Citation Nr: 1807520	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-25 588	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure.

2.  Entitlement to service connection for coronary artery disease, to include as due to herbicide exposure.

3.  Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a).   


REPRESENTATION

Veteran represented by:	Penelope E. Gronbeck, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney


INTRODUCTION

The Veteran served on active duty from March 1971 to February 1975. 

These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  The Veteran's claims file is currently under the jurisdiction of the St. Paul, Minnesota RO.

In May 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the St. Paul, Minnesota RO.  A transcript of the hearing is associated with the claims file.

The issue of entitlement to SMC is addressed in the REMAND portion of the decision and is REMANDED to the Agency of Original Jurisdiction (AOJ). 
 

FINDINGS OF FACT

1.  Based on his competent and credible assertion of having served in close proximity to the perimeter of the Ubon Royal Thai Air Force Base in Thailand from December 1972 to June 1973, and resolving doubt in his favor, the Veteran is presumed to have been exposed to herbicides during active service. 

2.  The Veteran has diabetes mellitus, type II, which is presumed to be related to his exposure to herbicides during his active service in Thailand.

3.  The Veteran has coronary artery disease which is presumed to be related to his exposure to herbicides during his active service in Thailand.


CONCLUSIONS OF LAW

1.  The criteria for service connection for diabetes mellitus, type II have been met.  38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).    

2.  The criteria for service connection for coronary artery disease have been met.  38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).    


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Service Connection for Diabetes Mellitus and Coronary Artery Disease

The Veteran contends that he has diabetes mellitus, type II and coronary artery disease that are directly related to his active service.  Specifically, the Veteran testified that he was stationed at Ubon Royal Thai Air Force Base during the Vietnam era and was exposed to herbicide agents when he was required to perform 
pickup/delivery service along the base perimeter.  See May 2016 Board hearing transcript.    

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  To establish service connection, the evidence generally 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 or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be demonstrated for a disease diagnosed after service 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).

Additionally, the law provides that "a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam 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, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) and coronary artery disease shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met.  38 C.F.R. § 3.309 (e).

All veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent.  See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307.  However, in this case, the Veteran's service personnel records do not show that he served in Vietnam.  Rather, the Veteran claims exposure to herbicide agents while stationed at the Ubon Royal Thai Air Force Base in Thailand.

VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam era.  See VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR").  Specifically, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand.  The herbicide use was intended to eliminate vegetation and ground cover for base security purposes.  VA has acknowledged that the herbicides used on the Thailand base perimeters may have been tactical or a commercial variant of much greater strength and with the characteristics of tactical herbicides.  Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. 

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 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.  These provisions apply only during the Vietnam era.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q).

In this case, the medical evidence of record shows a diagnosis of diabetes mellitus and coronary artery disease at the August 2011 VA examination.  Accordingly, the record shows that the Veteran has a current disability of diabetes mellitus and coronary artery disease and if the Veteran is found to have been exposed to an herbicide agent during military service, presumptive service connection is warranted for the Veteran's diabetes mellitus and coronary artery disease.

The Veteran's DD Form 214 lists his MOS as aerospace ground equipment repairman.  Aerospace ground equipment repairman is not one of the MOSs listed in the MR21-1MR as presumed to have been performed at or near an air base perimeter.  However, the Veteran has indicated that part of his job as an airplane mechanic was to pick up equipment which caused him to continually drive along the base perimeter.  See May 2016 Board hearing transcript.  

The Veteran's service personnel records confirm that he was stationed at the Ubon Royal Thai Air Force Base from December 1972 to June 1973.  They show that his duties as an aircraft mechanic included performing all inspections, servicing, and pickup/delivery of all assigned AGE.  He was also qualified and called upon to perform maintenance and comprehensive inspections on all equipment.  The service personnel records include a performance report covering the period during which the Veteran was stationed at the Ubon Royal Thai Air Force Base. 

In summary, the evidence of record shows that the Veteran served during the Vietnam era at the Ubon Royal Thai Air Force Base.  The service records do not clearly show that the Veteran was exposed to herbicides while stationed in Thailand.  However, the Veteran has presented testimony and evidence showing that he was required to perform pickup/delivery as part of his MOS.  The Veteran testified that he was required to travel along the base perimeter fence to obtain the proper tools and equipment.  Additionally, the Veteran's service personnel records show that one of his duties while stationed at Ubon Royal Thai Air Force Base was pickup/delivery.    

The Veteran is competent to report his activities while at Ubon Royal Thai Air Force Base.  The Board finds no basis in the record to question the Veteran's credibility regarding his statements.  The service personnel records portray the Veteran as an individual of good moral character who was competent in his work as an airplane mechanic and who was required to perform pickup/delivery duties.  That he would perform pickup/delivery is consistent with the circumstances and character of his service, as demonstrated in the service records.  See 38 U.S.C.A. § 1154 (a).  

The Veteran's statements and the evidence indicate that he had contact with the base perimeter while stationed at the Ubon Royal Thai Air Force Base.  The Veteran's statements as to the location and the type of duties he performed while stationed in Thailand are competent and credible.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and which is within the realm of his personal knowledge); also see Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.).

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  In the present case, the Veteran has presented "other credible evidence" that he served at or near the perimeter of the Ubon Royal Thai Air Force Base.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q).  Any reasonable doubt regarding the accuracy of the Veteran's statements is resolved in the Veteran's favor, and the Board finds that the Veteran was exposed to herbicides during his active service.  See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veterans testimony, taken in conjunction with the information regarding herbicide use in Thailand, supports a finding that the Veteran was exposed to herbicides during his active service.  The Veteran's post-service medical records reflect diagnoses of diabetes mellitus and coronary artery disease.  Therefore, service connection for diabetes mellitus and coronary artery disease is warranted on a presumptive direct-incurrence basis.  See 38 C.F.R. §§ 3.303, 3.307, 3.309.


ORDER

Entitlement to service connection for diabetes mellitus, type II, is granted.

Entitlement to service connection for coronary artery disease is granted.


REMAND

The Board finds that further development is necessary before a decision on the merits may be made relating to the issue remaining on appeal.

The Veteran contends that he has erectile dysfunction that is related to medication he takes for diabetes.  The Veteran was provided a VA examination in August 2011.  The VA examiner diagnosed the Veteran with erectile dysfunction.  The VA examiner opined that the Veteran's erectile dysfunction was not caused by or aggravated by his diabetes mellitus.  As rationale, the VA examiner stated that the Veteran's erectile dysfunction had its onset prior to the diagnosis of diabetes mellitus.  In that regard, the Board observes that a recent opinion was issued by the United States Court of Appeals for Veterans Claims (Court).  In Frost v. Shulkin, ___ Vet. App. ___, No. 15-3102, Lexis 1747 (November 30, 2017), the Court held that "for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred."  As such, on remand the VA examiner must provide an addendum opinion as to whether the Veteran's erectile dysfunction is caused by his service-connected diabetes mellitus, type II. 

Additionally, at the May 2016 Board hearing the Veteran stated that he receives treatment for his disabilities at the Minneapolis VAMC.  The most recent VA treatment records in the Veteran's claims file are from April 2013.  VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA's constructive possession.  See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992).  On remand, updated VA records, as well as any other relevant VA treatment records identified by the Veteran, must be obtained and associated with the record.  
  
Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA treatment records relevant to the matter being remanded, to include from the Minneapolis VAMC, to include from April 2013.

2.  After the above development, forward the record and a copy of this remand to the examiner who conducted the August 2011 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion.  If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled.  Following review of the record, the examiner should express an opinion as to:  

a)  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is etiologically related to his active service.

b)  If not, whether it is at least as likely as not (50 percent or greater probability) that erectile dysfunction is proximately due to or the result of the Veteran's service-connected disabilities, to include medication taken therefor, specifically to include his service-connected diabetes mellitus, type II.

c)  If not, whether it is at least as likely as not (50 percent or greater probability) that erectile dysfunction was aggravated by the Veteran's service-connected disabilities, to include medication taken therefor, specifically to include his service-connected diabetes mellitus, type II.

"Aggravation" is defined as a worsening beyond the natural progression of the disease.  

3.  After completion of the above, review the expanded record, including the evidence entered since the statement of the case, and determine whether entitlement to service connection for SMC may be granted.  If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case.  A reasonable period should be allowed for response before the appeal is returned to the Board.     

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).




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs