Citation Nr: 18101751 Decision Date: 05/09/18 Archive Date: 05/09/18 DOCKET NO. 11-22 383 DATE: May 9, 2018 ORDER Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure is granted. REMANDED Entitlement to service connection for hypertension, secondary to diabetes mellitus, is remanded. Entitlement to service connection for anal/recal abscesses, secondary to diabetes mellitus, is remanded. Entitlement to service connection for a skin disorder, secondary to diabetes mellitus, is remanded. FINDING OF FACT Diabetes mellitus originated as a result of active service. CONCLUSION OF LAW The criteria to establish service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1961 until September 1964. The Veteran died in mid- 2014, with his perfected claim pending on appeal. The appellant claims as the surviving spouse and the merits of these claims are addressed with the appellant as the substituted party. See 38 U.S.C. § 5121A. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure 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, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303 . Additionally, Veterans who during active service served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116 ; 38 C.F.R. § 3.307 . VA has interpreted that regulation to mean that the presumption of service connection applies to those service members who physically set foot in the Republic of Vietnam. See Haas v. Peake, 544 F.3d 1306, 1308 (Fed. Cir. 2008). In addition, VA regulations provide that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ (i.e. demilitarized zone) in an area in which herbicides are known to have been applied during that period, 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. See 38 C.F.R. § 3.307 (a)(6)(iv). In a February 1964 correspondence with the commanding officer of line company, the Veteran was given a clearance for confidential information and his assignment was noted as medic and armored personnel carrier (APC) commander. A military personnel record indicates the Veteran was issued three packs of atropine in 1964. The appellant has noted that atropine is used as an antidote for nerve agent exposure and was issued to service members who were going to Vietnam. In December 1988 and October 1989 treatment records the Veteran noted military service in Korea and Vietnam. In an October 2012 affidavit, the Veteran’s ex-wife stated that she received letters from the Veteran in which he reported travelling to different parts of Korea and Vietnam while serving overseas. In a March 2016 lay statement the appellant noted that research conducted on the www.history.army.mil/ website indicated that the Veteran’s unit was located in Da Nang, Vietnam from September 1962 to November 1964. A May 2016 DPRIS result indicates the Veteran’s unit records were unable to be located for the year 1963. In the appellant’s July 2017 brief she indicated that the Veteran served in Korea and Vietnam. The appellant noted an October 1989 treatment record in which the Veteran stated that he had served in Korea and Vietnam. As to this evidence, the appellant argued that that there was no motivation for the Veteran to be dishonest about Vietnam service in 1989 because the VA had not yet begun to link various diseases to herbicide exposure. The appellant also noted lay statements supporting Vietnam service and agent orange exposure from the Veteran himself and his ex-wife. An undated statement in support of claim document indicates the Veteran was issued atropine according to his military personnel record. The statement concludes that atropine was only provided to soldiers travelling to Vietnam as a preventative measure for possible nerve gas exposure. In a November 2017 lay statement the appellant indicated that all available records have been submitted to the VA. The appellant also noted continued and consistent statements from her husband to medical professionals regarding his Vietnam service; an affidavit from the Veteran’s former spouse noting Vietnam service, providing the Veteran with atropine to counter the potential effects of nerve agents and cholera vaccinations. The appellant also noted that her husband was transferred to the line company designated above and assigned as APC driver. She also argued that the unit was located in Vietnam during her husband’s time with the unit. In a February 2018 report of general information, a VA employee recorded the results of a phone conversation with a director at the Museum of Historians. According to the summary of the conversation, the director declared that he had no historical records but that to his knowledge no soldiers were sent to Vietnam from Korea. The director also stated that due to the closer proximity, it is more likely that soldiers would be sent from Hawaii or Thailand to Vietnam and not from Korea. While the report of information also indicates that a written statement would be provided by the director for inclusion in the record, no statement was obtained, and the Board cannot ascertain the basis of the director’s report as to the movement of military personnel from Hawaii or Thailand to Vietnam. The evidence of whether the Veteran set foot in Vietnam is in relative equipoise. Although there is no recorded evidence that definitively states the Veteran served in Vietnam, there is also no evidence that indicates the Veteran did not go to Vietnam while stationed in Korea. The attempts to obtain records of the Veteran’s unit history from 1963 have been unsuccessful and therefore there is no record that directly contradicts the appellant’s assertions. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise. The Board affords the appellant the benefit of the doubt and grants the Veteran entitlement to the herbicide agent presumption as a result. Upon resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for diabetes and the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REMANDED ISSUES The Board remands the issues of service connection for hypertension; service connection for anal/rectal abscesses, and service connection for a skin disorder all secondary to service-connected diabetes mellitus and presumed exposure to herbicides. The matters are REMANDED for the following action: 1. Request that the appellant provide the names and addresses of any and all health care providers who provided treatment for his hypertension, anal/rectal abscesses, and skin disorder. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims file or e-folder. 2. After all available records have been associated with the claims file and/or e-folder, send the Veteran’s file to a qualified medical examiner to determine the etiology of his hypertension. The Veteran’s claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. As noted above, the examiner should review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: * In the Veteran’s July 1964 examination for service separation, the Veteran noted no complaints relevant to hypertension. * A December 1988 treatment record reflects a blood pressure reading of 170/110. * A June 2009 statement from the Veteran’s treating physician opines that the Veteran’s hypertension is “very much related to his diabetes.” A January 2010 statement from the Veteran’s treating physician reflects that the Veteran has significant diabetes mellitus and hypertension and several other medical symptoms. The physician opined that the Veteran’s longstanding diabetes mellitus was a major factor in his subsequent medical symptoms and complications. b. The examiner must provide an opinion as to whether the Veteran’s hypertension began during a period of active service. The examiner must also provide an opinion as to whether the Veteran’s hypertension was the result of his exposure to herbicides or the result of his service-connected diabetes. 3. After all available records have been associated with the claims file and/or e-folder, send the Veteran’s file to a qualified medical examiner to determine the etiology of his anal/rectal abscesses. The Veteran’s claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. As noted above, the examiner should review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: * In the Veteran’s July 1964 examination for service separation, the Veteran noted no complaints relevant to an anal/rectal abscess. * April 1983 private treatment records document diagnosis of anal-rectal abscess. * A June 2009 statement from the Veteran’s treating physician opines that the Veteran’s hypertension is “very much related to his diabetes.” A January 2010 statement from the Veteran’s treating physician reflects that the Veteran has significant diabetes mellitus and hypertension and several other medical symptoms. The physician opined that the Veteran’s longstanding diabetes mellitus was a major factor in his subsequent medical symptoms and complications. b. The examiner must provide an opinion as to whether the Veteran’s anal/rectal abscesses began during a period of active service. The examiner must also provide an opinion as to whether the Veteran’s anal/rectal abscesses were the result of his exposure to herbicides or the result of his service-connected diabetes. 4. After all available records have been associated with the claims file and/or e-folder, send the Veteran’s file to a qualified medical examiner to determine the etiology of his skin disorder. The Veteran’s claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. As noted above, the examiner should review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: * In the Veteran’s July 1964 examination for service separation, the Veteran noted no complaints relevant to an anal/rectal abscess. * In an October 2001 treatment note the Veteran was seen for a follow up appointment regarding an intradermal cyst. * An October 2002 treatment record notes a history of intradermal cysts with past cysts becoming infected and being removed. * A June 2009 statement from the Veteran’s treating physician opines that the Veteran’s hypertension is “very much related to his diabetes.” A January 2010 statement from the Veteran’s treating physician reflects that the Veteran has significant diabetes mellitus and hypertension and several other medical symptoms. The physician opined that the Veteran’s longstanding diabetes mellitus was a major factor in his subsequent medical symptoms and complications. b. The examiner must provide an opinion as to whether the Veteran’s skin disorder began during a period of active service. The examiner must also provide an opinion as to whether the Veteran’s skin disorder was the result of his exposure to herbicides or the result of his service-connected diabetes. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the appellant and her representative must be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel