Citation Nr: 19147535 Decision Date: 06/18/19 Archive Date: 06/18/19 DOCKET NO. 18-19 505 DATE: June 18, 2019 ISSUES 1. Entitlement to service connection for diabetes mellitus (type II), to include as due to herbicide exposure. 2. Entitlement to service connection for Parkinson’s Disease, to include as due to herbicide exposure. 3. Entitlement to service connection for diabetic neuropathy of the left lower extremity, to include as due to diabetes mellitus. 4. Entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease. REMANDED Entitlement to service connection for diabetes mellitus (type II), to include as due to herbicide exposure is remanded. Entitlement to service connection for Parkinson's Disease, to include as due to herbicide exposure is remanded. Entitlement to service connection for diabetic neuropathy of the left lower extremity, to include as due to diabetes mellitus is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease is remanded. REASONS FOR REMAND The Veteran served in the Air Force from November 1969 to November 1993. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board has reviewed the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. 1. Entitlement to service connection for diabetes mellitus (type II), to include as due to herbicide exposure, and entitlement to service connection for Parkinson’s Disease, to include as due to herbicide exposure are remanded. The Veteran and his Representative’s primary contention is that the Veteran is entitled to a presumption of service connection because of toxic herbicide exposure in service. Specifically, while the Veteran did not serve in the Republic of Vietnam, he argues that his service at the Nakhon Phanom Air Force Base in Thailand, coupled with his Military Occupational Specialty (MOS) regularly placed him in contact with C-123 aircraft, where he was exposed to toxic herbicides. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection can also be established on a presumptive basis for certain diseases associated with in-service exposure to toxic herbicides. See 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. Diabetes mellitus (type II) and Parkinson’s Disease are such diseases. 38 C.F.R. § 3.309 (e). Presumptive service connection for diabetes mellitus (type II) and/or Parkinson’s Disease as a result of toxic herbicide exposure are warranted if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, which include a presumption of exposure to herbicides for Veterans with service in the Republic of Vietnam during specific time periods. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). 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. The current version of M21-1, Part IV., Subpart ii., Chapter 1., Section H., Topic 5., paragraph b., provides that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by the Veteran’s military occupational specialty (MOS), performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309 (e). The Board further recognizes that the M21-1MR, Part IV., Subpart ii., Chapter 2., Section C., states that “the high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying C-123 aircraft that sprayed tactical herbicides over Vietnam during Operation Ranch Hand.” As noted, the Veteran did not serve, nor does he contend to have served, in the Republic of Vietnam. The Veteran’s Military Personnel Record (MPR) however, confirms that the Veteran served in Thailand from approximately December 1971 to January 1973. Those same records also indicate that the Veteran was stationed at the Nakhon Phanom (NKP) Air Force Base in Thailand and held the MOS of Aircraft Fuel System Mechanic. Thus, the Veteran served at a U.S. Air Force Base in Thailand that is covered by the presumption for service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309 (e). Therefore, analysis turns to the Veteran’s MOS, and if herbicide exposure should be conceded on a facts-found basis or direct basis. The Veteran’s claims file includes a statement from June 2015. In this statement, the Veteran contends that “I was an aircraft mechanic and performed maintenance on the C-123. This is the aircraft that dispensed agent orange and which [VA] recognize as being contaminated by the defoliant.” The Veteran’s Notice of Disagreement from June 2015 makes similar claims. The Veteran also submitted a statement from April 2015. In addition to similar claims made about the Veteran’s MOS, he writes that The aircraft I worked on were the C-123 that flew from NKP to Vietnam to drop or spray agent orange. When the [aircraft] returned I performed fuel tank maintenance inside fuel tanks outer wing areas, top and bottom. The sprayer was visible, and the agent orange can be seen … all fuel tanks were stored near the perimeter fence … we had to do [tour of duty] walks near the perimeter fence being exposed to agent orange. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). The Veteran’s Military Personnel Records confirm that while the Veteran was stationed at NKP, he worked as an Aircraft Fuel System Mechanic. The duties are listed as follows Inspects fuel system for defects, repairs leaks on C-130, QU-22, OV-10, HH-53, CH-53, C-119, EC-47, CH-43, and transient aircraft. Repairs and replaces components on drop tanks, and maintains assigned equipment. The Veteran’s claims file also includes a commendation medal from the Air Force. The commendation states that the Veteran’s “professional skill, knowledge, and leadership aided significantly in identifying and solving maintenance problems within the Fuels Shop and squadron.” His records also list the Veteran as a “true specialist in his field.” Given this information, the Board needs more information to decide the claims of entitlement to service connection for Parkinson’s Disease and diabetes mellitus (type II), both claimed as due to herbicide exposure. While the Veteran’s Military Personnel Records do not indicate that he worked on the C-123, the aircraft that VA has conceded was primarily used for agent orange dispersal, those records do indicate that the Veteran worked on other “transient aircraft.” The Veteran’s record does not currently include a request to the Joint Services Records Research Center (JSRRC), to assess if it is as likely as not that the Veteran may have worked on the C-123 while stationed at NKP. Furthermore, the Veteran has indicated that the external storage tanks were placed by the perimeter of NKP, which could mean that his MOS routinely sent him along the air base perimeter. On remand, this inquiry should also be sent to the JSRRC. Therefore, the Board remands this matter and directs the RO to send a request to the JSRRC for consideration of the Veteran’s full assertions as to his experiences in service, to include the nature of his MOS while in Thailand, including alleged exposure to toxic herbicides due to working on any C-123 aircraft, as well as interacting with fuel tanks which may have been stored along the perimeter of the NKP Air Force Base. 2. Entitlement to service connection for diabetic neuropathy of the left lower extremity, to include as due to diabetes mellitus is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran is claiming that his diabetic neuropathy of the left lower extremity is secondary to his diabetes mellitus (type II). As noted above, the Veteran has contended that his diabetes mellitus (type II), is due to his exposure to herbicides while stationed in Thailand. Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). As the outcome of the claim for entitlement to service connection for diabetic neuropathy of the left lower extremity could be affected by the results of the remand for the service connection claim of diabetes mellitus (type II), it is inextricably intertwined. See, Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, remand is also warranted with regard to the issue of entitlement to service connection for diabetic neuropathy of the left lower extremity, to include as due to diabetes mellitus. 3. Entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease is remanded. The Veteran is claiming that his service-connected coronary artery disease is worse than is currently rated. Specifically, the Veteran wrote in his Form 9 from April 2018, that the RO’s “assessment of condition severity was not correct. I believe condition as worse than indicated in decision.” The Veteran is currently service connected for his coronary artery disease at a 30 percent disability rating, effective March 2011. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See, 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran’s coronary artery disease is evaluated under Diagnostic Code 7005 of the rating schedule. 38 C.F.R. § 4.104. Under Diagnostic Code 7005, a 10 percent rating requires a workload of greater than 7 METs, but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating requires a workload of greater than 5 METs, but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating requires more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs, but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent to 50 percent. Finally, a 100 percent rating requires chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Additional evidentiary development is required before the Board may address the merits of the Veteran’s claim. As noted, the Veteran contends that his current coronary artery disease is worse than is currently rated. The Veteran’s claims file includes medical evidence from the Houston Heart Institute from December 2011, a VA examination from February 2012, and a brief medical note from Cardiac Consultants from November 2013. As it has been years since the Veteran’s most recent evaluation, and since he contends that it has gotten worse, a new examination is necessary to assess the current severity of the Veteran’s coronary artery disease. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his coronary artery disease. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). The matters are REMANDED for the following action: 1. Contact the Joint Services Records Research Center, and any other appropriate source and request that they determine if it is as likely as not that a Veteran, who worked as an Aircraft Fuel System Mechanic at the Nakhon Phanom Air Force Base in Thailand from approximately December 1971 to January 1973, would have been exposed to Agent Orange, either because: (a.) he conducted aircraft maintenance on the C-123 as a “transient aircraft,” and/or (b.) the Veteran worked on the C-123, yet it was not included in his Military Personnel Records, and/or (c.) fuel tanks were stored along the NKP base perimeter, and thus the Veteran’s MOS would have routinely placed him along that base perimeter. Any response received must be documented in the record. 2. After completing any further development deemed necessary, readjudicate the claims of entitlement to service connection for Parkinson’s Disease, to include as due to agent orange exposure, as well as service connection for diabetes mellitus (type II), to include as due to agent orange exposure. 3. Only after completing Steps 1 and 2, and ensuring that any other appropriate development of that claim is complete, readjudicate the Veteran’s claim of entitlement to service connection for diabetic neuropathy of the left lower extremity, to include as due to diabetes mellitus. 4. Schedule the Veteran for a cardiovascular examination to determine the severity of his service-connected coronary artery disease. The claims folder must be made available to the examiner. All necessary tests and studies should be performed, to include the appropriate exercise test(s) needed to properly calculate the Veteran’s heart workload measured in METs. If a laboratory determination of METs by exercise testing cannot be done for medical reasons, the examiner should estimate the level of activity. This should be expressed in METs, and supported by specific examples, such as slow stair climbing that results in dyspnea, fatigue, angina, dizziness, or syncope. All findings should be reported in detail and a complete rationale provided for each opinion. 5. After completing any further development deemed necessary, readjudicate the remaining claims. If any benefit on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and allow an appropriate time for response. Thereafter, the case should be returned to the Board, if otherwise in order. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.