Citation Nr: 20003303 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 12-07 802 DATE: January 14, 2020 ORDER 1. Service connection for diabetes mellitus, to include as due to exposure to herbicide agents, is granted. 2. Service connection for obstructive sleep apnea is denied. 3. Service connection for a back condition is denied. 4. Service connection for an eye condition is denied. REMANDED 1. Service connection for hypertension, as secondary to diabetes mellitus, is remanded. 2. Service connection for erectile dysfunction, as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus and has provided competent and credible statements and testimony that he operated near the Korean Demilitarized Zone (DMZ) while transporting military supplies. Accordingly, herbicide exposure is presumed and service connection for diabetes mellitus is warranted on a presumptive basis. 2. A September 2019 VA examination indicated that the Veteran did not have a diagnosis of obstructive sleep apnea. 3. A September 2019 VA examiner opined that the Veteran’s back condition was less likely than not caused by asbestos exposure during service. The examiner concluded that the Veteran’s back condition was a consequence of aging. 4. A September 2019 VA examiner opined that the Veteran’s eye condition was less likely than not caused by asbestos exposure during service. The examiner explained that there is no scientific literature that supports the concept that refractive errors are related to exposure to asbestos. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes due to in-service herbicide agent exposure have been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309. 2. The criteria for service connection for obstructive sleep apnea have not been met. 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for service connection for a back condition have not been met. 38 C.F.R. §§ 3.102, 3.303, 3.385. 4. The criteria for service connection for an eye condition have not been met. 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the military from September 1966 to September 1969. This matter is before the Board of Veterans Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. These matters were previously before the Board in April 2017 and were remanded for further development. Service Connection Legal Criteria Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 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. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). “Secondary” service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicide agents are known to have been applied during that period, 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. See also 38 C.F.R. § 3.814 (c)(2). The 2nd infantry division, 5th battalion, 38th artillery was one of the specific units identified by the DoD that served in areas along the DMZ in Korea between the dates above. 74 Fed. Reg. 36642 (July 7, 2009). Certain diseases associated with exposure to certain herbicide agents (for example, “Agent Orange” will be presumed to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). Diabetes mellitus is associated with herbicide agent exposure for purposes of the presumption. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309(e). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which the case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Service connection for diabetes mellitus, to include as due to exposure to herbicide agents, is granted. Factual Background The Veteran is claiming service connection for diabetes mellitus due to herbicide agent exposure. The Veteran’s service records indicate service in Korea. The Veteran’s medical records indicate that he has a diagnosis of diabetes mellitus. The Veteran reported in June 2011 correspondence that, as a repair parts specialist, he transported Army inventory to and from and around supply depots and missile sites in Seoul, Osan, Camp Humphries and Camp Casey in South Korea in 1967 and 1968. The Veteran explained that some of the inventory being transported was radioactive and that his superiors indicated that he was hauling biohazard chemicals that were being used in Vietnam. The Veteran provided a June 2011 buddy statement from [REDACTED] who served with the Veteran in Korea. Mr. [REDACTED] corroborated the Veteran’s statement and indicated that he was involved in transporting Army inventory to and from and around supply depots and missile sites to and from and around supply depots in Seoul, Osan, Camp Humphries and Camp Casey in South Korea in 1967 and 1968. According to a review of the 1968 unit history submitted by the 55th Maintenance Battalion and the 1968 chronology submitted by the 8th United States Army, the Veteran’s 65th Ordnance Company (65th Ord Co) was assigned to the 55th Maintenance Battalion and the main camp location was Camp Humphreys, Korea. See Defense Personnel Records Information Retrieval System (DPRIS) report. The records do not document the use, storage, spraying or transportation of herbicides. In addition, the company’s records do not mention or document any specific duties performed by the 65th Ord Co unit members along the Korean DMZ. Analysis The Board finds that the Veteran is competent to report his experience in service and credible regarding his statements about working on and near the Korean DMZ. While the DPRIS report indicates that there was no documentation of the 65th Ord Co using herbicides or performing specific duties near the Korean DMZ, it does not contemplate that the Veteran left his unit to make deliveries to and from and around supply depots and missile sites in Seoul, Osan, Camp Humphries and Camp Casey. As such, the Board finds that he was exposed to herbicide agents in service on a facts-found basis. Because the Veteran was presumed exposed to herbicides in service and has a disease presumptively associated with herbicide exposure, service connection for diabetes mellitus is warranted. 2. Service connection for obstructive sleep apnea is denied. Factual Background The Veteran was afforded a VA examination in September 2019 at which the conducting physician concluded that the Veteran did not have obstructive sleep apnea. The physician explained that the Veteran had no diagnosis of sleep apnea in his medical records and also had no findings, signs or symptoms attributable to sleep apnea. The physician stated that the Veteran does not require the use of a breathing assistance device or of a continuous positive airway pressure machine. Analysis The first element of service connection is to determine whether the Veteran has a present disability. The September 2019 VA examination indicated that the Veteran did not have, nor ever has had a diagnosis of sleep apnea. The Board finds the examiner’s opinion to be adequate because it was supported by rationale and a review of the Veteran’s claims file. In the absence of proof of a present disability due to disease or injury, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). Thus, while the Veteran has reported that he suffers from obstructive sleep apnea, there is no evidence that he has a medical diagnosis for this condition. In this regard, the Veteran is competent to report symptoms and experiences observable by his senses, but he is not competent to diagnose sleep apnea because that requires specialized medical education, training, and diagnostic testing. 38 C.F.R. § 3.159 (a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a result, the Board finds the appeal in this matter must be denied. 3. Service connection for a back condition is denied. Factual background The Veteran was diagnosed with the back condition of degenerative intervertebral disc disease in 2014. At the September 2019 VA examination, the conducting physician opined that the Veteran’s back condition was less likely than not incurred in or caused by asbestos exposure during service. As a rationale the physician explained that there is no known association between asbestos exposure and degenerative disc disease of the lumbar spine. The physician further explained that degenerative disc disease is a condition caused by the breakdown of the discs that separate the spinal bones and as it ages the spine beings to show signs of “wear and tear” as the discs dry out and shrink. As such, the physician opined that the Veteran’s back condition is a consequence of aging rather than due to asbestos exposure. Analysis The Board finds that the preponderance of the evidence is against finding that the Veteran’s diagnosed back condition is causally connected to his in-service asbestos exposure. The Board finds the September 2019 VA examiner’s opinion is adequate because it was provided after a review of the Veteran’s claims folder and is supported by a thorough rationale that the Veteran’s condition is due to aging process rather than asbestos exposure. To the extent the Veteran believes that a relationship exists between his back condition and his in-service asbestos exposure, the Board is sympathetic to this sincere belief but cannot rely on his statements as evidence in support of the claim. In this case, the medical cause of the disability is not one that lay persons can observe and requires the opinion of a trained medical professionals because it is a complex medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that service connection is not warranted and the appeal must be denied. 4. Service connection for an eye condition is denied. Factual Background The Veteran was diagnosed with a refractive error condition at a September 2019 VA examination. The conducting physician opined it was less likely than not that the Veteran’s eye condition was incurred in or caused by the claimed in-service injury, event or illness because scientific literature does not support the concept that refractive errors are related to exposure to asbestos. Analysis The Board finds that the preponderance of the evidence is against finding that the Veteran’s diagnosed eye condition is causally connected to his in-service asbestos exposure. The Board finds the September 2019 VA examiner’s opinion is adequate because it was provided after a review of the Veteran’s claims folder and is supported by a thorough rationale (that scientific literature does not support the concept that refractive errors are related to exposure to asbestos). To the extent the Veteran believes that a relationship exists between his eye condition and his in-service asbestos exposure, the Board is sympathetic to this sincere belief but cannot rely on his statements as evidence in support of the claim. In this case, the medical cause of the disability is not one that lay persons can observe and requires the opinion of a trained medical professionals because it is a complex medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that service connection is not warranted and the appeal must be denied. REASONS FOR REMAND 1. Service connection for hypertension as secondary to diabetes mellitus, is remanded. The Veteran has a diagnosis of hypertension according to a July 2009 VA treatment. The Veteran was afforded a September 2019 VA examination where the conducting physician opined that the Veteran’s hypertension was less likely than not incurred in or caused by asbestos exposure during service. As a rationale, the physician explained that asbestos exposure is linked to specific conditions of the lung. The physician explained that among the most widely accepted risk factors of hypertension is diabetes mellitus. Given that the Veteran has been service-connected for diabetes mellitus, the Veteran must be afforded another VA examination to determine whether his hypertension is causally connected to his diabetes mellitus. 2. Service connection for erectile dysfunction, as secondary to diabetes mellitus, is remanded. The Veteran was diagnosed with erectile dysfunction in March 2018. See September 2019 VA examination. The Veteran’s service records do not contain any reports of nor treatments for erectile dysfunction. The Veteran provided a lay statement from his wife that she believed her husband’s erectile dysfunction was the result of his diabetes. At the September 2019 VA examination, the conducting physician opined that the Veteran’s erectile dysfunction was less likely than not caused by asbestos exposure during service. As a rationale, the physician explained that asbestos exposure leads to conditions of the lung. The physician also explained that the Veteran’s erectile dysfunction was the result of radiation therapy for prostate cancer because the Veteran reported noticing the onset of erectile dysfunction after the implantation of radiation seeds to treat prostate cancer about 18 months prior to the examination. The physician listed various factors that can lead to erectile dysfunction which included diabetes mellitus. Given that the Veteran has been service-connected for diabetes mellitus, the Veteran must be afforded another VA examination to determine whether his erectile dysfunction is causally connected to his diabetes mellitus. The matters are REMANDED for the following action: 1. Arrange for an examination of the Veteran by an appropriate clinician. The examiner should review the entire record in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not that the Veteran’s erectile dysfunction was incurred in, related to, or caused by any incident of the Veteran’s military service (including his confirmed herbicide exposure therein); OR (b) was caused or aggravated by his service-connected diabetes mellitus? 2. The examiner should also respond to the following: (a) Is it at least as likely as not that the Veteran’s hypertension was incurred in, related to, or caused by any incident of the Veteran’s military service (including his confirmed herbicide exposure therein); OR (b) was caused or aggravated by his service-connected diabetes mellitus A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.