Citation Nr: 19124007 Decision Date: 04/02/19 Archive Date: 03/30/19 DOCKET NO. 17-46 384 DATE: April 2, 2019 ORDER New and material evidence having been received, entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is reopened. New and material evidence having been received, entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, to include as due to herbicide exposure, is reopened. New and material evidence having been received, entitlement to service connection for cataracts, to include as due to herbicide exposure, is reopened. New and material evidence having been received, entitlement to service connection for a heart condition, to include coronary artery disease, to include as due to herbicide exposure, is reopened. New and material evidence having been received, entitlement to service connection for bilateral hearing loss, to include as due to herbicide exposure, is reopened. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is granted. Entitlement to service connection for coronary artery disease due to herbicide exposure, is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to an effective date earlier than May 21, 2013 f or the grant of service connection for tinnitus is denied. Entitlement to service connection for hypertension, to include as due to herbicide exposure is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure is remanded. Entitlement to service connection for cataracts, to include as due to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. In an unappealed May 2008 rating decision, the RO denied the Veteran’s service connection claims for diabetes mellitus, type II; bilateral upper and lower extremity peripheral neuropathy; cataracts; a heart condition; and bilateral hearing loss, all to include as due to herbicide exposure. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the May 2008 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s service connection claims for diabetes mellitus, type II; bilateral upper and lower extremity peripheral neuropathy; cataracts; a heart condition; and bilateral hearing loss, all to include as due to herbicide exposure. 3. The Veteran served in the U.S. Army in Korat, Thailand and Ramasun Station near Udorn Thai Air Force Base during the Vietnam era as an aircraft mechanic and performed duties around the perimeter of the base. 4. The Veteran’s hypertension is related to his military service, to include exposure to herbicides while serving in Thailand. 5. The Veteran’s bilateral hearing loss is related to his military service. 6. The Veteran’s May 9, 2007, claim for tinnitus was finally denied in a May 2008 rating decision. The first formal or informal claim for tinnitus received after May 2008, was received on May 21, 2013. CONCLUSIONS OF LAW 1. The May 2008 rating decision that denied the Veteran’s claims for entitlement to service connection for diabetes mellitus, type II; peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities; cataracts; a heart condition to include coronary artery disease; and bilateral hearing loss, all to include as due to herbicide exposure, is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The evidence received since the May 2008 rating decision is new and material, and the claims of entitlement to service connection for diabetes mellitus, type II, peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities; cataracts; a heart condition to include coronary artery disease; and bilateral hearing loss, all to include as due to herbicide exposure, are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for diabetes mellitus, type II with all residuals have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(e) (2017). 4. The criteria for entitlement to service connection for a heart condition, to include coronary artery disease, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(e) (2017). 5. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303(a), 3.304, 3.307(b), 3.309(a) (2017). 6. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2017). 7. The criteria for an effective date earlier than May 21, 2013, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from June 1968 to January 1970. With respect to the issues of entitlement to service connection for diabetes mellitus, type II, peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, cataracts, a heart condition, and bilateral hearing loss, these matters comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 rating decision issued by the VA Regional Office (RO) in Cleveland, Ohio. With respect to the issue of entitlement to an effective date prior to May 21, 2013 for the grant of service connection for tinnitus, this matter comes before the Board on appeal from a September 2017 rating decision. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure; whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, to include as due to herbicide exposure; whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for cataracts, to include as due to herbicide exposure; whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for a heart condition, to include coronary artery disease, to include as due to herbicide exposure; and whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for bilateral hearing loss, to include as due to herbicide exposure Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1) (2017). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). With respect to these claims for entitlement to service connection for diabetes mellitus, type II; peripheral neuropathy of the bilateral upper and bilateral lower extremities; cataracts; a heart condition, to include coronary artery disease; and bilateral hearing loss, all to include as due to herbicide exposure, since the final May 2008 Rating decision, the Board has received additional evidence regarding these claims, including VA treatment records and lay statements regarding the Veteran’s military service in Thailand. This evidence is new and material because it was not of record at the time of the final rating decision in May 2008. The VA treatment records indicate diagnoses of diabetes mellitus, type II; peripheral neuropathy in the hands and feet; cataracts; a heart condition; and bilateral hearing loss. The Veteran’s lay statements further explain where the Veteran was stationed in Thailand, bolstering his argument that he was exposed to Agent Orange while serving in Thailand. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating these service connection claims. See Shade, 24 Vet. App. 110. Service Connection 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure; entitlement to service connection for coronary artery disease, to include as due to herbicide exposure A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In order to establish qualifying “service in Vietnam,” a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Significantly, however, there have been important changes in the way that the Regional Office (RO) develops claims of exposure to Agent Orange in Thailand. A May 2010 Compensation and Pension Bulletin indicated that, after reviewing documents related to herbicide use in Vietnam and Thailand, it had been 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. The evidence of this was found in a declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Therefore, according to the Service, when herbicide-related claims involved Thailand service are received, RO personnel should now evaluate the treatment and personnel records to determine whether a veteran’s service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. Specifically, the report observes that some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from the Republic of Vietnam, or a commercial variant of much greater strength and with the characteristics of tactical herbicides. Therefore, the Service determined that special consideration of herbicide exposure cases 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. The VA’s Adjudication Procedure Manual Rewrite, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q) was adopted for application when a veteran alleged exposure to herbicides in Thailand. It directs, in pertinent part, that if a veteran served in the United States Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs), including U-Tapao, as an Air Force security policeman, a security patrol dog handler, a member of the security police squadron, or in a capacity that otherwise placed them near the air base perimeter as shown by the evidence of record, then herbicide exposure is to be conceded. The M21-1MR provides that, if herbicide exposure cannot be conceded based upon the above described facts, a copy of the Service’s “Memorandum for the Record” is to be placed in the veteran’s claims file and the veteran is to be asked for the approximate dates, location, and nature of the alleged herbicide exposure. If the veteran fails to furnish the requested information, the claim will be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure did not exist. The claim may then be decided based on the evidence of record. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin’s lymphoma, soft tissue sarcoma, Hodgkin’s disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson’s disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e). Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as stroke. Id at note 3. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become 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 during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). VA’s Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). In the instant case, the Veteran contends that his diabetes mellitus, type II and his coronary artery disease, are due to his exposure to Agent Orange while he was stationed in Ramasun Station in Udorn, Thailand as well as Korat, Thailand from January 1969 to January 1970. Specifically, the Veteran stated he was exposed to Agent Orange while he was in Udorn, Thailand as his barracks were next to the perimeter and he would regularly sunbathe directly against the perimeter. In Korat, Thailand, the Veteran reported he was constantly serving around the perimeter of the base where Agent Orange was sprayed. The Veteran claims his barracks was directly across the street from the perimeter. He also reported that he crossed over the perimeter every time he came and left the base. The Veteran also claims that he worked in a hangar as an aircraft mechanic along the perimeter with the 270th Transportation Company. The Veteran’s DD-214 confirms the Veteran’s military occupational specialty as an aircraft mechanic. Further, the Veteran has provided credible statements that he performed duties in Thailand along the base perimeter during the applicable time period. Accordingly, the Board finds that the Veteran has established exposure to herbicides during service in Thailand. Given that the Veteran has established exposure to herbicides during service, and he has a diagnosis of diabetes mellitus, type II and coronary artery disease, a nexus is presumed under the law, and entitlement to service connection for diabetes mellitus, type II with all residuals and entitlement to service connection for coronary artery disease, are warranted. 38 C.F.R. § 3.309(e). 3. Entitlement to service connection for hypertension, to include as due to herbicide exposure As discussed above, the Veteran is presumed to have been exposed to Agent Orange due to his service in Thailand. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The Board notes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include hypertension. However, on November 15, 2018, the National Academies of Sciences, Engineering, and Medicine moved hypertension to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category,” indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicides, including Agent Orange. See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018), http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137 (last visited Nov. 20, 2018). Based on this new finding, the Board finds that there is sufficient scientific evidence to etiologically link the Veteran’s hypertension to his presumed exposure to herbicides while serving in Thailand. As such, the Board has found that all elements of service connection for hypertension are met, and service connection is warranted. 4. Entitlement to service connection for bilateral hearing loss, to include as due to herbicide exposure As discussed above, the Veteran is presumed to have been exposed to Agent Orange due to his service in Thailand. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include hearing loss. Therefore, although the Veteran is presumed to have been exposed to Agent Orange, as hearing loss is not a presumptive disease listed under 38 C.F.R. § 3.309(e), the Veteran’s claim for service connection for hearing loss cannot be granted on a presumptive basis. Turning to whether service connection may be granted on a direct basis, the Veteran contends that his hearing loss is due to being exposed to hazardous noise while serving as an aircraft mechanic in the U.S. Army. The Board concludes that the Veteran has a current disability that is related to exposure to noise while working as an aircraft mechanic in the U.S. Army. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The September 2017 VA examination shows the Veteran has a current diagnosis of bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes VA opinions in May 2008 and September 2017. In May 2008, the VA examiner concluded that it was less likely as not that the Veteran incurred a hearing loss as a result of exposure to noise in the military service. The examiner noted that the Veteran’s April 1969 test results showed a high frequency hearing loss in the right ear. However, the examiner also noted that the Veteran’s April 1971 examination after his military service showed normal hearing in both ears. The examiner was unable to explain the April 1969 test results that showed a high frequency loss in the right ear, and opined that the April 1969 results may have merely showed a temporary shift in hearing. The examiner also stated that the May 2008 examination that was conducted showed a significantly greater hearing loss in the left ear than in the right ear, which is inconsistent with the April 1969 audiological examination. In September 2017, the VA examiner concluded that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner reasoned that the Veteran’s entrance and separation examinations revealed no changes in the Veteran’s hearing. As the May 2008 and September 2017 opinions only addressed a lack of hearing shift in the Veteran’s service treatment records and did not take into account the Veteran’s statements or discuss the effect of his exposure to noise while working on the flight lines as an aircraft mechanic, the Board finds that these opinions are inadequate. The evidence in favor of the claim includes the Veteran’s statements that he has been suffering from symptoms of hearing loss starting in service and continuing to the present day. The Veteran stated that he worked on the flight lines as an aircraft mechanic. The Board notes that these statements are consistent with his DD-214, which states that his military occupational specialty was an aircraft mechanic with the U.S. Army. He has further asserted that, since service, he has not been employed in any occupation that has significantly affected his hearing. As noted in the September 2017 VA examination, the Veteran worked as a shipping and receiving clerk for General Electric for over 30 years, and “the work environment was not noisy.” See September 2017 VA examination, page 5. In weighing the Veteran’s statements, the Board notes that the Veteran is competent to assert the presence of symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also has no reason to doubt the credibility of the Veteran’s statements and as such finds them probative. Given the Veteran’s credible statements of continuing symptoms and the lack of an adequate negative nexus opinion, the Board finds that service connection is warranted. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current hearing loss is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Effective Date 5. Entitlement to an effective date prior to May 21, 2013 for the grant of service connection for tinnitus In assigning effective dates, the general rule is that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. In assigning effective dates for increases, except as provided in paragraph § 3.400(o)(2) and § 3.401(b), the effective date is date of receipt of claim or date entitlement arose, whichever is later. As an exception to this general rule, § 3.400(o)(2) provides that the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise the effective date is the date of claim. Prior to March 24, 2015, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Veteran contends that he is entitled to an effective date earlier than May 21, 2013 for his grant of service connection for tinnitus. The Veteran believes that the effective date of his grant of service connection for tinnitus should be based on his original filing of his claim for tinnitus, which is May 9, 2007. The outcome of this claim falls on the determination of the date the claim was first received and the date entitlement to service connection for tinnitus arose. Whichever is the later of these two dates is the effective date. For purposes of determining the effective date, the date of the Veteran’s claim for service connection for tinnitus was first received is May 21, 2013, when the Veteran requested that his claim for service connection for tinnitus be reopened. While the Veteran contends that that the effective date of his grant of service connection for tinnitus should be based on his original filing of his claim for service connection for tinnitus, which is May 9, 2007, the Board notes that the Veteran’s original claim for service connection for tinnitus in May 9, 2007 was addressed in the May 2008 rating decision that denied the Veteran’s claim for entitlement to service connection for tinnitus. Following the May 2008 rating decision, the Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. Thus, the May 2008 decision regarding the Veteran’s claim for entitlement to service connection for tinnitus was final, and the May 2007 claim was no longer pending. Therefore, the September 2017 rating decision that granted the Veteran’s claim for service connection for tinnitus was based on the Veteran’s May 21, 2013 correspondence to reopen his claim for service connection for tinnitus. As such, for purposes of determining the effective date, the date the Veteran’s claim for tinnitus was first received is May 21, 2013. With respect to the date entitlement to service connection for tinnitus arose, both VA examiners in May 2008 and September 2017 stated that the date of the Veteran’s diagnosis of tinnitus is unknown. However, even assuming entitlement arose prior to May 21, 2013, because the date of claim (May 21, 2013) is the later of the two dates, no earlier effective date is possible. Therefore, the claim for entitlement to an effective date prior to May 21, 2013 for the grant of service connection for tinnitus is denied. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure, is remanded. The Board notes that the Veteran’s VA medical treatment records indicate that the Veteran has an erection problem. As a VA examination has not yet been conducted with respect to this issue, a VA examination is needed to determine the nature and etiology of the Veteran’s claimed erectile dysfunction, to include exposure to herbicides therein. 2. Entitlement to service connection for cataracts, to include as due to herbicide exposure, is remanded. As discussed above, the Veteran is presumed to have been exposed to Agent Orange due to his service in Thailand. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include cataracts. Therefore, although the Veteran is presumed to have been exposed to Agent Orange, as cataracts is not a presumptive disease listed under 38 C.F.R. § 3.309(e), the Veteran’s claim for service connection for cataracts cannot be granted on a presumptive basis. Turning to direct service connection, with respect to cataracts, the Board notes that the Veteran’s medical treatment records indicate that he has a diagnosis of cataracts. As a VA examination has not yet been conducted with respect to this issue, a VA examination is needed to determine the nature and etiology of the Veteran’s cataracts, to include exposure to herbicides therein and whether the Veteran’s cataracts is related to the Veteran’s now service-connected diabetes mellitus, type II. 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, to include as due to herbicide exposure, is remanded. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. 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). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). Early onset peripheral neuropathy is listed as a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure, including peripheral neuropathy. Effective for claims such as this one, VA replaced the term “acute and subacute peripheral neuropathy” with the term “early onset peripheral neuropathy.” See Disease Associated With Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54763 (Sept. 6, 2013). VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient, appear within weeks or months of exposure to an herbicide agent, and resolve within two years of the date of onset. Under the new version of the regulation, early onset peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. Id. At the outset, as discussed above, the Veteran is presumed to have been exposed to Agent Orange due to his service in Thailand. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Although the Veteran is presumed to have been exposed to Agent Orange, the Veteran’s claim for service connection for peripheral neuropathy can only be granted on a presumptive basis if the Veteran’s peripheral neuropathy of the bilateral upper and bilateral lower extremities can be classified as early onset peripheral neuropathy. VA treatment records indicate that the Veteran was not diagnosed with polyneuropathy in March 2013. However, no rationale is provided in the VA treatment records as to whether there was evidence of early onset peripheral neuropathy. Furthermore, as indicated above, the Board has granted the Veteran’s claim for entitlement to service connection for diabetes mellitus, type II. With respect to the Veteran’s peripheral neuropathy, a May 2016 note documenting the Veteran’s medical history indicates that the Veteran has polyneuropathy that is associated with his now service-connected diabetes mellitus, type II. As a VA examination has not yet been conducted regarding the Veteran’s peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, a VA examination should be conducted to determine whether there was evidence of early onset peripheral neuropathy as well as whether the Veteran’s peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities is due to his now service-connected diabetes mellitus, type II. The matters are REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appellant provides the appropriate authorization 2. Then, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of his erectile dysfunction and cataracts. a. With regard to the Veteran’s erectile dysfunction, the examiner must opine whether it is at least as likely as not (fifty percent or greater probability) that his erectile dysfunction is related to in-service herbicide agent exposure or any of his service-connected disabilities. b. With respect to the Veteran’s cataracts, the examiner must opine whether it is at least as likely as not (fifty percent or greater probability) that the Veteran’s cataracts are proximately due to his active service, to include exposure to herbicides therein, and/or if it is at least as likely as not (fifty percent or greater probability) that they were caused or aggravated beyond their natural progression by the Veteran’s service-connected diabetes mellitus, type II. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. a. The examiner should identify whether the Veteran has peripheral neuropathy of the bilateral upper and lower extremities. b. Then, for each extremity for which peripheral neuropathy has been diagnosed, the examiner should opine as to whether it is at least as likely as not (fifty percent or greater probability) that the identified peripheral neuropathy manifested within one year after the date the Veteran was last exposed to herbicides in service. c. Then, for each extremity for which peripheral neuropathy has been diagnosed, the examiner should opine whether it is at least as likely as not (fifty percent or greater probability) that the identified peripheral neuropathy was caused or aggravated beyond its natural progression by the Veteran’s service-connected diabetes mellitus, type II. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel