Citation Nr: 1807903 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 16-24 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2 (DM). 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, as secondary to DM. 3. Entitlement to service connection for coronary artery disease (CAD), claimed as a lung condition. 4. Entitlement to service connection for a cervical disorder. 5. Entitlement to service connection for peripheral neuropathy, claimed as radiculopathy, of the left lower extremity, as secondary to a low back disorder or DM. 6. Evaluation of erectile dysfunction, currently rated as noncompensable. 7. Evaluation of right lower extremity radiculopathy, currently evaluated as 20 percent disabling. 8. Entitlement to service connection for a colon fissure. 9. Entitlement to service connection for hemorrhoids. 10. Entitlement to service connection for a hernia. 11. Entitlement to service connection for a liver condition. 12. Entitlement to service connection for a kidney condition. 13. Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Sopko, Counsel INTRODUCTION The Veteran served on active military duty from November 1965 to April 1971. The Veteran died in November 2012. The Appellant is his widow. These issues come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified before the undersigned in November 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The Board decides Issues 1-5 below. The Board REMANDS Issues 6-13 to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents while stationed in Thailand. 2. Service caused the Veteran's DM. 3. The Veteran's DM caused his bilateral peripheral neuropathy of the upper extremities. 4. Service caused the Veteran's CAD. 5. The Veteran's low back disorder caused his cervical disorder. 6. The Veteran's DM caused his peripheral neuropathy of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for DM due to herbicide exposure have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for bilateral peripheral neuropathy of the upper extremities, secondary to DM, have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for CAD due to herbicide exposure have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 4. The criteria for service connection for a cervical disorder, secondary to a low back disorder, have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 5. The criteria for service connection for peripheral neuropathy of the left lower extremity, secondary to DM, have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Direct Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Secondary Service Connection Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). DM The Veteran served at the U-Tapao RTAFB from July 1968 to December 1968. No regulations presume herbicide agent exposure for veterans who served in Thailand. However, VA has adopted a procedure for verifying exposure to herbicide agents in Thailand during the Vietnam Era. The first step is determining whether the Veteran served at one of the qualifying RTAFBs and served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. According to his service personnel records (SPR), the Veteran served at a qualifying RTAFB. He was, according to his DD 214, an electronic warfare officer. In this capacity, the Veteran flew on Air Force combat missions, assisting with bombing activities. Based upon the Veteran's statements and submissions of photographs of B-52 bombers at U-Tapao RTAFB, the Board finds, pursuant to 38 U.S.C.A. § 1154(a) and VA Thailand protocol, the Veteran was repeatedly near the air base perimeter as shown by evidence of daily work duties. Therefore, the Veteran was exposed to herbicide agents during his Thailand service. Given the Veteran's in-service exposure, VA will service connect the Veteran's DM pursuant to 38 C.F.R. § 3.309(e). Peripheral Neuropathy - Upper Extremities The Veteran had "bilateral median entrapment neuropathy" of the upper extremities, as diagnosed in an August 2007 neurological treatment record. Also, VA service connected his low back disorder. This appeal turns on the third prong - medical nexus. The August 2007 treatment record cites the in-service accident upon which VA service connected the low back disorder. The treatment record shows the neurologist believed the neuropathy was "consistent with the clinical history and clinical findings." The undersigned finds this meets the nexus prong, and the Board will grant the appeal. For the Appellant's understanding, although the Veteran claimed this disorder as secondary to DM, the Board will service connect it secondary to his low back disorder. CAD VA adjudicated claims of service connection for CAD and a lung condition separately in the May 2012 rating decision on appeal. The Veteran, in a Notice of Disagreement which VA received in July 2012, included the phrase "reduced heart, lung" to indicate the issue he was appealing. Although VA separately adjudicated these conditions, the undersigned finds they should be combined. The Veteran, in a VA Form 21-0781, cited "congenital heart disease" and "reduced lung capacity at 60% 2.5 years ago" as among the claims for which he was seeking service connection. To support his claims, the Veteran submitted evidence of CAD dating from 2007. This evidence revealed "the patient quite possibly had a myocardial infarction a couple years ago at his daughter's wedding," complaints of dyspnea, and findings of ischemic heart disease. It is clear that the Veteran was trying to articulate the symptom he was experiencing - dyspnea - to represent the disability he was seeking based on the symptoms he was experiencing from 2007 until his claim in May 2010. As such, the Board will combine them for purposes of this appeal. Given the Veteran's in-service herbicide agent exposure (as discussed above), VA will service connect the Veteran's CAD pursuant to 38 C.F.R. § 3.309(e). Cervical Disorder An August 2007 radiological treatment record shows the Veteran had "mild anterolisthesis on L4 and on L5 due to severe bilateral facet arthropathy causing severe central spinal canal stenosis." This statement identifies the disability - central spinal canal stenosis - and the cause - the Veteran's service-connected low back disorder. Based on the principles of secondary service connection, VA will service connect the cervical disorder. Peripheral Neuropathy - Left Lower The Board has recharacterized this issue based upon the medical evidence the Veteran provided. A May 2010 neurological treatment record shows the Veteran had "moderately severe peripheral neuropathy, both axonal and demyelinating, perhaps secondary to a history of [DM], although other factors may be contributing and may have to be ruled out." The Veteran's neuropathy impacted his left lower extremity as seen in the treatment record, so this satisfies the first prong of secondary service connection. The Board is service connecting the Veteran's DM, so this satisfies the second prong of secondary service connection. As for medical nexus, further medical inquiry cannot be conducted because the Veteran has passed. Notwithstanding the limitation of the above record, the undersigned is satisfied that, at a minimum, equipoise has been reached. This satisfies the third prong of secondary service connection. All three prongs of service connection are granted, so the Board grants the appeal. ORDER Entitlement to service connection for diabetes mellitus, type 2 (DM), is granted. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, as secondary to DM, is granted. Entitlement to service connection for coronary artery disease (CAD), claimed as a lung condition, is granted. Entitlement to service connection for a cervical disorder is granted. Entitlement to service connection for peripheral neuropathy, claimed as radiculopathy, of the left lower extremity, as secondary to a low back disorder or DM, is granted. REMAND Remand is warranted for Issues 6-13 for two reasons. First, the Appellant testified, as seen on page 21 of the hearing transcript, that her husband got "checked out at the VA," approximately in 2009 or 2010. It is unclear where VA treated the Veteran, so remand is warranted to clarify the facility and to attempt to obtain the records. Second, the Appellant's representative stated, as recorded on page 30 of the hearing transcript, that the Appellant is seeking presumptive service connection for the Veteran's claimed liver and kidney conditions based on herbicide agent exposure. Given that the Board has found, as described above, that the Veteran was exposed to herbicide agents in service, it is necessary to clarify the specific conditions for which the Appellant is seeking service connection to determine if they are among the diseases in 38 C.F.R. § 3.309(e). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Appellant to identify the VA facilities at which the Veteran was treated and the time periods of this treatment. If the Appellant responds, attempt to obtain these records. If the Appellant does not respond, please document this in the claims file. 2. Ask the Appellant to identify the specific kidney and liver conditions for which she is seeking service connection. If the Appellant responds, determine if there is evidence that the Veteran had these conditions. If he did, determine which, if any of these conditions, is eligible for presumptive service connection based on exposure to herbicide agents. If the Appellant does not respond, please document this in the claims file. 3. Take any additional action deemed necessary. Readjudicate the claims. If the claims remain denied, provide the Appellant and her representative with a supplemental statement of the case and allow an appropriate time for response. The appellant 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 (2012). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs