Citation Nr: 18140006 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-34 768 DATE: October 2, 2018 ORDER Entitlement to service connection for Diabetes Mellitus, Type II (DM), claimed as secondary to Agent Orange exposure, is granted. REMANDED Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected DM, is remanded. Entitlement to service connection for bilateral upper extremity neuropathy, claimed as secondary to service-connected DM, is remanded. Entitlement to service connection for bilateral lower extremity neuropathy, claimed as secondary to service-connected DM, is remanded. FINDINGS OF FACT 1. Herbicide exposure is conceded as the Veteran served in the United States Army, was stationed at the Royal Thai Air Force Base (RTAFB) in Udorn, Thailand, and performed duties at the RTAFB in Ubon, Thailand, where his duties regularly placed him along the base perimeter. 2. DM was diagnosed following service. CONCLUSION OF LAW DM is related to inservice herbicide exposure. 38 U.S.C. §§ 1110, 1116, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from February 1970 to February 1973. The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge in July 2018. A transcript of the hearing is of record. Diabetes Mellitus If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases 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). The Board notes that the Veteran's service personnel records show that he served in Thailand at the RTAFB in Udorn with a MOS of Morse Code Interceptor. The Veteran has also testified, as will be discussed in more detail below, as to having performed additional duties along the perimeter RTAFB in Ubon. VA has established specific procedures for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). 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 as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." 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. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C 10(q). The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes 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, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, 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 Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange (AO) is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). The Veteran maintains exposure to Agent Orange on two fronts. He maintains that he was stationed at Udorn for approximately seven and one-half months. He has indicated that he was subsequently transferred to Ubon. He noted that they had no billeting on the Air Force Base so they were put up in a hotel. However, their actual installation was on the very end of the runway close to the perimeter. It was away from all the other facilities on the base and they were the only installation close to the runway. The Veteran indicated that when taking a break at night from his Morse Code duties, they would use their lights to attract bugs which would attract bats. The Veteran stated they would throw rocks at the bats and the rocks would hit the fence line. He indicated that this demonstrated how close they were to the perimeter. He testified that he did this for about four months. He also noted that the base decided that they wanted to build a fire pit, bunkers, and a tower. He stated that he and two others performed these tasks. He noted that they had to do things with hand tools as they were not given power tools. He performed these tasks right near their facility which was close to the perimeter. He stated that the perimeter was no more than 30 yards away when performing all these tasks. In support of his claim, the Veteran submitted a photograph of the Ubon facility. Although there is no record of assignment to perimeter duty, the Board finds the Veteran's consistent assertions regarding time spent near the perimeter of the RTAFB in Ubon to be credible. Therefore, as there is no basis on which to question the Veteran's credibility and no evidence in the record to contradict his claims of perimeter contact, the Board finds that the Veteran was exposed to herbicide agents while he was stationed at the Royal Thai Air Force Base in Ubon during the Vietnam era. See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q). Affording the Veteran the full benefit of the doubt, the Board finds that he was exposed to herbicides while serving in Thailand. Treatment records associated with the file contain numerous diagnoses of DM. Affording the Veteran the full benefit of the doubt, the Board finds that he was exposed to herbicides while serving in Thailand and that his DM is deemed related to herbicide exposure in service. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim is granted. REASONS FOR REMAND Erectile Dysfunction, Bilateral Upper Extremity Neuropathy, Bilateral Lower Extremity Neuropathy, All Claimed as Secondary to Service-Connected DM The Veteran has not been afforded VA examinations during the course of the appeal as it relates to any of the above-claimed disabilities. Service connection has now been granted for DM. The Veteran maintains that he currently has bilateral upper and lower extremity neuropathy that is either caused or aggravated by his now service-connected DM. The Veteran further maintains that that he currently has ED resulting from his service-connected DM, to include as a result of medications taken for his DM. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998)., 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). Given the foregoing, the Veteran should be afforded VA examinations to determine the etiology of any current bilateral upper and lower extremity neuropathy and erectile dysfunction, and their relationship, if any, to his period of service and/or his service-connected DM. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for a VA examination to determine the etiology of any current bilateral upper and lower extremity neuropathy. The examiner must review the claims file in conjunction with the examination. The examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current bilateral upper and/or lower extremity neuropathy is etiologically related to the Veteran's period of service? If not, is it as likely as not (50 percent probability or greater) that any current bilateral upper and/or lower extremity neuropathy is caused by the service-connected DM? If not, is it at least as likely as not (50 percent probability or greater) that any current bilateral upper and/or lower extremity neuropathy is aggravated by the service-connected DM? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for each rendered opinion. 3. Schedule the Veteran for a VA examination to determine the etiology of any current erectile dysfunction. The examiner must review the claims file in conjunction with the examination. The examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current erectile dysfunction is etiologically related to the Veteran's period of service? If not, is it as likely as not (50 percent probability or greater) that any current erectile dysfunction is caused by the service-connected DM, to include medications taken for his DM? If not, is it at least as likely as not (50 percent probability or greater) that any current erectile dysfunction is aggravated by the service-connected DM, to include medications taken for his DM? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for each rendered opinion. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S. Kelly, Counsel