Citation Nr: 1807217 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-27 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicide agents. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, or as a result of exposure to herbicide agents. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel INTRODUCTION The Veteran had active military service from September 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has recharacterized the issues on appeal as above to better reflect the allegations made by the Veteran or raised by the record. In September 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The issue of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, or as a result of exposure to herbicide agents is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has a current diagnosis of diabetes mellitus, type II, and the weight of the evidence supports a finding that the Veteran performed duties in the Korean Demilitarized Zone while in active service between April 1, 1968, and August 31, 1971. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.103, 3.159 (2017). Because the Board is granting the benefit sought by the Veteran, any error with respect to VA's duty to notify or assist does not prejudice the claimant and need not be discussed. II. Service connection The Veteran was stationed in Korea during service. He contends that he was exposed to herbicide agents, including Agent Orange, while in Korea and the record is undisputed that he has a current diagnosis of diabetes mellitus, type II. As explained below, the Board concludes that service connection is warranted for diabetes mellitus, type II, on a presumptive basis. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Some diseases associated with exposure to certain herbicide agents, including diabetes mellitus, will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Under 38 C.F.R. § 3.307 (a)(6)(iv), effective February 24, 2011, VA extended the presumption of herbicide exposure to any Veteran who served between April 1, 1968, and August 31, 1971, and in a unit that VA or the Department of Defense (DoD) has determined to have operated in an area in or near the Korean Demilitarized Zone (DMZ). See M21-1MR, Part IV, subpart ii, Chapter 2, Section C. The Veteran served in South Korea from March 1969 to April 1970. While in South Korea, the Veteran was stationed at Camp Rice, located approximately fourteen miles from the DMZ. The Veteran gave detailed testimony before the Board in September 2017 about having flown to the DMZ by helicopter while stationed at Fort Rice. The Veteran testified that it took about 15 to 20 minutes to get to the DMZ, and he landed with four other service members and exited the helicopter and walked around the DMZ. He reported being there for about four hours and even described the barbed wire fence separating the areas on the DMZ. The Veteran's service in Korea was entirely during the time period for which 38 C.F.R. § 3.307 allows a presumption of herbicide exposure. Further, the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses, such as having walked in the Korean DMZ while serving in South Korea. Barr v. Nicholson, 21 Vet. App. 303 (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 this specific helicopter flight in the Defense Personnel Records Information Retrieval System. Therefore, the evidence is at least in equipoise regarding the Veteran's herbicide agent exposure, and, affording the Veteran the benefit of all doubt, service connection for diabetes mellitus, type II, is warranted on a presumptive basis. ORDER Service connection for diabetes mellitus, type II, to include as a result of exposure to herbicide agents, is granted. REMAND The Veteran is seeking service connection for hypertension, to include as secondary to his diabetes mellitus, type II, or as a result of his exposure to herbicide agents. The Veteran testified before the Board in September 2017 that he had a Disability Benefits Questionnaire (DBQ) completed on September 7, 2017 at the Durham VA Medical Center (VAMC) in Durham, North Carolina. In addition, the Veteran submitted a letter dated September 7, 2017 from VA verifying that he was, in fact, seen at the Durham VAMC for assistance in completing DBQs for diabetes mellitus and hypertension. The VA letter further stated that the DBQs were completed in the CAPRI electronic format and could be found in the Veteran's VHA medical treatment records. CAPRI records were then associated with the Veteran's Virtual VA file on September 23, 2017. However, these records do not contain the September 7, 2017 DBQs for diabetes mellitus and hypertension, or any VA treatment records dated after August 2, 2017. The September 2017 diabetes mellitus and hypertension DBQs do not appear elsewhere in the claims file and may be relevant to the Veteran's claim for service connection. They should be sought. Furthermore, the National Academy of Sciences (NAS) Institute of Medicine's "Veterans and Agent Orange: Update 2010" concluded that there is limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. However, no medical opinion currently associated with the claims file has addressed the possibility that the Veteran's hypertension was caused by his presumed herbicide agent exposure. Moreover, the Veteran's testimony did not indicate that the September 2017 DBQs addressed this issue, either. As such, an additional opinion on this matter is necessary to adjudicate this claim. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from August 2, 2017 to present, to include the September 2017 diabetes mellitus and hypertension DBQs completed at the Durham VAMC. 2. Obtain a medical opinion regarding the etiology of the Veteran's hypertension (if an opinion cannot be provided without an examination, one should be scheduled). The examiner should answer the following questions: A) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension either began during or was otherwise caused by his military service, to include as a result of his presumed exposure to herbicide agents? Why or why not? In answering this question, the examiner should discuss the relevance, if any, of the findings by the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides 2010 report "Veterans and Agent Orange: Update 2010" that continued to categorize hypertension as having limited or suggestive evidence of association with herbicide agent exposure (meaning that epidemiologic evidence suggests an association between exposure to herbicide agents and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence). B) Was the Veteran's hypertension at least as likely as not (probability of at least 50 percent) caused or aggravated (increased in severity) by his diabetes mellitus, type II? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of hypertension by medical evidence created 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 hypertension. If such cannot be done, it should be explained why. 3. Then readjudicate the appeal. If the claim remains 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 matter 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. §§ 5109B, 7112 (2012). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs