Citation Nr: 1804986 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-11 421A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide-agent exposure. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a skin condition, to include as secondary to a service connected condition or as due to herbicide-agent exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1968 to June 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified before the Board at an August 2015 hearing conducted at the RO. A transcript of the hearing is of record. This matter was previously before the Board in January 2016. The issues of entitlement to service connection for hypertension and a skin condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Granting reasonable doubt in the Veteran's favor, the Veteran was exposed to herbicide agents during his active duty service in the Republic of Vietnam. 2. The Veteran's diabetes mellitus, type II, is presumed to have been caused by herbicide-agent exposure during active duty service. CONCLUSION OF LAW Diabetes mellitus, type II, is presumed to be incurred in service. 38 U.S.C. §§ 1110, 1112, 1116 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that entitlement to service connection for diabetes mellitus, type II, is warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a 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' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The record clearly establishes the first element of service connection, the presence of a current disability. The May 2016 VA examination reported the Veteran's diagnosis of diabetes mellitus, type II. Thus, the first element is met. For the second element - an in-service injury - the Board finds this element is met, when resolving reasonable doubt in favor of the Veteran. VA presumes herbicide-agent exposure for any veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. "Service in the Republic of Vietnam," includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The evidence must establish that that the Veteran actually stepped foot in Vietnam for the presumption to apply. See Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. In this case, the Veteran testified at the August 2015 hearing that he flew to Da Nang and stayed two nights there while waiting for transport via mail plane to the USS Shangri La. Personnel records confirm that the Veteran was transferred to the USS Shangri La on July 31, 1970 and reported on September 9, 1970. Naval records demonstrate that the USS Shangri La was in the official waters of Vietnam from August 30, 1970, to September 30, 1970. The Board therefore finds a reasonable doubt exists as to whether the Veteran could have been waiting in Da Nang for transfer to the USS Shangri La while it was in the official waters of Vietnam, and in-service exposure to herbicide agents is accordingly conceded. See 38 C.F.R. § 3.102. Finally, a nexus is established. Diabetes mellitus, type II, is presumed to be service connected for all veterans exposed to herbicide agents in service when the disease manifests to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Diagnostic code 7913 grants a 20 percent rating where the veteran requires insulin and a restricted diet. A September 2015 private medical provider indicated that the Veteran requires insulin and a restricted diet to treat diabetes mellitus, type II. Accordingly, a manifestation of at least 10 percent disability is shown and service connection for diabetes mellitus, type II, is presumed. ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. REMAND Remand is necessary to perform additional development. First, missing documents must be uploaded to the Veteran's electronic claims file, including the claim, notice of disagreement, notice under the Veterans Claims Assistance Act, and Veteran statements and private treatment records referenced in the September 2013 statement of the case. Moreover, an additional VA medical opinion is necessary with regard to the Veteran's hypertension claim. A May 2016 VA medical opinion cited the lack of a hypertension diagnosis in the Veteran's service treatment records (STRs) as the basis for its determination that hypertension was not incurred in or caused by any incident of service. A September 2013 VA memorandum, however, found that the Veteran's STRs were unavailable. Thus, the lack of a diagnosis in the STRs cannot act as support for the VA medical opinion, as no STRs were available for review. A new opinion with an appropriate rationale is accordingly required. Finally, remand is necessary to provide an additional VA medical opinion for skin conditions. The May 2016 VA medical opinion stated that some of the Veteran's skin conditions "can be from sun damage over years" but did not otherwise address the causation of the conditions. Additionally, the opinion addressed herbicide-agent exposure as a potential cause for skin cancer but not for the Veteran's other diagnosed conditions. A new opinion is therefore required. Accordingly, the case is REMANDED for the following action: 1. Locate the Veteran's claim, notice of disagreement, notice under the Veterans Claims Assistance Act, and Veteran statements and private treatment records referenced in the September 2013 statement of the case. These documents should be associated with the electronic claims file. 2. Return the claims file to the clinician who provided the May 2016 VA medical opinion. If the clinician is not available, the claims file must be provided to another clinician with the appropriate expertise to render the requested opinion. The clinician must address the following: a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's hypertension is etiologically related to his active duty service, to include presumed exposure to herbicide agents? b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed skin condition is etiologically related, in whole or in part, to his active duty service, to include presumed exposure to herbicide agents and/or sun exposure? c) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed skin condition is caused or aggravated (beyond its natural progression) by the Veteran's diabetes mellitus? The clinician is requested to provide a complete rationale for any opinion expressed based on the clinician's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Review the record to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. If the benefit is not fully granted, issue a supplemental statement of the case and provide the appellant and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs