Citation Nr: 1808886 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 16-61 058 ) 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. 2. Entitlement to service connection for coronary bypass surgery claimed as heart bypass surgery. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for chronic kidney disease. 5. Entitlement to service connection for skin lesions (unspecified). REPRESENTATION Veteran represented by: Amy Fochler, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2015; a statement of the case was issued in October 2016; and a substantive appeal was received in November 2016. The Veteran presented testimony at a Board hearing in November 2017. A transcript of the hearing is associated with the Veteran's claims folder. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for an acquired psychiatric disability,(to include PTSD), chronic kidney disease, and skin lesions are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's diabetes mellitus is due to the Veteran's presumed exposure to herbicides during service in Vietnam. 2. The Veteran's coronary artery disease is due to the Veteran's presumed exposure to herbicides during service in Vietnam. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for an award of service connection for coronary artery disease have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Applicable law also provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Type II diabetes mellitus, coronary artery disease The Veteran contends that he served in Vietnam and that it is therefore presumed that he was exposed to herbicide agents (to include Agent Orange). Specifically, he testified that he conducted helicopter missions to nearby jungles to conduct training and other duties. He stated that traveled to Vietnam once every month to six weeks (for a day or two each time). He testified that the helicopter launch point was in DaNang. The Veteran also testified that he got medical treatment in Vietnam; and that he received the Combat Action Ribbon. He testified that over the course of two years stationed on the U.S.S. Enterprise, he spent 30-40 days in Vietnam. The service personnel records reflect that the Veteran served aboard the U.S.S. Enterprise from October 1965 to November 1967. The records also reflect that from December 1965 to June 1967, the crew "participated in South China Sea/Gulf of Tonkin Operations to include air stress on targets in North and South Vietnam." (Military Personnel Record, 8/18/14, pgs. 44-45). The Veteran has submitted a narrative history of the U.S.S. Enterprise that reflects that its basic mission of "supporting Allied ground troops in South Vietnam from Dixie Station." (Military Personnel Record, 10/31/16, p. 4). He also submitted photographs purporting to show him in DaNang in 1966, and on China Beach, Vietnam in 1967 (Photographs, 6/24/15). The Board finds that the Veteran has offered competent as well as credible testimony with regards to his having boots on the ground in Vietnam. His testimony regarding helicopter trips are consistent with the military personnel records of the U.S.S. Enterprise. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (stating that each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Consequently, the Board finds that the Veteran is presumed to have been exposed to herbicide agents during his active service. Pursuant to 38 C.F.R. § 3.307(a)(6)(ii) and 38 C.F.R. § 3.309 (e), Type II diabetes and coronary artery disease shall be subject to presumptive service connection if they "become manifest to a degree of 10 percent or more at any time after service." The Board notes that the Veteran has been diagnosed with Type II diabetes and coronary artery disease (Medical Treatment Record - Non-Government Facility, 2/25/15, p. 39). Given the Veteran's presumed exposure to herbicides and his current diagnoses of Type II diabetes and coronary artery disease, the Board finds that service connection for Type II diabetes and coronary artery disease is warranted. There is no need to undertake any review of compliance with the VA's duty to notify and assist in this case since there is no detriment to the Veteran as a result of any deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. The Board notes that an RO letter dated February 2015 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER Service connection for Type II diabetes mellitus is granted. Service connection for coronary artery disease is granted. REMAND As noted above, the Board finds that the Veteran has provided credible evidence that he served in Vietnam; and that consequently, he is presumed to have been exposed to herbicide agents, including Agent Orange. Skin lesions Service connection for chloracne or other acneform disease consistent with chloracne is also presumptively service connected for Veterans who have been exposed to herbicides. However, the presumption only applies if it becomes "manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent." See 38 C.F.R. § 3.307(a)(6)(ii). The Veteran testified that his skin issues did not begin until 2007. Consequently, service connection of a presumptive basis is not warranted. However, service connection may still be granted on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). Due to the Veteran's presumed exposure to herbicide agents during his active duty service, the Board finds that a VA examination is warranted to determine if the Veteran's skin disability is related to service. Kidney The Veteran contends that his kidney disability could be related to exposure to herbicides. He also contends that his kidney disability could be secondary to his service-connected diabetes mellitus. Due to the finding made above - that the Veteran is presumed exposed to herbicide agents and that service connection is warranted for diabetes, the Board finds that a VA examination is warranted to determine the nature and extent of his kidney disability. Psych Although the Veteran testified that he received the Combat Action Ribbon, the service personnel records fail to substantiate this contention. However, the records reflect that he was awarded the Vietnamese Campaign Medal. Additionally, his service personnel records reflect that he participated in South China Sea/Gulf of Tonkin Operations to include air stress on targets in North and South Vietnam. The records of the U.S.S. Enterprise reflect that its mission was to support Allied Ground troops. Finally, the Veteran has contended that he suffered from stress as a result of being stationed on the first nuclear aircraft carrier and dealing with nuclear weapons. The November 2014 VA examination report reflect a current diagnosis of PTSD. The Veteran's testimony is consistent with his service personnel records and they include several potential stressors. The Board finds that a VA examination is warranted to determine the nature and extent of the Veteran's psychiatric disability. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Afford the Veteran appropriate VA examination(s) for the purpose of determining the nature and etiology of the Veteran's chronic kidney disease and skin lesions. The examiner is to review the claim file to become familiar with the pertinent history of each disorder. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary. (a) The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any kidney began during or is causally related to active service, to include as due to presumed exposure to herbicides agents, to include Agent Orange. (b) With regards to the Veteran's kidney disease, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's kidney disease was (1) caused by, or (2) aggravated by, his service-connected Type II diabetes. (c) The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any skin disorder began during or is causally related to active service, to include as due to presumed exposure to herbicides agents, to include Agent Orange. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. The examiner(s) is to provide a comprehensive rationale for all opinions. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. Afford the Veteran a VA psychiatric examination for the purpose of determining the nature and etiology of the Veteran's psychiatric disability. The examiner is to review the claim file to become familiar with the pertinent history of the mental health disorder. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should opine: a) Whether the Veteran's currently diagnosed PTSD is related to his fear of hostile military or terrorist activity or whether the Veteran has PTSD due to a credible supported stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. b) For any other diagnosed acquired psychiatric disorder, the examiner should opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that any currently diagnosed psychiatric disorder is the result of military service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. The psychiatrist or psychologist is to provide a comprehensive rationale for all opinions. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. After completion of the above, readjudicate the issues on appeal and determine if the benefits sought can be granted. If any benefit sought remains denied, then furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. 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 expeditiously. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs