Citation Nr: 18145595 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-13 754 DATE: October 29, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for diabetes mellitus, type II (hereinafter, “diabetes”), is reopened. New and material evidence having been received, the claim for entitlement to service connection for erectile dysfunction is reopened. Entitlement to service connection for diabetes is granted. Entitlement to service connection for a gum disease is denied. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes, is remanded. Entitlement to service connection for retinopathy, to include as secondary to diabetes, is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to diabetes, is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to diabetes, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to diabetes, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to diabetes, is remanded. Entitlement to service connection for hypertension, to include as secondary to diabetes, is remanded. Entitlement to a special monthly compensation (SMC) based on loss of use of a creative organ is remanded. FINDINGS OF FACT 1. A January 2005 rating decision denied the Veteran’s claim for entitlement to service connection for diabetes. 2. A June 2010 rating decision denied the Veteran’s claim for entitlement to service connection for erectile dysfunction. 3. The evidence received since these rating decisions includes VA medical treatment records, which indicate current diagnoses of diabetes mellitus, type II, and erectile dysfunction, as well as the Veteran’s lay statements. This evidence was not previously submitted, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 4. The Veteran served in the United States Air Force at a military base in Thailand during the Vietnam Era and had duties that took him to the base perimeter. 5. The Veteran had a diagnosis of diabetes mellitus, type II. 6. The Veteran does not have a current dental or oral disability for which service connection for compensation purposes may be granted. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of entitlement to service connection for diabetes has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for erectile dysfunction has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for diabetes have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The claim for entitlement to service connection for a gum disability, for compensation purposes, is without legal merit. 38 U.S.C. §§ 1110, 1712; 38 C.F.R. §§ 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1972 to August 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. New and Material Evidence In this case, a January 2005 rating decision denied entitlement to service connection for diabetes, on both a direct and presumptive basis, as there was no evidence of diabetes in service and the Veteran was not found to have been exposed to herbicide agents in-service based on the evidence of record at the time. As this decision was not challenged, it has become final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Additionally, a June 2010 rating decision denied entitlement to service connection for erectile dysfunction, as the disability was not clinically diagnosed, and was not found to be related to service. As this decision was not challenged, it has become final. See id. In July 2012, the Veteran filed a claim to reopen his previously denied claim of entitlement to service connection for diabetes, and for other disabilities—including erectile dysfunction—as secondary to his diagnosed diabetes. The Veteran argued that his diabetes was caused by in-service herbicide exposure. Evidence associated with the claims file since the January 2005 and June 2010 rating decisions include medical records and lay statements by the Veteran. The medical evidence indicates current diagnoses of diabetes and erectile dysfunction. Additionally, the Veteran’s lay statements detailed his experiences being around or near the perimeter or gate of the Royal Thai Air Force Based in Korat, Thailand. The Board finds this is sufficient new and material evidence to reopen both claims. The evidence is material because it relates to unestablished facts necessary to substantiate the Veteran’s claims, specifically, current diagnoses and evidence of in-service herbicide agent exposure. Additionally, this evidence is neither cumulative nor redundant, as this evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Accordingly, for all the above reasons, the Veteran’s claims for entitlement to service connection for diabetes and erectile dysfunction are reopened. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The laws and regulations pertaining to herbicide agent exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of several diseases and served on active duty in Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A disease associated with exposure to herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even if there is no evidence of such disease during the period of service. A veteran who, during active military, naval, or air service, served in Vietnam during the Vietnam Era, and has a disease listed at 38 C.F.R. § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicide agents if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). Thus, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, 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. Specifically, if a veteran served in the United States Air Force at U-Tapao, Ubon, Nakhon Phanom, Takhli, Korat, or Don Muang Royal Thai Air Force Base 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 military occupational specialty (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. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Diabetes Here, the Veteran maintains that he is entitled to service connection for diabetes due to in-service herbicide agent exposure. A review of the Veteran’s medical treatment records indicates a current diagnosis of diabetes mellitus, type II; thus, a current disability for this claim has been established. The Board notes that this disability is listed under 38 C.F.R. § 3.309(e) as a disease associated with exposure to certain herbicide agents. Turning to the issue of in-service herbicide exposure, the Veteran’s service personnel records confirm that he was stationed at the Korat Royal Thai Air Force base in Thailand from June 1973 to June 1974, during the Vietnam Era. The Board notes that the Veteran’s military occupational specialty was Communications Specialist. The Veteran indicated, in his May 2015 affidavit, that while stationed in Korat, he worked in the Communications Center, which was located directly on the flight line. He would take breaks directly outside of the Communications Center on the flight line or just off the flight line near the base perimeter. He would ride a bicycle about half a mile on the flight line or just off the flight line next to the perimeter, passing through hills and the outlying terrain. Finally, the Veteran maintained that he performed guard duties occasionally and would be stationed with a rifle at the front of the base gate. The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experience. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v Nicholson, 19 Vet. App. 362, 368 (2005). The Board also finds the Veteran’s testimony credible, despite the absence of documentation of his exposure to herbicide agents in the September 2012 Joint Services Records Research Center report of record. As herbicide exposure has been shown on a facts-found basis, the Board, resolving reasonable doubt in favor of the Veteran, finds that service connection for diabetes, as due to herbicide exposure, is warranted. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Board notes that its finding of direct herbicide exposure is limited to the specific facts of this Veteran’s case. Gum Disability The Veteran maintains that he is entitled to service connection for a gum disability, to include as secondary to the now service-connected diabetes. The Board notes that under current legal authority, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. 38 C.F.R. § 4.150 (setting forth the schedule of ratings for dental and oral conditions). Compensation is available for loss of teeth only if such loss is due to in-service trauma or disease such as osteomyelitis, and not due to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. The Board notes that upon review of the record, there is no indication that the Veteran has a currently diagnosed dental or oral disability for which service connection may be granted. Accordingly, even though the Veteran also maintained that he was entitled to service connection for a gum disability as secondary to service-connected diabetes, the Board finds that service connection is not warranted because a preponderance of the evidence does not establish that the Veteran has a current gum disability—the threshold inquiry for service connection. In conclusion, as the Veteran has not been found to have a disability for which service connection can be granted, the Veteran’s claim is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit). REASONS FOR REMAND The Veteran maintains that he is entitled to service connection for the following disabilities, to include as secondary to his now service-connected diabetes: erectile dysfunction, retinopathy, peripheral neuropathy of the bilateral upper and bilateral lower extremities, and hypertension. The Veteran also maintains that he is entitled to an award of a SMC based on the loss of use of a creative organ. The Board notes the evidence of record does not establish, nor does the Veteran or his attorney allege, that he experienced in-service symptomology for any of these disabilities. Thus, analysis and opinions under direct service connection are not warranted. A review of the Veteran’s VA medical treatment records indicates current diagnoses of erectile dysfunction, nonproliferative retinopathy, and hypertension. Further, there are instances of the Veteran reporting symptomology of peripheral neuropathy in his bilateral upper and lower extremities. There is an indication that the upper extremity peripheral neuropathy spread from the left arm to the right arm after a motor vehicle accident, but this was not specifically addressed by a physician. Further, the Veteran indicated that he thought the lower extremity peripheral neuropathy might be due to a non-service-connected back disability. However, this was also not addressed by a physician. The Board notes that the Veteran has not been provided a VA examination for any of the claimed disabilities. As there is evidence of a current diagnosis for these disabilities, and as the Veteran claims that these disabilities are secondary to his now service-connected diabetes, the Board finds that it is appropriate for the Veteran to be afforded VA examinations for his disabilities. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As the development of the erectile dysfunction claim may result in additional evidence that could affect a determination with respect to an award of SMC for loss of use of a creative organ, the two issues are inextricably intertwined and the issue of entitlement to an award of SMC must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, these matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Forward the Veteran’s electronic claims file to appropriate clinicians for examinations and opinions as to the nature and etiology of the Veteran’s erectile dysfunction, retinopathy, peripheral neuropathy of the bilateral upper and bilateral lower extremities, and hypertension. It is left to the examiner’s discretion whether to examine the Veteran. Following the review of the claims file, the examiner should identify any currently diagnosed erectile dysfunction, retinopathy, peripheral neuropathy of the bilateral upper and bilateral lower extremities, and hypertension, and provide opinions on the following: a) Regarding erectile dysfunction, whether it is at least as likely as not (a 50 percent probability or greater) that this disability was caused OR aggravated by the Veteran’s service-connected diabetes mellitus, type II. b) Regarding retinopathy, whether it is at least as likely as not (a 50 percent probability or greater) that this disability was caused OR aggravated by the Veteran’s service-connected diabetes mellitus, type II. c) Regarding peripheral neuropathy of the bilateral upper extremities, if the Veteran is found to have said disability, whether it is at least as likely as not (a 50 percent probability or greater) that this disability was caused OR aggravated by the Veteran’s service-connected diabetes mellitus, type II. The examiner is requested to address any impact from an alleged motor vehicle accident. d) Regarding peripheral neuropathy of the bilateral lower extremities, if the Veteran is found to have said disability, whether it is at least as likely as not (a 50 percent probability or greater) that this disability was caused OR aggravated by the Veteran’s service-connected diabetes mellitus, type II. The examiner is requested to address any impact from a non-service-connected back injury. e) Regarding hypertension, whether it is at least as likely as not (a 50 percent probability or greater) that this disability was caused OR aggravated by the Veteran’s service-connected diabetes mellitus, type II. A complete rationale for all opinions should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel