Citation Nr: 18160947 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-52 206 DATE: December 28, 2018 ORDER Entitlement to service connection for ischemic heart disease, including as due to herbicide agent exposure, is granted. Entitlement to service connection for prostate cancer, status post-surgery, including as due to herbicide agent exposure, is granted. Entitlement to service connection for diabetes mellitus, including as due to herbicide agent exposure, is granted. REMANDED Entitlement to service connection for peripheral neuropathy of his bilateral lower extremities, including as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, the evidence is at least in relative equipoise as to whether the Veteran served in active duty in close proximity to an area in which herbicide agents were used on or near the perimeter of Ubon Royal Thai Air Force Base, Thailand during the Vietnam War, and as such, service connection for ischemic heart disease on a presumptive basis is warranted. 2. Resolving all doubt in the Veteran’s favor, the evidence is at least in relative equipoise as to whether the Veteran served in active duty in close proximity to an area in which herbicide agents were used on or near the perimeter of Ubon Royal Thai Air Force Base, Thailand during the Vietnam War, and as such, service connection for prostate cancer, status post-surgery, on a presumptive basis is warranted. 3. Resolving all doubt in the Veteran’s favor, the evidence is at least in relative equipoise as to whether the Veteran served in active duty in close proximity to an area in which herbicide agents were used on or near the perimeter of Ubon Royal Thai Air Force Base, Thailand during the Vietnam War, and as such, service connection for diabetes mellitus on a presumptive basis is warranted. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ischemic heart disease, including as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, Diagnostic Code (DC) 7005 (2017). 2. The criteria for entitlement to service connection for prostate cancer, status post-surgery, including as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, DC 7528 (2017). 3. The criteria for entitlement to service connection for diabetes mellitus, including as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, DC 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from December 1960 until his retirement in September 1981. The Veteran was awarded the Vietnam Defense Campaign Medal, the Vietnam Air Campaign Medal, and the Vietnam Air Offensive Campaign Medal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). VA’s Adjudication Procedures Manual, M21-MR, advises that the Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, to include U-Tapao Royal Thai Air Force Base, Ubon Royal Thai Air Force Base, Nakhon Phanom Royal Thai Air Force Base, Udorn Royal Thai Air Force Base, Takhli Royal Thai Air Force Base, Korat Royal Thai Air Force Base, and Don Muang Royal Thai Air Force Base. See M21-1 at IV.ii.1.H.5.a. The M21-1 notes that the majority of troops in Thailand during Vietnam 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. See M21-1 at IV.ii.1.H.5.b. For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). If a veteran was exposed to herbicide agent during active service, service connection is presumed for the following disorders: chloracne or other acneform disease consistent with chloracne; diabetes mellitus; Hodgkin’s disease; ischemic heart disease (including but not limited to acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease); all chronic B-cell leukemias; 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for ischemic heart disease, prostate cancer, and diabetes mellitus, including as due to herbicide agent exposure. Due to the similar dispositions for the claims on appeal, the Board will address all three claims in a common discussion below. The Veteran alleges that his diagnoses of ischemic heart disease, prostate cancer, and diabetes mellitus are all related to his in-service herbicide exposure. See January 2012 Application for Compensation, pp. 1, 12, January 2018 Form 9 Addendum. First, the Board finds that the Veteran does have current diagnoses for the claimed disabilities. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The record reflects that the Veteran has been diagnosed with ischemic heart disease (coronary artery disease); prostate cancer, post-surgery; and diabetes mellitus. See Cardiovascular Medical Treatment Records, p. 47; Prostate Medical Treatment Records, p. 1; and Diabetes Medical Treatment Records, p. 19. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Throughout the claim, the Veteran has reported several instances in which he believes that he was in direct contact with herbicides during his service, including aircraft maintenance and extractions near the base perimeter of Udorn Royal Thai Air Force Base and required to perform guard duty near the base perimeter of Korat Royal Thai Air Force Base on a monthly basis. See January 2018 Form 9 Addendum, p. 3; January 2012 Correspondence, p. 1. Furthermore, the Veteran attested that his sleeping quarters were within 50 feet of the base perimeter of Udorn Royal Thai Air Force Base. Id. The Veteran further believes that presumptive service connection benefits for his currently diagnosed conditions of ischemic heart disease; prostate cancer, status post-surgery; and diabetes mellitus should be granted based upon this herbicide exposure. Resolving all doubt in the Veteran’s favor, the Board agrees. See November 2013 Notice of Disagreement. In this case, the Veteran’s DD-214, service personnel records, and lay statements show that his military occupational specialty (MOS) was Tactical Aircraft Maintenance Technician during the Vietnam War era, and that he was stationed at the Ubon Royal Thai Air Force Base, Thailand from January 1966 to December 1966. The Veteran has asserted that while he was stationed at Ubon Royal Thai Air Force Base, he performed aircraft maintenance, including on the runway near the base perimeter and that he recovered aircraft that slid off of the runway. The Veteran also reported that he performed guard duty around the base perimeter of Korat Royal Thai Air Force Base on a monthly basis and that he slept approximately 50 feet from the base perimeter of the Ubon Royal Thai Air Force Base. The Board finds the Veteran’s competent assertions regarding aircraft maintenance close to base perimeters and recovery of aircraft that went off the runway at Ubon Royal Thai Air Force Base to be credible. Furthermore, the Board finds the assertions of the Veteran performing guard duty at Korat Royal Thai Air Force Base and sleeping approximately 50 feet from the base perimeter of Ubon Royal Thai Air Force Base credible. Given the evidence regarding both working and sleeping near the base perimeter at the Ubon Royal Thai Air Force Base, and performing guard duty at the perimeter of Korat Royal Thai Air Force Base, the Board finds that although the Veteran did not have an MOS indicative of high likelihood of such exposure, resolving all doubt in his favor, the evidence is at least in relative equipoise as to whether the Veteran served on active duty in close proximity to an area in which herbicide agents were used on or near the perimeter of Ubon Royal Thai Air Force Base, Thailand during the Vietnam War. In short, the evidence of record shows that the Veteran served in Thailand during the period when it has been acknowledged that Agent Orange and/or other herbicides were used near the air base perimeter of Royal Thai Air Force Bases in Thailand, including where the Veteran served. While the record does not clearly identify whether the Veteran was exposed to herbicides/Agent Orange while stationed in Thailand, there is no basis in the record to question his assertions that he had contact with the base perimeter while stationed there. As such, the Veteran’s exposure to herbicides during active duty service is conceded. See 38 C.F.R. §3.307(a)(6)(i) (2017). Third, the Board finds that the evidence of record does support a finding that his diagnoses of ischemic heart disease, prostate cancer, and diabetes mellitus are all related to the Veteran’s active military service. Additionally, all three of the above disabilities are among the listed diseases presumed to be etiologically related with herbicide/Agent Orange exposure. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for ischemic heart disease; prostate cancer, status post-surgery; diabetes mellitus; and peripheral neuropathy of his bilateral lower extremities are all warranted. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of his bilateral lower extremities, including as secondary to his service-connected diabetes mellitus. The Veteran alleges that his diagnoses of peripheral neuropathy of his bilateral lower extremities is secondary to his service-connected disability of diabetes mellitus. See January 2012 Application for Compensation, pp. 1, 12, November 2013 Notice of Disagreement, January 2018 Form 9 Addendum. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Board finds a VA examination is necessary to determine whether the Veteran’s currently diagnosed peripheral neuropathy of the bilateral lower extremities is due either to his military service or, due to or aggravated by his now service-connected diabetes mellitus, a remand is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by the appropriate clinician to determine the nature and etiology of the Veteran’s peripheral neuropathy of his bilateral lower extremities. The entire claims file, including a copy of this remand, must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. After reviewing the claims file and eliciting a detailed medical history from the Veteran, the examiner is asked to render opinions as to the following: (a.) Is it at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease? (b.) Is it at least as likely as not that the diagnosed peripheral neuropathy is due to or aggravated by the service connected diabetes mellitus? (c.) Is it at least as likely as not that the Veteran’s peripheral neuropathy of his bilateral lower extremities manifested to a compensable degree within two years of herbicide exposure? A clear rationale of all opinions is necessary, and citation to supportive medical literature would be of considerable assistance to the Board. (Continued on the next page)   The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, ASSOCIATE COUNSEL