Citation Nr: 18160844 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 15-38 942 DATE: December 28, 2018 ORDER Service connection for diabetes mellitus, type II, to include as due to exposure to herbicides in Thailand, is denied. An earlier effective date for the grant of service connection for erectile dysfunction is denied. An earlier effective date for the grant of service connection for left lower extremity sciatica is denied. An earlier effective date for the grant of service connection for right lower extremity sciatica is denied. REMANDED Entitlement to an initial compensable rating for erectile dysfunction. Entitlement to an initial rating in excess of 10 percent for left lower extremity sciatica. Entitlement to an initial rating in excess of 10 percent for right lower extremity sciatica. FINDINGS OF FACT 1. The probative evidence of record indicates that the Veteran was an Administrative Specialist at a Royal Thai Air Force Base and was temporarily assigned to pull guard duty for a few hours in a tower on the perimeter as a Security Police Augmentee in late April 1975; it does not indicate that he served regularly around the perimeter so as to warrant application of the presumption of exposure to herbicide agents or that he was actually exposed to Agent Orange. 2. The Veteran did not have diabetes mellitus, type II in service or within a year of separation. 3. The Veteran did not file a claim for service connection for erectile dysfunction or left or right lower extremity sciatica; the benefits were granted after service connection was granted for intervertebral disc syndrome with degenerative arthritis (hereinafter a back disorder); there was no formal or informal claim to reopen the previously denied claim for service connection for a back disorder received prior to March 3, 2011; the Board is referring a January 2015 claim of clear and unmistakable error (CUE) in the prior rating decisions denying service connection for a back disorder for initial consideration by the Agency of Original Jurisdiction (AOJ). CONCLUSIONS OF LAW 1. The criteria for establishing service connection for diabetes mellitus, type II are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for an effective date prior to March 3, 2011, for the grant of service connection for erectile dysfunction are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to March 3, 2011, for the grant of service connection for right lower extremity sciatica are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date prior to March 3, 2011, for the grant of service connection for left lower extremity sciatica are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to July 1975, to include service in Thailand. In his August 2015 Form 9, the Veteran requested a hearing before the Board of Veterans’ Appeals (Board). He withdrew that request in October 2018. In April 2018, the Veteran submitted a request for his claim be expedited due to financial hardship. As such, it is considered a motion to Advance on the Docket (AOD). Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. See 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). Sufficient cause includes severe financial hardship. Any motion for advancement should be supported by pertinent documentation, such as an eviction notice, proof of homelessness, foreclosure documents or indication that water, heat or lights will be shut off. The Board has considered the Veteran’s motion and finds that the Veteran has not submitted sufficient evidence to demonstrate the necessity of an AOD due to financial hardship and the motion is denied. In a January 2015 statement, the Veteran argued that the AOJ committed clear and unmistakable error (CUE) in the rating decision that originally denied service connection for a back disorder in August 1986. Review of the record reveals that the AOJ has not addressed the CUE claim. The Board finds that the claim is not inextricably intertwined with the claims for earlier effective dates for erectile dysfunction or lower extremity sciatica as a decision on those claims will not prejudice a future decision with respect to CUE, which may be raised at any time, regardless of whether the effective date claims are denied on the merits. As there were four prior denials of entitlement to service connection for a back disorder, in August 1986, October 2006, February 2007 and May 2008, and as the matter of CUE in those decisions is reasonably raised by the Veteran’s statement, the Board finds that referral to the AOJ of the matter of whether there was CUE in any of the four rating decisions regarding the denial of service connection for a back disorder is warranted. See Bowen v. Shinseki, 25 Vet. App. 250, 254 (2012) (requests for revision of an AOJ decision based on CUE must first be submitted to and adjudicated by the AOJ before the Board can attain jurisdiction over the request). I. Service Connection for diabetes mellitus, type II Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Diabetes mellitus, type II, is on the list of diseases for which presumptive service connection can be awarded if the evidence indicates exposure to an applicable herbicide agent. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Department of Veterans Affairs (VA) regulations do not presume “herbicide agent” - as VA defines that term in 38 C.F.R. § 3.307 (a)(6)(i) - 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. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 2, Section C (M21-1). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in “Project CHECO Southeast Asia Report: Base Defense in Thailand.” 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, to include diabetes mellitus, type II. See 38 C.F.R. § 3.307 (e). Most troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (RTAFBs) 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. This applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. See M21-1, Part IV, Subpart ii, Chapter 2, Section C.10(q). The Veteran’s medical records show he was diagnosed with diabetes in March 2010. Thus, he has a current disability with respect to this claim. Military personnel records confirm that the Veteran served at Nakhon Phanom (NKP) RTAFB from June 1974 to July 1975. A performance report indicated he was an Administrative Specialist and assisted in maintenance and control of Base Operations, administrative files and publications. In a November 2014 Correspondence, the Veteran reported that while stationed at NKP, he served as a Security Police Augmentee. He described riding in a jeep with a 38 caliber and M-16 for hours checking the perimeter and being placed in guard towers starting in late April 1975. In a separate correspondence, he indicated being a colonel’s personal driver and often driving him around the perimeter and that he visited a Thai national right outside the fence to socialize with her and may have been exposed to herbicides in the area of the front gate. In a November 2016 statement, the Veteran reported that following basic training in Texas, he went to an Air Force Base in Florida and trained as a Security Police Augmentee and was oftentimes assigned guard duty at the West gate or front gate. He stated that was a temporary reassignment. He indicated that in August 1974, he flew from California to Thailand with layovers in Hawaii and Da Nang, Vietnam. He described going to a cafeteria in Da Nang where he ordered a hamburger. He stated that after arriving in Thailand he was a private driver for a lieutenant colonel for 2 weeks and in late April 1975 pulled duty as a Security Police Augmentee from 12 am to 2 am in a tower. He recalled being driven in a Jeep to the perimeter for this temporary assignment. He argued that his temporary duty assignments and his stop-over in Da Nang support his allegation that he was exposed to herbicides during service. In February 2017, the Veteran submitted a statement from another veteran who was stationed at NKP Thailand from 1973 thru 1974 and was assigned to a security police squadron. He indicated that as security police, they used Security Police Augmentees mostly at night pulling duty in the towers on the perimeter. He indicated that augmentees were used from different specialties and it was a temporary duty. He indicated that he talked with the Veteran whom he met when the Veteran commented on his Air Force jacket. He stated that the Veteran’s memory of serving as a Security Police Augmentee was accurate and the individual believed his description. The Board confirmed that the individual who provided the statement served at NPK RTAFB and that his MOS was security. Overall, the Board finds that the record demonstrates the Veteran’s presence on a RTAFB in Thailand and that he served as a Security Police Augmentee at least once near the end of the qualifying time period. Personnel records do not confirm that the Veteran was ever present in Vietnam. In fact, records indicate he was in Thailand beginning in June, not August 1974. The evidence does not support a finding that the Veteran’s service in Thailand, to include his presence in a vehicle near the perimeter, near the front gate or in a tower for a few hours would have exposed him to herbicide agents such as Agent Orange. Upon review of the evidence, the Board finds that exposure to herbicide agents during the Veteran’s service has not been demonstrated, and that means of verifying exposure pursuant to current procedures has been exhausted. As the probative evidence does not support a finding that the Veteran was exposed to herbicide agents during service, service connection for diabetes on a presumptive basis must be denied. In addition, the evidence of record does not support a finding that diabetes had onset in service or within a year thereafter. Indeed, medical evidence establishes onset of diabetes in 2010, more than 30 years after separation from service and does not otherwise reflect that it developed as a result of military service. Given that the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine does not apply and the claim for service connection must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Earlier Effective Dates for Erectile Dysfunction and Sciatica The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an award of service connection is based upon a variety of factors, including date of claim, date entitlement is shown, and finality of prior decisions. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA”). Congress has provided that, unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). It further provides an exception to the general rule if an application for disability compensation is received within one year from discharge or release from service, the effective date of an award of disability compensation shall be the day following the date of the Veteran’s discharge or release from service. 38 U.S.C. § 5110(b)(1). Here, in a May 2013 rating decision, the RO granted service connection for a back disorder. Service connection was also granted for right and left lower extremity sciatica and for erectile dysfunction both associated with intervertebral disc syndrome. The effective date was set as the date of the Veteran’s March 2011 application to reopen his claim for service connection for a back disorder. In his June 2013 notice of disagreement, the Veteran specifically appealed the effective dates assigned for his erectile dysfunction and lower extremity sciatica. In January 2015, the Veteran submitted a statement contesting the effective date for the grant of service connection for his back disorder and arguing that the benefits should go back to 1983 when he initially filed for the benefit. Notably, such disagreement as to the effective date for the back disorder was not received within a year of the May 2013 rating decision. The Board has referred the free-standing CUE claim to the AOJ for initial consideration. By way of background, the Veteran first applied for service connection for a back disorder in 1983. This claim was denied in August 1986 and he did not perfect an appeal. Thereafter, he filed a claim to reopen in December 2005. This was denied in October 2006, February 2007 and May 2008 because the RO determined new and material evidence had not been received to reopen the claim. The Veteran did not perfect an appeal of the May 2008 denial and that became final. Thereafter, in March 2011, he again filed for service connection for his back. A VA examination conducted in September 2011 contained an opinion that the Veteran’s back disorder was at least as likely as not related to service. Given that the May 2008 denial of the claim for service connection was final and there is no indication that the Veteran filed a claim to reopen between that time and March 3, 2011, the date of the application to reopen the claim for service connection for a back disorder is the earliest date an effective date can be by law. In terms of the effective dates for lower extremity sciatica and erectile dysfunction, the evidence demonstrating a link to service, i.e. that these disorders were secondary to a service-connected back disorder presented in the September 2011 examination report. Because the earliest possible effective date for the grant of service connection for the Veteran’s back disorder is March 3, 2011, that is also the earliest date which can be assigned for lower extremity sciatica and erectile dysfunction as service connection granted on a secondary basis cannot be awarded prior to the grant of service connection for the primary disability, here the Veteran’s intervertebral disc syndrome with degenerative arthritis. Congress and VA have established the laws and regulations governing the assignment of effective dates, which clearly set forth the provisions for when an effective date for the grant of service connection may be. The Board is bound by the laws and regulations applicable to the benefit sought. See 38 C.F.R. § 19.5. In the present case, those laws and regulations prohibit the assignment of an effective date earlier than March 3, 2011. There is no doubt to be resolved and the claims for earlier effective dates for right and left lower extremity sciatic and erectile dysfunction must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran’s claims for higher initial ratings for erectile dysfunction and right and left lower extremity sciatica. See 38 C.F.R. § 19.9. In an October 2016 correspondence, the Veteran requested a copy of the curriculum vitae (C.V.), resume, list of publications, list of specialties, etc., for the VA examiner who examined him in June 2015 such that the examiners’ experience and qualifications may be examined, reviewed, questioned, and/or challenged. The examinations performed by that practitioner related to the peripheral nerves and male reproductive system. As such, they are relevant to the Veteran’s increased rating claims on appeal. The Board finds that attempting to obtain the C.V. for that examiner, in this instance, is warranted in light of the duty to assist the Veteran in substantiating his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Nohr v. McDonald, 27 Vet. App. 124, 133-134 (2014). Therefore, this appeal must be remanded to fulfill the Veteran’s records request. The matters are REMANDED for the following action: Obtain the C.V. for the examiner who examined the Veteran in June 2015 and provide it to the Veteran for his review. If the document cannot be located, the file should clearly document the efforts undertaken to obtain the record and the Veteran should be notified of the unavailability of the record. After providing the Veteran the opportunity to respond, readjudicate the initial rating claims, to include, if appropriate, providing an additional VA examination. If any benefits remain denied, issue a supplemental statement of the case. K. M. SCHAEFER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel