Citation Nr: 19169289 Decision Date: 09/10/19 Archive Date: 09/06/19 DOCKET NO. 19-02 271 DATE: September 10, 2019 ORDER New and material evidence has been received to reopen the claim for service connection for a heart disability, and to that extent only, the appeal is granted. New and material evidence has been received to reopen the claim for service connection for diabetes, and to that extent only, the appeal is granted. New and material evidence has been received to reopen the claim for service connection for peripheral neuropathy, and to that extent only, the appeal is granted. New and material evidence has been received to reopen the claim for service connection for a skin rash, and to that extent only, the appeal is granted. Service connection for diabetes due to herbicide agent exposure is denied. Service connection for peripheral neuropathy due to herbicide agent exposure is denied. Service connection for rectal carcinoid tumor due to herbicide agent exposure is denied. REMANDED Service connection for a heart disability is remanded. Service connection for skin rash is remanded. FINDINGS OF FACT 1. In February 2007 and April 2012 rating decisions, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a heart disability, diabetes, peripheral neuropathy, and skin rash; the Veteran did not appeal the decisions and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the February 2007 and April 2012 rating decisions relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a heart disability, diabetes, peripheral neuropathy, and skin rash. 3. The Veteran was not exposed to herbicide agents during military service. 4. The competent, probative evidence of record is against finding that the Veteran’s diabetes is due to military service. 5. The competent, probative evidence of record is against finding that the Veteran’s peripheral neuropathy is due to military service. 6. The competent, probative evidence of record is against finding that the Veteran’s rectal carcinoid tumor is due to military service. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim seeking service connection for a heart disability is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2018). 2. New and material evidence has been received and the claim seeking service connection for diabetes is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2018). 3. New and material evidence has been received and the claim seeking service connection for peripheral neuropathy is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2018). 4. New and material evidence has been received and the claim seeking service connection for skin rash is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2018). 5. The criteria for service connection for diabetes due to herbicide agent exposure have not been satisfied. 38 U.S.C. §§ 1110, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 6. The criteria for service connection for peripheral neuropathy due to herbicide agent exposure have not been satisfied. 38 U.S.C. §§ 1110, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 7. The criteria for service connection for rectal carcinoid tumor due to herbicide agent exposure have not been satisfied. 38 U.S.C. §§ 1110, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to September 1995. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 RO rating decision. The Veteran has not been afforded a VA examination in connection with his service connection claim for diabetes or rectal carcinoid tumor. Generally, a VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As discussed further below, there is no competent evidence that the Veteran has rectal carcinoid tumor or diabetes related to his active service. As such, the Board of Veterans’ Appeals (Board) finds that a VA examination is not necessary to decide the claims. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); see also McLendon, 20 Vet. App. at 79. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. 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. 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. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for a heart disability, diabetes, and peripheral neuropathy in an April 2012 rating decision, and for skin rash in a February 2007 rating decision, finding that the Veteran was not exposed to herbicide agents during military service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decisions are final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2012). The evidence received since the February 2007 and April 2012 rating decisions includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, lay evidence and statements to show that the Veteran was exposed to herbicide agents during service. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Service Connection Diabetes, Peripheral Neuropathy, and Rectal Carcinoid Tumor. The Veteran contends his heart disability, diabetes, peripheral neuropathy, tumor, and skin rash are due to herbicide agent exposure during military service. Specifically, the Veteran contends he was exposed to herbicide agents during service in Thailand. Federal regulations provide presumptive service connection on the basis of herbicide agent exposure in service for enumerated diseases manifested to a degree of 10 percent or more within a specified time period. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Herbicide agents are defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and Picloram. 38 C.F.R. § 3.307(a)(6). If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops certain disabilities, to include ischemic heart disease, diabetes mellitus, and early-onset peripheral neuropathy, during certain time periods, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA regulations do not presume “herbicide agent” - as VA defines that term in 38 C.F.R. § 3.307(a)(6)(i) - exposure for veterans who served in Thailand. However, VA has adopted a procedure for verifying exposure to herbicide agents in Thailand during the Vietnam Era. VA Compensation Service has acknowledged that there is ‘some evidence that 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.’” Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). The VA Adjudication Manual (M21-1) explains that the Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force Bases (RTAFBs), to include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. M21-1, Part IV, Subpart ii.1.H.5.a (accessed August 23, 2019). The M21-1 directs that herbicide exposure may be conceded on a facts-found basis if a veteran served on one of the listed RTAFBs during the Vietnam Era if the veteran served as a security policeman, security dog handler, member of the security police squadron, or otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Id. The M21-1 provides that if a veteran served on a U.S. Army Base in Thailand during the Vietnam era, and served as a member of the military police (MP) or was assigned an MP occupational specialty whose duties placed him at or near the base perimeter, then he may be presumed to have been exposed to herbicides. M21-1 Part IV, Subpart ii, 1.H.5.b (accessed August 23, 2019). The M21-1 is not binding on the Board. 38 C.F.R. § 20.105. However, in this case the Board finds that reliance on the M21-1 provisions is appropriate as these provisions are based on review by VA’s Compensation and Pension Service of a declassified Vietnam era Department of Defense document titled Project CHECO Southwest Asia Report: Base Defense in Thailand, which indicated herbicides were used for weed control in Thailand. See Rescinded VA Compensation Service Bulletin 2010 - (05) May; see also Overton v. Wilkie, 30 Vet. App. 257 (2018). Essentially, the M21-1 provisions are based on information from a credible source on the use of herbicides in Thailand which is probative as to determining the conditions of service which could have exposed a veteran to tactical herbicides while serving in Thailand. The Veteran reports he was stationed in Thailand from the end of October or early November 1973 to October 1974 at the 7th Radio Research Field Station (RRFS), which he reports was a small Army base in Ramasun, Thailand, just outside of Udorn, Thailand. He states that he was a teletypewriter repairman and he maintained the machines in the communications department located in the middle of the antenna field on the base. He contends he was exposed to herbicide agents because he walked from the main part of the base to the antenna field and the area surrounding his building had to be kept clear of all vegetation. He asserts he was on guard duty outside of the operations building because it was considered a highly secured area. The Veteran asserts the mess halls, barracks, and showers were on the main part of the base and within 100 feet of the perimeter of the north end of the base and that because of this close proximity he was both on and near the perimeter on a regular basis. He asserts he would have to pass through the main gate when entering and leaving the base. The Veteran asserts any area where he worked, lived, or traveled through is an area that could have exposed anyone to herbicides. He asserts it was common for himself, or anyone else, to walk to the perimeter area; he states it was common to jog right next to the perimeter line as it was not advisable to go jogging off base. See May 2015 Statement. The Board notes that in April 2011 the Veteran asserted that he had exposure and contact to the areas which were sprayed with Agent Orange chemicals while serving on and around the Udorn Air Force Base and the Army Security Agency site in Ramasun, Thailand. Service records reflect the Veteran was stationed at the 7th RFFS in Thailand from November 1973 to October 1974 as a teletypewriter repairman. The Veteran’s service treatment records include no complaints of, treatment for, or diagnoses of rectal carcinoid tumor, diabetes mellitus, peripheral neuropathy, or heart problems. To support his case the Veteran submitted copies of portions of the M21-1 Manual, a January 2015 email that indicates that the Armed Forces Pest Management Board does not hold records showing which units ordered herbicides and in what quantities during the Vietnam War era, a June 2005 Air Force Memorandum concerning the dates and locations of Operation Ranch Hand activities based in Thailand during the Vietnam War era, maps of Udorn and the Royal Thai Air Force Base at Udorn, a February 2014 Department of Defense memorandum regarding the use of herbicides at Korat Royal Thai Air Force Base, and US Army Field manuals and reports and commercial herbicides available in the Federal Supply System for military usage (See March 2016 Attorney’s Brief). The Board has considered the entirety of the evidence in the file, to include the lay statements, maps, manuals, reports, and other lay evidence documenting his service in Thailand. Evidence relevant to the Veteran’s service was of record during RO development, and in March 2012 VA made a formal finding that sufficient information required to verify herbicide exposure does not exist. Specifically, the Memorandum for the Record indicated that the evidence of record does not establish exposure to Agent Orange for the Veteran. The memorandum notes that if a Veteran’s military occupational specialty or unit was one that had regular contact with the base perimeter there was a greater likelihood of exposure, but those positions were likely for security police and personnel, and dog handlers, or evidence otherwise showing service near the base perimeter. The memorandum reflects the requests for information obtained which did not show service in the Republic of Vietnam or a record of exposure to herbicides, and that personnel records and service treatment records do not contain any evidence that can verify herbicide exposure. The Veteran has argued that he served on and around Udorn and Udorn Air Force Base; however, there is no evidence to suggest that he had service at any of the specified RTAFBs, as opposed to the 7th RFFS. The Board notes that the occupational specialties listed as having presumed exposure to herbicides in Thailand were those service members whose duties included actually walking the perimeter of the airbases. The Veteran’s personnel records and descriptions of his duties do not confirm that he was frequently in close proximity to the perimeter of any of the specified RTAFBs. None of his service or personnel records or maps places him on or near the perimeter of the specified RTAFBs. As a result, the Board cannot concede exposure to herbicides on account of his duty at the 7th RFFS as a teletypewriter repairman. The evidence of record fails to show the Veteran was exposed to herbicide agents while serving in Thailand. The Board has considered the Veteran’s assertions regarding his duties and military service at the 7th RFFS; however, the evidence of record does not support he had exposure to herbicide agents, including exposure from being on or near the base perimeter during military service in Thailand. The Board acknowledges the considerable evidence presented in support of his claim but does not find there is credible evidence of record to support finding the Veteran was exposed to herbicide agents during military service. The Veteran worked as a teletypewriter repairman and, in that position, there is no evidence that his duties would have put him in close proximity to the field station perimeter. In fact, he stated that the communications department where he worked was located in the middle of the antenna field on base. The Board acknowledges the Veteran’s statements that he was on guard duty outside of the operations building, which was clear of vegetation, and that the mess halls, barracks, and showers were on the main part of the base within close proximity of the base perimeter, and his assertions that it was common to walk to the base perimeter, however, this is not documented in the record outside of his lay statements. While the Veteran is competent to attest to the circumstance of his military service, the Board does not find credible evidence to find that the Veteran had was on or near the base perimeter of the 7th RFFS to concede exposure to herbicide agents. In light of his statements in this case, and upon review of his records, the Board finds that the weight of the credible evidence is against finding that he was exposed to herbicide agents while stationed in Thailand. The evidence presented supports that herbicides were used in Thailand, but in this case the evidence does not support that the Veteran was exposed to herbicide agents. The Board notes, notwithstanding the foregoing presumptive provisions, that the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 1044 (Fed. Cir. 1994). To establish a right to compensation for a present disability, a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There is no evidence of a continuity of symptomatology of symptoms from service. The Veteran does not contend, and the medical evidence does not indicate, ongoing problems from service and the Veteran did not seek treatment based on symptoms related to any of the above claimed disabilities until years after separation from service. With respect to the claim for peripheral neuropathy, the record reflects the Veteran is service connected for lumbar radiculopathy secondary to his back disability. During the March 2004 peripheral nerves examination, the Veteran complained of back pain radiating into his legs. The examiner diagnosed lumbar spondylosis and reported the back disability was related to military service. The Veteran underwent VA examination in January 2016. The examiner diagnosed peripheral neuropathy secondary to lumbar degenerative joint disease (lumbar radiculopathy). The Veteran asserted he has radiating pain in the legs associated with back pain and that he has numbness and tingling sensation in the feet up to his toes associated with burning pains on his feet. The examiner stated the Veteran’s complaints of pain, numbness and tingling on both of his feet is suggestive of sensory diabetic peripheral neuropathy affecting the sciatic nerve. She reported monofilament testing revealed intact sensory examination as well as vibration sense, but it is clear based on his symptoms that he has significant lower extremity pain in both legs which the Veteran states comes from his lower back condition which confirms his bilateral lumbar radiculopathy. The evidence of records does not reflect the Veteran has a separate peripheral neuropathy disability related to military service. The Board notes that the Veteran asserted that his rectal carcinoid tumor is related to Agent Orange exposure and trichlorethylene. See May 2015 Statement. The Veteran is not competent to opine as to the etiology of a tumor or its relationship to trichlorethylene, and the evidence of record does not support that the Veteran’s tumor is due to trichlorethylene. In summary, while some of the claimed disabilities would warrant a regulatory presumption of service connection as a result of in-service herbicide agent exposure, this is not applicable to the Veteran’s claims as herbicide agent exposure is not conceded. The Veteran did not have service at one of the specified Royal Thai Air Force Bases and the credible evidence of record does not support that he was otherwise on or near a base perimeter to concede herbicide agent exposure, or that the evidence shows direct exposure to herbicide agents. As such, service connection is not warranted for these claims. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims that doctrine is not applicable and service connection for diabetes, peripheral neuropathy, and rectal carcinoid tumor must be denied. REASONS FOR REMAND Skin rash and Heart disability. The Veteran contends his heart disability and skin rash are due to military service. Service treatment records reflect the Veteran was treated for skin rash and high cholesterol, and the Veteran reported he had a skin rash during military service. Private treatment records reflect that in June 2006 the Veteran had a skin rash on his upper extremity, back and chest and he reported the skin rash had been recurrent since the 1970s from his time in Thailand. In July 2006 the Veteran’s private physician reported that the Veteran developed unstable angina in June 2005 leading to subsequent coronary grafting later that month. He reported that with respect to the suspected mechanisms of the Veteran’s coronary artery disease, it is most likely that the Veteran’s diabetes mellitus and dyslipidemia were the primary causes of his ischemic heart disease and that his coronary artery disease developed over many years, perhaps decades. A VA medical opinion has not been obtained in connection with the Veteran’s service connection claims for skin rash and heart disability. Accordingly, remand is warranted for a medical opinion to address the etiology of the Veteran’s disabilities. The matters are REMANDED for the following actions: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning skin and heart disabilities. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s skin and heart disorders, not already of record, for the period from June 2019. 3. The claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current skin rash is related to an in-service injury, event, or disease. The examiner is asked to consider the Veteran’s June 2006 treatment records that reflect treatment for a skin rash on the upper extremity, back and chest, and the Veteran’s contentions the he has had recurrent skin rash since his military service in Thailand. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 4. The claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current heart disability is related to an in-service injury, event, or disease. The examiner is asked to address the Veteran’s in-service high cholesterol treatment and the July 2006 letter from the Veteran’s private physician regarding the onset of his heart disability. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 5. Then, readjudicate the issues of service connection for skin and heart disorders. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. E. Blowers Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Gonzalez, 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.