Citation Nr: 19123770 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 16-30 779 DATE: March 29, 2019 ORDER Entitlement to service connection for type II diabetes mellitus, due to exposure to herbicide agents, is granted. Entitlement to service connection for hypertrophy of the prostate, secondary to now service connected type II diabetes mellitus on a causation basis, is granted. Entitlement to service connection for hypertension, due to exposure to herbicide agents, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran was exposed to herbicide agents while at Udorn Air Force Base in Thailand. 2. The Veteran was diagnosed with type II diabetes mellitus, hypertrophy of the prostate, and hypertension. 3. The evidence is at least evenly balanced as to whether the Veteran has hypertrophy of the prostate that was caused by his now service-connected type II diabetes mellitus. 4. The evidence is at least evenly balanced as to whether the Veteran has hypertension that is related to herbicide agent exposure. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for hypertrophy of the prostate, secondary to type II diabetes mellitus on a causation basis, have been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for hypertension due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1110, 1116, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1960 to August 1964, during which he was at Udorn Air Force Base in Thailand from May 1962 to July 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for type II diabetes mellitus, hypertrophy of prostate, and hypertension. Later that month, the Veteran filed a Notice of Disagreement (NOD). In that NOD, the Veteran disagreed with the claim for hypertrophy of prostate and hypertension; he did not mention the type II diabetes mellitus claim. Nevertheless, post the May 2014 NOD, the Veteran submitted additional information regarding his diabetes claim including a private medical opinion. In October 2014 the RO confirmed and continued the denial for the Veteran’s diabetes claim. In June 2016, the Veteran was issued a statement of the case (SOC) regarding his hypertrophy of prostate and hypertension claims. In June 2016 the Veteran submitted a substantive appeal (Form 9) referencing each of the three claims, however, given that he had not filed a NOD as to the diabetes claim, the RO informed him in a July 2016 letter that the substantive appeal was not valid as to the diabetes claim and it would be considered a new claim for service connection for diabetes. In August 2016, the RO denied service connection for diabetes. The Veteran filed a timely NOD in August 2017. In January 2018, the Veteran testified at the local RO during before a decision review officer regarding his diabetes claim; a transcript of that hearing is of record. In January 2019, the RO issued a SOC as to the claim for service connection for diabetes and the Veteran filed a timely substantive appeal (VA Form 9) in February 2019. Thus, the appeals from the denials of each claim listed on the title page have been perfected and the Board will adjudicate each of the claims in this decision. 38 C.F.R. § 20.200 (an appeal consists of a timely filed NOD and, after an SOC has been furnished, a timely filed Substantive Appeal). The appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(b). Service Connection VA laws and regulations provide that if a veteran was exposed to an herbicide agent during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). In addition, VA now recognizes that herbicide agents were used on the fenced-in perimeters of military bases in Thailand. See Veterans Benefits Administration (VBA) C&P Service Bulletin (May 2010). Thus, VA has determined that exposure to herbicide agent will be conceded for veterans whose duties placed them at or near the perimeters of certain Thailand military bases, including Udorn Air Force Base, allowing for presumptive service connection of the diseases associated with herbicide exposure. See VA Adjudication Procedures Manual (M21-1), pt. IV, subpt. ii, ch. 1, sec. H.5.b. (Jan. 22, 2018). VA based this determination of evidence contained on a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Specifically, if a veteran served as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure is to be conceded on a direct/fact-founds basis. See id. Although VA’s Adjudication Manual is not binding on the Board, in this case it gives guidance as to where and how Agent Orange was used in Thailand. But see DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”). If the claimed disease is not one of the presumptive diseases listed in 38 C.F.R. § 3.309(e), but exposure to an herbicide is presumed or proven by the evidence, the veteran may establish service connection on a direct basis. See 38 U.S.C. § 1113(b) (2012); 38 C.F.R. § 3.303(d) (2017) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). 1. Entitlement to service connection for type II diabetes mellitus, due to herbicide agent exposure, is granted. The Veteran asserts that he currently has type II diabetes mellitus that is related to exposure to herbicide agents in service, specifically while performing his duties in and around Udorn Air Force Base in Thailand. Private treatment records reflect that the Veteran has been diagnosed with type II diabetes mellitus. Type II diabetes mellitus is one of the presumptive diseases listed in the statute and regulation. See 38 U.S.C. § 1116(a)(1)(H); 38 C.F.R. § 3.309(e). The dispositive issue in this case therefore is whether the Veteran’s duties placed him at or near the perimeter of the Udorn Air Force Base and is thus presumed to have been exposed to herbicide agent, which would warrant service connection on a presumptive basis for his type II diabetes mellitus. The evidence confirms that the Veteran was in Udorn, Thailand during his service time. The Veteran’s embarkment record included an entry that the Veteran disembarked at Bangkok, Thailand in May 1962. The following entry reads that the Veteran departed from Udorn, Thailand in July 1962. The Veteran submitted evidence that after he arrived in Bangkok he was immediately sent to Udorn, thereby suggesting that the Veteran spent the time between May 1962 and July 1962 in Udorn. As proof of his time in Udorn, the Veteran submitted a statement from a Lieutenant Colonel that stated that once landing in Bangkok the service men “proceeded immediately to Udorn.” The Veteran also submitted a membership card for the Charter Member of the Enlisted Club of Camp Rama I. The card reads that the location was Udorn, Thailand and the Veteran was a member in 1962. Moreover, the Veteran’s duties placed him at or near the perimeter of a qualifying Air Force Base and is thus presumed to have been exposed to herbicide agent. During the January 2018 hearing at the RO, the Veteran detailed his exposure to herbicide agents while near the perimeter in Udorn, Thailand. He indicated that he patrolled the border between Thailand and Laos, that he was warned not to drink the local water, and that he could see where foliage began and ended given the spraying of herbicide agents. Udorn is one of the qualifying Air Force Bases that allows for the presumption of exposure to herbicide. The Veteran’s DD Form 214 indicated that the Veteran’s military occupation specialty was a rifleman, making it likely that he patrolled the area as he claimed in his RO hearing. Thus, the Veteran’s duties placed him at or near the perimeter of a qualifying Air Force Base and he is thus presumed to have been exposed to herbicide agent. There is no affirmative evidence to explicitly contradict the Veteran’s reports of regularly being at the perimeter of the base. The Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In addition, the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). Neither the lay statements nor the service records definitively demonstrate whether or not the Veteran’s duties placed him at or near the perimeter of the Udorn Air Force Base. However, both, when combined with the fact that the Veteran’s reports are generally consistent with the information contained in his service records, are persuasive indicators that the Veteran’s duties placed him at or near the perimeter of at the Udorn Air Force Base, as he claims. As the Veteran’s lay statements are both competent and credible in this regard, the evidence is at least approximately balanced on these questions at issue. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. Therefore, the Veteran’s duties placed him at or near the perimeter of the Udorn Air Force Base. 38 U.S.C. § 5107(b). See also 38 C.F.R. § 3.102 (benefit of the doubt applies to every point within a claim as well as to its ultimate disposition). Thus, the Veteran is presumed to have been exposed to herbicide agents. As the Veteran has been diagnosed with type II diabetes mellitus and this disability is presumed service connected in veterans who were exposed to herbicide agents, entitlement to service connection for type II diabetes mellitus is warranted on a presumptive basis. 2. Entitlement to service connection for hypertrophy of the prostate, secondary to type II diabetes mellitus, on a causation basis, is granted. The Veteran asserts that he currently has hypertrophy of the prostate that is related to his now service connected type II diabetes mellitus. While service connection is warranted where a current disability resulted from an injury or disease incurred in or aggravated by active military service, service connection may also be granted for disability proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Private treatment records reflect that the Veteran was diagnosed with hypertrophy of the prostate. The July 2014 private medical opinion indicated that there is a causation relationship between the Veteran’s diabetes and prostate hypertrophy because diabetes can cause prostate hypertrophy. The opinion also included medical literature which indicated that diabetes can lead to prostate hypertrophy. This indicates a link between type II diabetes mellitus (for which service connection is warranted, as discussed above) and hypertrophy of the prostate. There is no evidence counter to a finding that hypertrophy of the prostate is secondary to diabetes mellitus on a causation basis. Thus, service connection for hypertrophy of the prostate is warranted on a secondary, causation basis. 3. Entitlement to service connection for hypertension, due to herbicide agent exposure, is granted. The Veteran asserts that he has hypertension that is related to exposure to herbicide agent in service while performing his duties in Thailand. Hypertension is not a disease listed under 38 U.S.C. § 1116 (a)(1) or 38 C.F.R. § 3.309(e) that is presumed service connected in veterans who are exposed to Agent Orange. As noted, the Veteran may establish service connection for hypertension on a direct basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown. Private treatment records reflect that the Veteran was diagnosed with hypertension. As established above, the Veteran is presumed to have been exposed to herbicide agent. Therefore, the dispositive issue with regard to the claim for service connection for hypertension is whether the Veteran’s hypertension is related to his exposure to herbicide agents in Thailand. In a July 2014 opinion, a private physician medical opinion from July 2014. The physician indicated that there is a direct correlation between herbicide agent exposure and hypertension. The physician included medical literature and opined that in her medical opinion the Veteran’s hypertension could be a result of his herbicide exposure during his service. Although the opinion was stated somewhat uncertainly, it is nevertheless evidence in support of the claim. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant’s psychological disorder must be considered as “evidence” of whether the disorder was incurred in service). Moreover, the physician explained the reasons for her conclusions based on citation to specific medical literature and her opinion is thus entitled to some probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In addition, VA has recently upgraded the association between hypertension and herbicide agent, specifically, moving it from the “limited or suggestive” category to the category of “sufficient” evidence of an association. Veterans and Agent Orange: Update 11 (2018). See also Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008, 75 Fed. Reg. 81,332-01 (Dec. 27, 2010)). This supports the opinion of the private physician, and there is no evidence to the contrary. For the foregoing reasons, the weight of the evidence supports a relationship between the Veteran’s hypertension and his herbicide agent exposure. Entitlement to service connection for hypertension is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lopez, Law Clerk