Citation Nr: 1811226 Decision Date: 02/22/18 Archive Date: 03/06/18 DOCKET NO. 14-12 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado ISSUES 1. Entitlement to service connection for diabetes mellitus as due to herbicide exposure. 2. Entitlement to service connection for a heart disability, to include coronary artery disease, as due to herbicide exposure. 3. Entitlement to service connection for retinopathy as secondary to diabetes mellitus. 4. Entitlement to service connection for neuropathy of the feet as secondary to diabetes mellitus. 5. Entitlement to service connection for cataracts as secondary to diabetes mellitus. 6. Entitlement to service connection for glaucoma as secondary to diabetes mellitus. 7. Entitlement to service connection for periodontal disease as secondary to diabetes mellitus. 8. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus. 9. Entitlement to service connection for neuropathy of the hands as secondary to diabetes mellitus. 10. Entitlement to service connection for diabetic foot disability as secondary to diabetes mellitus. 11. Entitlement to service connection for high blood pressure as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Colorado Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the Air Force from July 1965 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing at the RO in Denver, Colorado. A transcript of the proceeding has been associated with the claims file. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for cataracts, glaucoma, periodontal disease, erectile dysfunction, neuropathy of the bilateral hands, a diabetic foot condition, and high blood pressure are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in the U.S. Air Force as an inventory management specialist at Udorn Royal Thai Air Force Base (RTAFB) from June 1967 to June 1968, and had work duties at or near the air base perimeter. 2. The Veteran was exposed to Agent Orange while on active duty at Udorn RTAFB. 3. The Veteran has diabetes mellitus, type II. 4. The Veteran has coronary artery disease. 5. The Veteran has bilateral diabetic retinopathy that is shown to be caused by service-connected disability. 6. The Veteran has diabetic neuropathy of both feet that is shown to be caused by service-connected disability. CONCLUSIONS OF LAW 1. Diabetes mellitus may be presumed to have been incurred in wartime service as due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. Coronary artery disease may be presumed to have been incurred in wartime service as due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 3. The Veteran's bilateral diabetic retinopathy is proximately due a service-connected disease. 38 C.F.R. §§ 3.102, 3.310 (2017). 4. The Veteran's bilateral foot diabetic neuropathy is proximately due a service-connected disease. 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claims for service connection for diabetes mellitus, coronary artery disease, diabetic retinopathy, and bilateral foot diabetic neuropathy are all granted herein, as explained below. As such, the Board finds that any error under the VCAA with regard to the claims is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis A. Diabetes Mellitus and Heart Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may 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) (2017). To establish service connection, the evidence generally must show: "(1) the existence of a present disability, (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served on active duty continuously for 90 days or more during a period of war or after December 31, 1946, service connection may be awarded on a presumptive basis for certain "chronic" diseases listed in 38 C.F.R. § 3.309(a), including arthritis, if the chronic disease manifested to a compensable degree within a prescribed time period. 38 U.S.C.A. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Presumptive herbicide exposure is generally provided for veterans who "during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975." 38 U.S.C.A. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). In the case of certain veterans who have been exposed to an herbicide agent during active service, 38 C.F.R. § 3.309(e) provides presumptive service connection for certain listed diseases, including diabetes mellitus and coronary artery disease. In May 2010, VA published a Compensation & Pension (C&P) Service Bulletin that established "New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea." In explaining the need for the new procedures, the bulletin acknowledged 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. In August 2015, the M21-1MR manual provisions relating to claimed herbicide exposure in Thailand were rescinded and replaced with new M21-1 provisions, and were thereafter subject to additional revision. A version of M21-1, IV.ii.1.H.5.b., provides that for veterans who served during the Vietnam Era in the U.S. Air Force in Thailand at one of the listed Royal Thai Air Force Bases (RTAFBs) bases, including Udorn, as a security policeman, security patrol dog handler, member of the security police squadron, or "otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, . . . concede herbicide exposure on a direct/facts-found basis." (Emphasis added). This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309(e). The Board is cognizant that a Department of Defense report written in 1973, Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972, available to the public on the VA website at https://www.publichealth.va.gov/exposures/ agentorange/locations/thailand.asp, notes specifically regarding the Udorn RTAFB that "the perimeter was also very close to the aircraft at several points." See Project CHECO Report at p.58 and 73. (Emphasis added). The Veteran served on active duty in the Air Force from July 1965 to December 1968. He claims that he has diabetes mellitus and a heart disability, to include coronary artery disease, due to exposure to herbicides during his service at the Udorn RTAFB in Thailand. See hearing transcript. Regarding his Thailand service, the Veteran's AF Form 7 and DD Form 214 reflect that he served in Thailand from June 1967 to June 1968 as an inventory management specialist. See Personnel records, received December 2012 at p.19 of 44. His performance evaluation reports from that period show he was stationed at Udorn RTAFB. See Personnel Records, received June 2014 at p.11-13 of 44. The Veteran testified at the Board hearing, regarding his duties taking him to the perimeter at Udorn RTAFB, that "I had to keep track of all the equipment, make sure it was signed in, signed out, picked up, and redelivered when it was calibrated. . . I was down on the flight line just about every day and I was going on and off the base and around the edges of the flight line and that was my daily duty every day." He further testified, in short, that picking up equipment from aircraft at times involved having to essentially go outside of the base perimeter, and then through a gate on the edge of the flight line. The Board finds the Veteran's testimony in this regard to be credible, and to be supported by the Project CHECO report that shows that the aircraft at Udorn RTAFB were very close to the base perimeter. The Board also acknowledges that one performance evaluation report shows "on several occasions Airman [the Veteran] accompanied equipment to and from Clark Air Base, Philippines, for calibration," which also tends to corroborate his account of his duties taking him to aircraft near the perimeter. See Personnel Records, received June 2014 at p.13 of 44. Based thereon, the Board finds that there is sufficient evidence that the Veteran, while serving at Udorn RTAFB during the Vietnam Era, was "near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence." See M21-1, IV.ii.1.H.5.b. Therefore, the Board will "concede herbicide exposure." See id. The Board acknowledges that, in December 2012, the RO associated with the claims file a copy of an undated VBA memorandum, "Herbicide use in Thailand during the Vietnam Era," which was attached to Fast Letter 09-20, which essentially states that there is no record of use of tactical herbicides in Thailand. The Board notes, however, that after the issuance of Fast Letter 09-20, the above-discussed May 2010 C&P Service Bulletin was issued establishing new procedure in cases involving alleged herbicide exposure in Thailand, which May 2010 C&P Service Bulletin acknowledges tactical herbicides may have been used in Thailand. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171 (2016) (noting "the Secretary concedes that the Board inaccurately stated that tactical-type herbicides were not used in Thailand," and citing the May 2010 C&P Service Bulletin that acknowledges "the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides."). Subsequently, the corresponding M21-1 provisions were revised, and Fast Letter 09-20 was rescinded in May 2013. The Board also acknowledges that the Veteran has also alleged having flown to the Republic of Vietnam on occasions. As herbicide exposure has already been conceded in this case, the Board finds whether he set foot in the Republic of Vietnam to be moot. An April 2012 private treatment record from Dr. W.W. shows the Veteran has been followed for diagnosed diabetes mellitus and coronary artery disease. See PTRs, received December 2012 at p.5 of 9; see also PTRs, Dr. D.T., received December 2012 at p.3 of 58; SSA Records (pt. 1 - Dr. D.T.), received May 2015 at p.5 of 34. In light of the fact that herbicide exposure has been conceded in this case, and the Veteran is shown to have diabetes mellitus and coronary artery disease, the Board finds that service connection for diabetes mellitus and coronary artery disease may be presumed. 38 C.F.R. § 3.309(e). Therefore, the Board concludes that service connection for diabetes mellitus and coronary artery disease is warranted, and the claims are granted. B. Retinopathy and Bilateral Foot Diabetic Neuropathy The Veteran claims that he has bilateral retinopathy and bilateral foot diabetic neuropathy secondary to his service-connected diabetes mellitus. See Board hearing transcript. A "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." 38 C.F.R. § 3.310(a) (2017). "Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence." 38 C.F.R. § 3.310(b) (2017); see also Allen v. Brown, 7 Vet. App. 439 (1995). A July 2012 letter from the Veteran's private ophthalmologist, Dr. T.A., shows he has been followed for diagnosed diabetic retinopathy "in each eye." See PTRs, received December 2012 at p.8 of 74. The underlying treatment records from Dr. T.A. likewise show that the Veteran was followed for diagnosed diabetic retinopathy. Likewise, a May 2013 private ophthalmology record from Dr. P.H. (Colorado Retina Associates) shows diagnosed bilateral (OU) proliferative diabetic retinopathy (PDR), status post panretinal photocoagulation (PRP), stable. See PTRs, received May 2013 at p.16 of 17; see also PTRs (Colorado Retina), received December 2012 at p.12 of 59. An August 2012 private treatment record from Dr. D.T. shows diagnosed diabetic neuropathy of both feet. See PTRs, Dr. D.T., received December 2012 at p.6 of 11; see also PTRs, received October 2012 (Dr. R. R.-J.) at p.26 and 43 of 76; PTRs, received October 2012 (Dr R. R.-J. - set II) at p.7 of 75. Likewise, private podiatry records from the Rocky Mountain Foot and Ankle Center show the Veteran has been followed for diabetic neuropathy of both feet. See PTRs (Dr H.), received December 2012 at p.13 of 74. Also, a January 2007 private EMG/nerve conduction study report of the lower extremities shows an impression of severe polyneuropathy. See SSA records (pt. 4), received May 2015 at p.18 of 38. As shown above, the Veteran has diagnosed diabetic retinopathy of both eyes, and diabetic neuropathy of both feet, and he is presently service connected for diabetes mellitus. Therefore, the Board concludes that service connection for bilateral diabetic retinopathy, and for bilateral foot diabetic neuropathy, is warranted and will grant the claims. ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for coronary artery disease is granted. Entitlement to service connection for bilateral diabetic retinopathy is granted. Entitlement to service connection for bilateral foot diabetic neuropathy is granted. REMAND A. Glaucoma and Cataracts The Veteran also claims that he has bilateral glaucoma and cataracts as secondary to his service-connected diabetes mellitus. See Board hearing transcript. A November 2000 letter from Dr. J.T.A. shows he noted "as far as his diabetes is concerned, he does have a suspicion of glaucoma." See PTRs (Colorado Retina), received December 2012 at p.58 of 59. A June 2010 letter from Dr. J.T.A. shows he saw the Veteran "recently in followup of his glaucoma and diabetes." Dr. J.T.A. concluded in his letter that "the glaucoma is reasonably well controlled with his drops. I do not see evidence of new problems from the diabetes and so we will just continue to monitor." See PTRs (Colorado Retina), received December 2012 at p.4 of 59. A July 2012 letter from Dr. J.T.A. notes a history of treatment for the Veteran's proliferative diabetic retinopathy with panretinal photocoagulation, and associated "neovascularization" of both eyes. See PTRs, received December 2012 at p.8 of 74; see also p.53 of 59. The Board is cognizant that there exists a type of glaucoma termed "neovascular glaucoma," albeit this is not noted in the private treatment records. The Veteran has not been afforded a VA examination relating to his glaucoma claim. In light of the above November 2000, June 2010, and July 2012 letters from Dr. T.A. that tend to indicate a possible relationship between the Veteran's glaucoma and his service-connected diabetes mellitus or diabetic retinopathy, the Board finds that the low threshold requirement for providing the Veteran with a VA examination relating to the glaucoma claim has been met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board finds that this matter should be remanded to obtain a VA examination to address whether the Veteran's bilateral glaucoma is caused or aggravated by the Veteran's service-connected diabetic retinopathy or diabetes mellitus. The July 2012 letter from Dr. T.A. also notes the Veteran's history of surgical treatment for a cataract in the right eye, and that examination revealed a cataract in the left eye. The prior November 2000 letter by Dr. J.T.A. noted at the outset that he saw the Veteran "in follow-up of his diabetes," and Dr. J.T.A. noted at that time that "he has incipient nuclear sclerotic cataracts." As this record indicates a possible relationship between the Veteran's service-connected diabetes mellitus and his bilateral cataracts, on remand, the VA examiner should also address whether the Veteran's bilateral cataracts are caused or aggravated by his service-connected diabetes mellitus. In addition, the Board notes that the July 2017 Supplemental Statement of the Case (SSOC), which was mailed to a PO Box address, was returned to VA as undeliverable. Subsequent August 2017 Third Party Correspondence and an August 2017 Report of General Information indicate a more recent street address, which address is also shown in CAPRI records. Therefore, on remand, the AOJ should attempt to verify the Veteran's current mailing address, and resend a copy of the July 2017 SSOC to the Veteran's last known address. See 38 C.F.R. § 19.31(b)(1) ("The AOJ will furnish the appellant, and his or her representative, if any, a SSOC if the AOJ receives additional pertinent evidence after a SOC or most recent SSOC has been issued.") (emphasis added); see also 38 C.F.R. § 19.37(a). B. Remaining Claims The Veteran also claims entitlement to service connection for the following, all claimed as secondary to his service-connected diabetes mellitus: periodontal disease, erectile dysfunction, neuropathy of the bilateral hands, a diabetic foot condition, and high blood pressure. As discussed above, the July 2017 SSOC was returned to VA as undeliverable. August 2017 records in the claims file indicate that the Veteran's address has changed, and that the SSOC was not sent to the last known address of the Veteran. Therefore, before a decision can be made on the claims, a copy of the July 2017 SSOC should be mailed to the Veteran at his last known address. See 38 C.F.R. § 19.31(b)(1) ("The AOJ will furnish the appellant, and his or her representative, if any, a SSOC if the AOJ receives additional pertinent evidence after a SOC or most recent SSOC has been issued.") (emphasis added); see also 38 C.F.R. § 19.37(a). In that regard, the AOJ should attempt to verify the correct mailing address for the Veteran. Accordingly, the case is REMANDED for the following action: 1. Mail a copy of the July 2017 SSOC to the Veteran at his last known address. In that regard, attempt to verify the Veteran's present mailing address. Also review the addresses shown in August 2017 Third Party Correspondence, and in the August 2017 Report of General Information; and reference VACOLS and CAPRI. 2. Schedule the Veteran for a VA examination to determine the current nature and the etiology of his claimed glaucoma and cataracts. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder shoulld be provided to the examiner for review in conjunction with the examination. The examiner should indicate whether it is "at least as likely as not" (meaning likelihood of at least 50%) that the Veteran's claimed glaucoma and cataracts were caused or aggravated by (beyond the natural progress of the disease) his service-connected a) diabetes mellitus, or b) diabetic retinopathy. Please ask the VA examiner to review the relevant facts set forth in this remand. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then, readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). The appellant 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.A. §§ 5109B, 7112 (West 2014). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs