 2013). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). For these reasons, the examiner should also consider this suggestive evidence before providing an opinion as to whether hypertension is related to the Veteran's military service. The claims file suggests that the Veteran is receiving benefits from the Social Security Administration (SSA). The SSA record might include those pertinent to the disabilities at issue in this appeal. Accordingly, on remand, the AOJ must determine whether the Veteran is in receipt of SSA disability benefits, and if so, contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. Accordingly, the case is REMANDED for the following action: 1. Make a determination as to whether the Veteran is in receipt of SSA disability benefits. If so, contact SSA and request a copy of the Veteran's complete SSA disability benefits file, including any administrative decision(s) on the Veteran's application for SSA disability benefits and all of the underlying medical records. A copy of any response(s) from SSA, to include a negative reply, should be included in the claims file. All records provided by SSA also should be included in the claims file, to include uploading any disc supplied by SSA to the Veteran's electronic record. 2. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his claimed hypertension. Upon examination of the Veteran and review of the record, the examiner should provide the following opinions: a. Is it at least as likely as not that hypertension is related to his military service? b. Is it at least as likely as not that the Veteran's hypertension is related to his conceded exposure to herbicide exposure during his service in Korea? The examiner should specifically comment on the following report that notes limited or suggestive evidence of an association between hypertension and Agent Orange exposure: Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308, 20309-10 (Apr. 11, 2014). The examiner is asked to explain the reasons underlying any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his claimed prostate disability. Upon examination of the Veteran and review of the record, the examiner should answer the following questions: a. Is it at least as likely as not that a prostate disability is related to his military service? b. Is it at least as likely as not that the Veteran's prostate disability is related to his conceded exposure to herbicide exposure during his service in Korea? The examiner attention is directed to the Veteran's service treatment records that note an acute gonococci urethritis diagnosis made in January 1970 and a report of pain in penis dated in November 1969. The examiner is asked to explain the reasons underlying any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his claimed residuals of renal carcinoma. Upon examination of the Veteran and review of the record, the examiner should provide the following opinions: a. Is it at least as likely as not that residuals of renal carcinoma is related to his military service? b. Is it at least as likely as not that the Veteran's residuals of renal carcinoma is related to his conceded exposure to herbicide exposure during his service in Korea. The examiner is asked to explain the reasons underlying any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Review the examination reports to ensure that it complies with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 6. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs