Citation Nr: 20001351 Decision Date: 01/09/20 Archive Date: 01/08/20 DOCKET NO. 15-18 702A DATE: January 9, 2020 ORDER Service connection for diabetes mellitus, type II, claimed as due to herbicide exposure, is granted. REMANDED The claim of entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus and/or due to herbicide exposure, is remanded. The claim of entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus and/or due to herbicide exposure, is remanded. The claim of entitlement to service connection for a skin disorder, claimed as secondary to diabetes mellitus and/or due to herbicide exposure, is remanded. The claim of entitlement to service connection for neuropathy, claimed as secondary to diabetes mellitus and/or due to herbicide exposure, is remanded. FINDING OF FACT 1. The Veteran’s service personnel records show that he was stationed on the U.S.S. Reaper from November 1963 to August 1966 and deck logs show that the U.S.S. Reaper was anchored off of Vung Tau, a port within the offshore waters of Vietnam, in May 1965. As such, herbicide exposure in his case is established. 2. The medical evidence establishes that the Veteran was diagnosed with diabetes mellitus, type II as early as October 2001. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, as presumed related to active military service, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1961 to March 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from April 2013 and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona which, in part, denied service connection for diabetes mellitus, hypertension, erectile dysfunction, a skin disorder, and neuropathy. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in May 2019. A transcript of this proceeding has been associated with the claims file. 1. Service connection for diabetes mellitus, type II, claimed as due to herbicide exposure, is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The governing law provides that a “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent... unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f). Congress very recently enacted legislation entitled the Blue Water Navy Vietnam Veterans Act of 2019. 116 P.L. 23, 133 Stat. 966 (2019). This legislation became effective January 1, 2020. Pursuant to this legislation, for the purposes of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term “Service in the Republic of Vietnam” includes service on the landmass, inland waterways, and off shore waters, which includes the territorial sea extending 12 nautical miles from the shores of that nation. VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several disorders, to include diabetes mellitus, type II. 38 C.F.R. § 3.309(e). The Veteran contends that his diabetes mellitus is related to his service with the United States Navy from December 1961 to March 1967. Specifically, he contends that he set physically set foot in Vietnam on two occasions during his military service, first in April 1965 when he went ashore as an armed guard on a motorboat with a landing party, and again in May 1965 when he spent the day on Vung Tau. In this case, the Veteran’s private treatment records show a diagnosis of diabetes mellitus as early as October 2001. He filed a claim for service connection for diabetes mellitus in February 2011. The Veteran’s service personnel records show that he was stationed on the U.S.S. Reaper from November 1963 to August 1966 and deck logs show that the U.S.S. Reaper was anchored off of Vung Tau, a port in Vietnam, in May 1965. The Board finds that such is evidence that the Veteran had service in the territorial sea extending 12 nautical miles from the shores of Vietnam. As such, herbicide exposure in his case is established, and the Veteran is entitled to service connection for diabetes mellitus on a presumptive basis. REASONS FOR REMAND 2. The claim of entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus and/or due to herbicide exposure is remanded. With regard to the hypertension issue, the Board notes that service treatment records are negative for an indication of hypertension. Significantly, the Veteran’s March 1967 separation examination shows a normal heart and a blood pressure reading of 110/80. The earliest indication of hypertension is a January 2004 private treatment record noting a history of hypertension. The Veteran contends that his hypertension may be related to his now presumed in-service herbicide exposure and/or secondary to his newly service-connected diabetes mellitus. Significantly, although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e), in November 2018, the National Academy of Sciences upgraded the relationship between hypertension and herbicide exposure from “limited or suggestive” to “sufficient,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). https://www.nap.edu/read/25137/chapter/12 (last accessed January 2020). Unfortunately, a medical opinion has not been obtained for the purpose of determining whether any diagnosis of hypertension can be related to his military service. The Veteran’s statements concerning a possible relationship between his diagnosed hypertension and his presumed in-service exposure to herbicides and/or his newly service-connected diabetes mellitus are sufficient to trigger the duty on the part of VA to provide a medical opinion as to this claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Therefore, a medical opinion should be obtained so as to determine the etiology of the Veteran’s hypertension. 3. The claim of entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus and/or due to herbicide exposure is remanded. With regard to the erectile dysfunction issue, the Board notes that service treatment records are negative for an indication of erectile dysfunction. Significantly, the Veteran’s March 1967 separation examination shows a normal genitourinary system. The earliest indication of erectile dysfunction is the Veteran’s November 2015 statement wherein he noted that he was treated for erectile dysfunction once in Bullhead City, Arizona with testosterone shots. The Veteran contends that his erectile dysfunction may be related to his now presumed in-service herbicide exposure, secondary to medications used to treat a service-connected disability, and/or secondary to his newly service-connected diabetes mellitus. A review of the claims file is negative for an actual diagnosis of erectile dysfunction. However, given the Veteran’s newly presumed in-service herbicide exposure and newly service-connected diabetes mellitus, pursuant to McLendon, the Board finds that a VA examination is warranted to determine whether the Veteran has an actual diagnosis of erectile dysfunction and, if so, whether it is related to the Veteran’s military service and/or a service-connected disability. 4. The claim of entitlement to service connection for a skin disorder, claimed as secondary to diabetes mellitus and/or due to herbicide exposure is remanded. With regard to the skin issue, the Board notes that service treatment records are negative for an indication of a skin disorder. Significantly, the Veteran’s March 1967 separation examination shows normal skin. The earliest indication of skin problems is a November 2000 private treatment record showing a boil on the groin. A February 2001 record shows treatment for a scrotal abscess (cyst), a December 2001 record shows treatment for an abscess on the back, and a September 2015 record shows a diagnosis of seborrheic dermatitis. In the Veteran’s November 2015 statement, he noted that he had had multiple cysts removed and also had oily skin. The Veteran contends that his skin disorder may be related to his now presumed in-service herbicide exposure and/or secondary to his newly service-connected diabetes mellitus. Given the Veteran’s newly presumed in-service herbicide exposure and newly service-connected diabetes mellitus, pursuant to McLendon, the Board finds that a VA examination is warranted to determine whether the Veteran has a current skin disorder and, if so, whether it is related to the Veteran’s military service and/or a service-connected disability. 5. The claim of entitlement to service connection for neuropathy, claimed as secondary to diabetes mellitus and/or due to herbicide exposure is remanded. With regard to the neuropathy issue, the Board notes that service treatment records are negative for an indication of neuropathy. Significantly, the Veteran’s March 1967 separation examination shows normal upper and lower extremities. The earliest indication of neuropathy is an April 2015 VA treatment record showing a history of neuropathy. In the Veteran’s November 2015 statement, he noted that he had neuropathy in his lower legs and feet and had been give special stockings and shoes to use. The Veteran contends that his neuropathy may be related to his now presumed in-service herbicide exposure and/or secondary to his newly service-connected diabetes mellitus. Given the Veteran’s newly presumed in-service herbicide exposure and newly service-connected diabetes mellitus, pursuant to McLendon, the Board finds that a VA examination is warranted to determine whether the Veteran has a current diagnosis of neuropathy and, if so, whether it is related to the Veteran’s military service and/or a service-connected disability. Finally, with regard to all of the remanded issues, the Board notes that there are likely outstanding VA treatment records as the most recent VA medical records in the claims file are dated in September 2017. Therefore, all outstanding VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated since September 2017. 2. Schedule the Veteran for appropriate VA examinations for evaluation of his hypertension, erectile dysfunction, skin disorder, and neuropathy. Based on the examination and review of the record, the examiner should: (A) Determine whether there are current diagnoses of hypertension, erectile dysfunction, skin disorder, and/or neuropathy found to be present during the appeal period beginning November 2015. (B) For each diagnosed disorder, the examiner should offer an opinion as to whether it is at least as likely not (50 percent probability or greater) that such disorder is caused by or is otherwise related to the Veteran’s active duty service, to include his presumed herbicide exposure. (C) For each diagnosed disorder, the examiner should offer an opinion as to whether it is at least as likely not (50 percent probability or greater) that such disorder is (i.) caused or (ii.) aggravated by the Veteran’s newly service-connected diabetes mellitus. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. With regard to the claimed hypertension, attention is invited to the Veteran’s March 1967 separation examination showing a normal heart and a blood pressure reading of 110/80 and a January 2004 private treatment record noting a history of hypertension. See VBMS, documents labeled STR – Medical, receipt date 5/24/2011, page 30 and Medical Treatment Record – Non-Government Facility, receipt date 11/30/2015, page 12. Attention is also directed to the Veteran’s presumed exposure to herbicides during his military service, as well as the latest findings from the National Academies of the Sciences updates to Agent Orange, as the Academy has concluded that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. With regard to the claimed erectile dysfunction, attention is invited to the Veteran’s March 1967 separation examination which shows a normal genitourinary system and the Veteran’s November 2015 statement wherein he noted that he was treated for erectile dysfunction once in Bullhead City, Arizona with testosterone shots. See VBMS, documents labeled STR – Medical, receipt date 5/24/2011, page 29 and VA-21526b, Veteran Supplemental Claim, receipt date 11/16/2015, page 2. With regard to the claimed skin disorder, attention is invited to the Veteran’s March 1967 separation examination which shows normal skin; a November 2000 private treatment record showing a boil on the groin; a February 2001 record showing treatment for a scrotal abscess (cyst); a December 2001 record showing treatment for an abscess on the back; a September 2015 record showing a diagnosis of seborrheic dermatitis, and the Veteran’s November 2015 statement wherein he noted that he had had multiple cysts removed and also had oily skin. See VBMS, documents labeled STR – Medical, receipt date 5/24/2011, page 29; Medical Treatment Record – Non-Government Facility, receipt date 11/30/2015, pages 61 and 39; Third Party Correspondence, receipt date 2/7/2001, page 1; Medical Treatment Record – Non-Government Facility, receipt date 11/25/2015, page 8; and VA-21526b, Veteran Supplemental Claim, receipt date 11/16/2015, page 2. With regard to the claimed neuropathy, attention is invited to the Veteran’s March 1967 separation examination which shows normal upper and lower extremities; an April 2015 VA treatment record showing a history of neuropathy; and the Veteran’s November 2015 statement, he noted that he had neuropathy in his lower legs and feet and had been give special stockings and shoes to use. See VBMS, documents labeled STR – Medical, receipt date 5/24/2011, page 29; CAPRI, receipt date 3/13/2016, page 31; VA-21526b, Veteran Supplemental Claim, receipt date 11/16/2015, page 2. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorders and service, including his exposure to herbicides. Likewise, the mere fact that a presumption has not been established for any particular disorder at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.