Citation Nr: 18150648 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-23 092 DATE: November 15, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is granted. REMANDED Entitlement to service connection for erectile dysfunction, also claimed as loss of creative organ and consortium, to include as secondary to diabetes, is remanded. FINDING OF FACT The probative evidence of record shows that it is at least at likely as not that the Veteran had service in the Republic of Vietnam during the Vietnam Era; therefore, the Veteran is presumed to have been exposed to herbicide agents during his active service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, have been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 28, 1974 to June 27, 1978. He is a Veteran of the Vietnam Era. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran was scheduled for a video conference hearing in October 2018. The Veteran’s hearing request is deemed withdrawn as he failed to appear for the scheduled hearing or provide communication regarding such failure to appear. 38 C.F.R. § 20.704. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is granted. The Veteran claims he has diabetes mellitus, type II, due to his exposure to herbicide agents. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 U.S.C. § 1116 (f); see also 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain disabilities, to include type II diabetes mellitus, shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are otherwise met. 38 C.F.R. § 3.309 (e). 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 U.S.C. § 101 (29)(A); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (holding that a Veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). Accordingly, Veterans who served on vessels in the inland waterways of Vietnam (also referred to as “brown water”) are presumed to have been exposed to herbicide agents for VA purposes; however, Veterans who served in offshore waterways (also referred to as “blue water”) do not automatically have presumptive exposure. In order for the presumption of exposure to be extended to a “blue water” Navy veteran, the evidence must show that the Veteran’s ship operated temporarily on the inland waterways of Vietnam or that it docked to the shore or a pier. See, e.g., VBA Compensation and Pension Training Letter 10-06, at 3 (Sept. 9, 2010). In this case, the Veteran’s VA treatment records confirm that he has been diagnosed with type II diabetes mellitus. Accordingly, the record shows that the current disability element for service connection has been met, and the question remaining for consideration is whether the Veteran’s type II diabetes mellitus is, or may be presumed to be, etiologically related to his active service. The Veteran asserts that he was exposed to herbicide agents during April or May of 1975 when taking part in Operation Frequent Wind, among other operations he participated in. See August 2013 VA Form 21-0820. He alleges that he participated in evacuation and security operations in Vietnamese coastal waters while aboard the USS Dubuque and participated in security operations aboard the Pioneer Contender, with additional “cross-decking” (sharing of resources) with the USS Okinawa and USS Blue Ridge. See February 2014 Lay Statement. In February 2014, the VA issued a Formal Finding of a lack of information required to corroborate service in Vietnam. The memorandum noted review of the Veteran’s contention that he was a part of Operation Frequent Wind during the last days of the Vietnam War. The memorandum noted that the Veteran did not indicate that he disembarked in Vietnam, and that the Veteran’s service treatment records were absent for disabilities associated with herbicide agent exposure. The RO relied on these findings in denying the Veteran’s claim in its March 2014 Rating Decision and subsequent Statement of the Case. The Board acknowledges that the Veteran’s DD Form 214s do not document his reported service in the Republic of Vietnam. However, there is significant evidence indicating that the Veteran was on a naval vessel in the Republic of Vietnam in April of 1975. While the Veteran’s DD 214s do not specifically state that he had service in Vietnam, they do indicate that the Veteran had one year, one month, and fourteen days of foreign and/or sea service during his dates of active service. Similarly, a May 1975 notation on the Veteran’s awards record contained in his service treatment records indicated that he “participated in refugee evacuation operations off the coast of South Vietnam” from April 2, 1975 until April 18, 1975. The Veteran was also awarded the Armed Forces Expeditionary Medal which is, among other circumstances, awarded to those who participated in Operation Frequent Wind. See 32 C.F.R. § 578.25. Further, the Veteran was assigned to the 1st Battalion, 4th Marines 3rd Marine Division. See Service Treatment Records Received May 2013. The record indicates that the 4th Marines took part in Operation Frequent Wind, among other operations, and that 1st Battalion was deployed from March 29 to June 30 of 1975 with Amphibious Evacuation RVN Support Group, Regimental Landing Team 4, and Amphibious Ready Group ALPHA. See May 1975 Military Personnel Record. All of these facts indicate that the Veteran is at least as likely as not to have been on a vessel in inland Vietnamese waters in April 1975. The Board has also considered the document compiled for VA entitled “Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents” which contains a list of ships that operated primarily or temporarily on Vietnam’s inland waterways, ships that docked to the shore or pier in Vietnam, and ships that operated on Vietnam’s close coastal waters for extended periods of time with evidence that crew members went ashore or that smaller vessels from the ship went ashore regularly with supplies or personnel. That list is updated regularly and was last updated November 2, 2018. The list indicates that the USS Dubuque, which the Veteran claims to have been on during his asserted Vietnam service, transported troops, equipment, and supplies ashore with smaller vessels and docked at Da Nang and elsewhere from June-November 1968, October-December 1969, January-March 1970, and April-July 1971. The USS Dubuque is considered to have been part of the Blue Water Navy with documented shore activity of some crewmembers. The Veteran admittedly did not go on land. See February 2014 Lay Statement. However, the military personnel record contained in the claims file indicates that the USS Dubuque and Pioneer Commander were present as a part of the April 1975 evacuation efforts, as claimed by the Veteran. The military personnel record also indicates that the USS Dubuque was ordered to “sail to the vicinity of Phu Quoc Island”. Given the nature of evacuating refugees, the Board deems it plausible that the ships involved would have needed to be in inland waters during Operation Frequent Wind so that the refugees could more easily be brought onboard, as opposed to being located farther out in offshore waters. The Board acknowledges that there is inconsistency in the evidence on record regarding the Veteran’s claimed combat experience. However, the Board finds that the Veteran is credible in his assertion that he traveled to the Republic of Vietnam as a part of Operation Frequent Wind. There is no evidence of record to impugn the Veteran’s credibility on the matter. In contrast, the Veteran’s credibility is bolstered by the fact that he admittedly did not go on land. See February 2014 Lay Statement. Further, though the vessels the Veteran claims to have been on in April 1975 are not on the list of ships present at that time, the Veteran’s military personnel record indicates that the ships were in fact present in Vietnam waters in April 1975. And though the dates do not align, what the available evidence indicates and what the Veteran alleges that the ships were there for is consistent. The Board finds that there is enough consistent evidence to indicate that the ships may have been present for Operation Frequent Wind, and that the Veteran may have participated. Therefore, the Board concludes that the probative evidence of record shows that it is at least at likely as not that the Veteran had service in the Republic of Vietnam during the Vietnam Era. Accordingly, he is presumed to have been exposed to herbicide agents during his active service. As discussed above, the Veteran’s post-service medical records reflect a diagnosis of type II diabetes mellitus that has manifested to a compensable degree. Type II diabetes mellitus may be service connected presumptively as due to in-service exposure to herbicide agents. Therefore, the Board concludes that service connection for type II diabetes mellitus is warranted on a presumptive basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes, is remanded. The Veteran contends that he has erectile dysfunction that either resulted from his service or is a secondary result of his now service-connected type II diabetes mellitus. The record indicates that the Veteran was diagnosed with erectile dysfunction and prescribed a medication for it at some point, but does not indicate the onset of the condition nor whether it was caused or aggravated by his service nor another service-connected disability, to include diabetes mellitus. See March 2014 VA Treatment Records. Therefore, the Board finds that the low McClendon threshold has been met and this claim must be remanded for a VA opinion in order to determine whether the Veteran’s erectile dysfunction is related to an in-service injury, event, or disease, including the Veteran’s now-service connected diabetes mellitus, type II. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The record also indicates that VA has not received any VA treatment records since March 2014. Any outstanding VA treatment records should also be obtained on remand. The matters are REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records from March 2014 through the present. 2. Following completion of step one, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any erectile dysfunction. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s now-service connected diabetes mellitus, type II. The examiner must be provided with and review the entire claims file, to include a copy of this remand AND any outstanding treatment records. Following a review of the evidence of record, to include the Veteran’s lay statements, the examiner should opine: (Continued on the next page)   (a.) Whether the Veteran’s erectile dysfunction is at least as likely as not related to an in-service injury or event. (b.) Whether the Veteran’s erectile dysfunction is at least as likely as not (1) proximately due to his service-connected diabetes mellitus, type II, or (2) aggravated beyond its natural progression by service-connected diabetes mellitus, type II. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk