Citation Nr: 1806498 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-08 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for diabetes. 2. Entitlement to service connection for ischemic heart disease. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. 4. Entitlement to service connection for peripheral artery disease of the bilateral lower extremities. 5. Entitlement to service connection for a kidney disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied claims for service connection for diabetes mellitus, type 2, ischemic heart disease, peripheral neuropathy of the bilateral lower extremities, peripheral artery disease of the bilateral lower extremities, and partial kidney failure. The Board has construed the Veteran's service connection claim for partial kidney failure broadly, as stated on the cover page of this decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). In June 2017, the Veteran was afforded a videoconference hearing before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102(b) (2012). The issues of service connection for diabetes, for peripheral neuropathy of the bilateral lower extremities, for peripheral artery disease of the bilateral lower extremities, and for a kidney disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is presumed to have had exposure to herbicide agents while serving in Thailand. 2. The Veteran has been diagnosed with ischemic heart disease which is presumed to have been the result of his exposure to herbicide agents CONCLUSION OF LAW Criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that service connection is warranted for ischemic heart disease on a presumptive basis as a result of exposure to herbicide agents, such as Agent Orange, during his service in Thailand. See 38 C.F.R. §§ 3.307, 3.309 (2017). With regard to exposure to Agent Orange, he asserts that he served in Thailand between August 1964 and November 1965, in the Army, with the 207th Signal Company. See e.g., Veteran's statement, dated in November 2011. A review of the Veteran's statements shows that he has provided somewhat differing accounts of the location of his service in Thailand. For example, on several occasions during his hearing, he stated that he was stationed in Ubon, Thailand. See also, Veteran's statements, dated in November and December of 2011. However, it was also indicated that he served at Camp Warin in Ubon. He further stated, "I was at Korat and at Ubon." A lay statement from W.L., dated in June 2017, shows that he states that he served at Camp Warin, that his tour overlapped with the Veteran's tour, that Camp Warin was about six miles from Ubon Air Force Base, and that he had been informed that herbicides were used regularly to keep the vegetation from growing too close to the equipment. Herbicide exposure may be shown for certain service in Thailand, as 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. Therefore, when herbicide related claims from veterans with Thailand service are received, VA is instructed to evaluate the treatment and personnel records to determine whether a veteran's service activities involved duty on or near the perimeter of the military base where that veteran was stationed. 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 U.S. Air Force 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 (military occupational specialty), 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. VA's procedures for handling claims based on exposure to Agent Orange for veterans who served in Thailand allow for a presumption of exposure to attach depending on whether or not several criteria are met. This may depend on the claimant's branch of service, the duty station involved, to include listed Royal Thai Air Force Bases (including Korat and Ubon), the claimant's military occupation specialty, and whether or not the claimant's service in Thailand is shown to have included duties on or near the perimeter of a base. See VA Adjudication Procedures Manual M21-1MR ("M21-1MR"), IV.ii.1.H.5.b. Additionally, for those who served at a U.S. Army Base in Thailand during the Vietnam Era, the same presumptions apply so long as duties involved duties on or near the perimeter of a base. The Veteran's military occupation specialty ("fixed plant carrier repairman"). He submitted a photo of Camp Warin, showing that the building he worked in was situated directly next to the base perimeter. The Veteran's credible testimony and the evidence submitted satisfy the Board that the Veteran operated in and around the perimeter of a U.S. Army Base in Thailand during the Vietnam Era. As such, the Veteran is presumed to have had exposure to herbicide agents during service. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including diabetes mellitus, type II, and ischemic heart disease, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. As such, service connection is warranted for ischemic heart disease (also known as coronary artery disease). ORDER Service connection for ischemic heart disease is granted. REMAND The Veteran asserts that service connection is warranted for diabetes mellitus, type 2, peripheral neuropathy of the bilateral lower extremities, peripheral artery disease of the bilateral lower extremities, and a kidney disability. As noted above, the Veteran is presumed to have had exposure to herbicide agents during his military service. He is seeking service connection for diabetes mellitus, type 2, which is a disease that is presumptively linked to exposure to herbicide agents. However, diabetes mellitus, type 1, is not. Here, the Veteran was reportedly diagnosed with diabetes in the early 1970s, in approximately 1971 or 1972 per his hearing testimony. Medical records (both VA treatment records and private treatment records) consistently show that the Veteran has type 1 diabetes, not type 2. Type 1 diabetes is not a disease that has been presumptively linked to exposure to herbicide agents. The Veteran is also noted to have a family history of diabetes per an August 2010 private treatment record from Dr. Morrison. It is also unclear whether his peripheral neuropathy of the bilateral lower extremities, peripheral artery disease of the bilateral lower extremities, and/or kidney disability, is warranted as secondary to either his diabetes or his ischemic heart disease. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a VA examination to address the following questions: a) Does the Veteran have type 1 or type 2 diabetes mellitus? b) If he has type 1 diabetes mellitus, is it at least as likely as not (50 percent or greater) that the condition either began during or was otherwise caused by his military service? Why or why not? c) Is it at least as likely as not (50 percent or greater) that the Veteran's peripheral neuropathy of the bilateral lower extremities was caused by his diabetes? Why or why not? d) Is it at least as likely as not (50 percent or greater) that the Veteran's peripheral neuropathy of the bilateral lower extremities was aggravated by his diabetes? Why or why not? e) Is it at least as likely as not (50 percent or greater) that the Veteran's peripheral vascular disease of the bilateral lower extremities was caused by his diabetes? Why or why not? f) Is it at least as likely as not (50 percent or greater) that the Veteran's peripheral vascular disease of the bilateral lower extremities was aggravated by his diabetes? Why or why not? g) Is it at least as likely as not (50 percent or greater) that the Veteran's peripheral neuropathy of the bilateral lower extremities was caused by his ischemic heart disease? Why or why not? h) Is it at least as likely as not (50 percent or greater) that the Veteran's peripheral neuropathy of the bilateral lower extremities was aggravated by his ischemic heart disease? Why or why not? i) Is it at least as likely as not (50 percent or greater) that the Veteran's peripheral vascular disease of the bilateral lower extremities was caused by his ischemic heart disease? Why or why not? j) Is it at least as likely as not (50 percent or greater) that the Veteran's peripheral vascular disease of the bilateral lower extremities was aggravated by his ischemic heart disease? Why or why not? In providing these opinions, the examiner should consider the relevance of the Veteran's family history of diabetes, his smoking history, and his presumed exposure to herbicide agents during service. The examiner should also consider the Veteran's hypertension. If aggravation is found, the examiner should identify the baseline level of severity of the disability before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the disability. 38 C.F.R. § 3.310. 2. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs