Citation Nr: 18154508 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 11-31 795 DATE: December 4, 2018 ORDER Service connection for diabetes mellitus type 2 is denied. Service connection for renal dysfunction, as secondary to diabetes mellitus type 2, is denied. Service connection for erectile dysfunction, as secondary to diabetes mellitus type 2, is denied. Service connection for a heart disorder, as secondary to diabetes mellitus type 2, is denied. REMANDED Service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran did not have service in the Republic of Vietnam. 2. The Veteran’s duties at Udorn air base did not place him on or near the base perimeter. 3. The Veteran’s diabetes mellitus type 2 and heart disorder did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disabilities are not otherwise etiologically related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that the Veteran’s renal dysfunction and erectile dysfunction began during active service, or are otherwise related to an in-service injury, event, or disease. 5. The Veteran’s renal dysfunction, erectile dysfunction, and heart disorder are neither proximately due to nor aggravated beyond their natural progression by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type 2 have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for renal dysfunction, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for erectile dysfunction, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for a heart disorder, to include as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an April 2017 decision, the Board denied the Veteran’s claims for service connection for tinnitus, diabetes mellitus type 2, renal dysfunction, erectile dysfunction, and a heart disorder. He appealed that Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for remand, in a March 2018 Order, the Court remanded that Board decision for readjudication in accordance with the joint motion. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). 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) (2018). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a Veteran served for 90 days or more of active service, service incurrence shall be presumed for certain chronic diseases, including diabetes mellitus, tinnitus, and cardiovascular disease, if the disease manifested to a compensable degree within the year after active service. While the disease need not be diagnosed within the presumption period, it must be shown by acceptable lay or medical evidence that there were characteristic manifestations of the disease to the required degree during that time. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2018). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disease or injury, will be service connected. 38 C.F.R. § 3.310(b) (2018). Thus, service connection is permitted not only for disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. The law also provides a presumption of service connection for certain diseases, including type 2 diabetes and ischemic heart disease (including coronary artery disease), which become manifest after separation from service in veterans who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116 (West 2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2018); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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). VA has extended the presumption of exposure to Agent Orange to Vietnam-era veterans who served in Thailand at certain designated bases, to include Udorn, and whose duties placed him or her on or near the perimeter of the base, where Agent Orange was sprayed. VA Adjudication Procedures Manual, M21-1MR, IV.ii.1.H.5.b. For Air Force veterans, VA will examine the record for evidence indicating duties near the base perimeter, and give high probative value to service as a security policeman, security patrol dog handler, member of the security police squadron, or duties otherwise near the base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. VA Adjudication Procedures Manual. 1. Service connection for diabetes mellitus type 2 2. Service connection for renal dysfunction, as secondary to diabetes mellitus type 2 3. Service connection for erectile dysfunction, as secondary to diabetes mellitus type 2 4. Service connection for a heart disorder, as secondary to diabetes mellitus type 2 The Veteran’s service separation form shows that he served in the Air Force and his primary specialty was airframe repair specialist. While the form shows that he was awarded the Vietnam Service Medal, the form notes that he did not serve in Vietnam. A report from the National Personnel Records System dated in August 2007 also notes that there is no evidence that the Veteran served in Vietnam. Service personnel records include a performance evaluation for the Veteran from Detachment 1, 56th SO (special operations) Wing, at Udorn Royal Thai Air Force Base (RTAFB), for the period between May 1972 and February 1973. This report states that he performed duties as an airframe specialist. The report notes that he repaired aircraft metal structures, fabricated aircraft and related sheet metal and extruded parts, used and maintained shop tools and equipment, fabricated flexible and non-flexible tubing, conduits and control cables, and assisted in training of friendly foreign nationals. Service treatment records do not show any complaints, findings, or diagnoses relevant to any of the disabilities on appeal. The separation examination report, dated in May 1973, shows that the Veteran’s ears, drums, heart, vascular system, endocrine system, genitourinary system, and abdomen and viscera were clinically evaluated as normal, and that urinalysis was negative for sugar and albumin. In the associated report of medical history, the Veteran indicated that he did not have a history of ear trouble, heart trouble, or kidney stones/blood in urine. Post service, the Veteran was afforded a number of VA examinations in October 2007. He reported a history of a heart problem, elevated cholesterol, and diabetes since 1995, hypertension since 1997, an aortic coronary bypass times four in 1999, and problems associated with his kidneys that were diagnosed in January of 2007. He reported that he was diagnosed a few months ago with auricular fibrillation and that he is currently on Plavix and on Coumadin. He also reported having erectile dysfunction for the past year. He denied serving in Vietnam. Diagnoses included diabetes mellitus type 2, hypertension, coronary artery heart disease status post bypass times four, and erectile dysfunction. The Veteran was also noted to have renal dysfunction. The examiner concluded that the Veteran’s renal dysfunction is due to diabetes. The examiner explained that the small blood vessels to the kidney form plaques which result from the diabetic problem, and that this in turn causes hypertension and changes in the blood vessels that result in kidney dysfunction. The examiner further concluded that the Veteran’s erectile dysfunction is due to diabetes, for the same reasons. VA progress notes beginning in 2007 include notations of coronary artery disease, essential hypertension, mixed hyperlipidemia, renal insufficiency, diabetes mellitus with an onset of 1999, and diabetes with renal manifestations, gout, congestive heart failure, and a history of coronary artery bypass surgery times four in 1999, and a myocardial infarction in March 2011 status post stent placement in 2014. Private treatment reports dated in 2015 show treatment for heart symptoms, and include information on the nature of atrial fibrillation and heart failure, as well as procedures including electrical cardioversion and transesophageal echocardiogram. A statement from a private physician dated in October 2013 shows that the Veteran is a longstanding patient with multiple risk factors for atherosclerotic heart disease including diabetes mellitus. The physician noted that there is a possibility that the Veteran’s exposure to Agent Orange may have precipitated his metabolic state, but it is not possible to conclusively relate this situation to his diabetes and subsequent atrial fibrillation and other cardiovascular problems. In a memorandum dated in October 2011, the Joint Services Records Research Center (JSRRC) stated that it had determined that the information required to corroborate in-country Vietnam service or exposure in Thailand described by the Veteran is insufficient to send to the United States Army and Joint Services Records Research Center and/or insufficient to allow for meaningful research of Marine Corps or NARA records. The JSRRC detailed its efforts to verify the Veteran’s claimed exposure to Agent Orange during his service in Thailand, and noted that he had not responded to an August 2011 request for information in support of his claim for herbicide exposure. It was concluded that the evidence of record failed to show that the Veteran was at or near the base perimeter as part of his duty at Udorn air base, that all efforts to obtain the needed information have been exhausted, and that further attempts are futile. A memorandum on herbicide use in Thailand during the Vietnam Era states: [T]he Department of Defense (DoD) reported that only limited testing of tactical herbicides was conducted in Thailand from April 2, 1964, to September 8, 1964, and specifically identified that location as the Pranburi Military Reservation. Tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. While the Thailand CHECO (Contemporary Historical Examination of Current Operations) Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, if a veteran’s MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units were known to have walked the perimeters, especially dog handlers. Given the above, the Board finds that the evidence is insufficient to establish the Veteran’s exposure to Agent Orange. The Veteran does not allege, and there is no evidence to show, that he served in the Republic of Vietnam. Rather, he asserts that he was exposed to Agent Orange at Udorn air base. The Veteran’s separation form shows that he served as an airframe repair specialist and his personnel records indicate that he performed duties in that capacity, with no mention of working near the base perimeter. His personnel records do not indicate the location of his work area at Udorn, nor do they provide any basis to conclude that his duties placed him on or near the base perimeter. JSRRC was unable to verify the Veteran’s duties as being on or near the base perimeter or his exposure to Agent Orange. As such, the Veteran’s duties at Udorn air base did not place him on or near the base perimeter, and exposure to Agent Orange is not conceded. There is no objective evidence that he was otherwise exposed to Agent Orange. Therefore, service connection for a disability based on exposure to Agent Orange is not warranted as a matter of law, and to this extent the claims must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board notes the Veteran’s testimony at the October 2013 Board hearing that his workshop at Udorn air base was about 100 to 200 feet from the base perimeter. Given the memorandum on herbicide use in Thailand during the Vietnam Era, the Board finds that even if the Veteran’s workshop were 100 to 200 feet from the base perimeter, his duties did not place him on or near the base perimeter. The memo cites to the duties of security police units, especially dog handlers, as examples of those who were known to have worked on or near the perimeter, specifically as having walked the perimeter. Thus, the Veteran’s duties at a workshop 100 to 200 feet away from the perimeter are not among those contemplated as having placed him on or near the base perimeter. With regard to the possibility of a grant of the claims on a basis other than exposure to Agent Orange, the claimed disabilities are not shown during service. There is no competent evidence showing that any of the claimed disabilities is related to the Veteran’s service. The October 2007 VA examiners concluded that the Veteran’s renal dysfunction and erectile dysfunction are related to his diabetes. Thus, the preponderance of the evidence is against finding that the Veteran’s renal dysfunction and erectile dysfunction began during active service, or are otherwise related to an in-service injury, event, or disease. There is no evidence showing that his diabetes or cardiovascular-renal disease was manifest to a compensable degree within one year of separation from any period of active duty service. Thus, the Veteran’s diabetes mellitus type 2, renal dysfunction, and heart disorder did not manifest to a compensable degree within the applicable presumptive period; and continuity of symptomatology is not established. To the extent that the Veteran has asserted that his renal dysfunction, erectile dysfunction, and heart disorder were caused or aggravated by his diabetes, the Board has denied the underlying claim for diabetes mellitus type 2. As service connection is not in effect for any disability other than a scar status post removal of hairy nevus, which is not shown to be related to any of the disabilities on appeal, there is no underlying service-connected disability upon which service connection on a secondary basis may be based. Thus, the Veteran’s renal dysfunction, erectile dysfunction, and heart disorder are neither proximately due to nor aggravated beyond their natural progression by a service-connected disability. In reaching this decision, the Board has considered the October 2013 opinion of the private physician. To the extent that it speculates a relationship between the Veteran’s exposure to Agent Orange and his atherosclerotic heart disease and/or diabetes mellitus, the Board has determined that exposure to Agent Orange has not been established. Accordingly, this evidence is insufficiently probative to warrant a grant of any of the claims. 38 C.F.R. § 3.102 (2018) (reasonable doubt does not include resort to speculation or remote possibility); Stegman v. Derwinski, 3 Vet. App. 228 (1992); Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Board notes that a lay person is competent to give evidence about observable symptoms such as chest pain and diminished erectile power. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is also competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of symptoms to many years after separation from active service and the questions of causation extend beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his disabilities. In conclusion, service connection for diabetes mellitus type 2, renal dysfunction, erectile dysfunction, and a heart disorder is not warranted. As the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Service connection for tinnitus is remanded. At an October 2007 VA examination, the Veteran reported that his hearing loss began in service but his tinnitus began about 10 years ago. The examiner opined that the Veteran’s tinnitus was not related to service. While the examiner noted that the tinnitus began about 25 years after separation, the examiner did not explain the importance of that fact in finding a lack of a nexus in the context of medical principles. The examiner also noted that the Veteran was a reservist but did not explain the importance of that fact in the analysis. Thus, remand is warranted to obtain a new medical opinion regarding the etiology of the Veteran’s tinnitus. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of his tinnitus. The examiner should review the claims file and note that review in the report. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus had its onset during active service or within one year thereafter, or is otherwise causally related to such service. The examiner should discuss the opinion in the prior October 2007 VA examination report. The examiner should also discuss the Veteran’s statements regarding the history and chronicity of symptomatology. The examiner should address the significance of the onset of the Veteran’s tinnitus 25 years after separation from active service and the significance of the Veteran’s reserve service. The examiner should provide a complete rationale for all conclusions. 2. Then, readjudicate the claim. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel