Citation Nr: 20005458 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 16-01 865 DATE: January 23, 2020 ORDER Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure, is granted. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure, is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as secondary to prostate cancer or as due to herbicide exposure or due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness, is denied. The appeal seeking entitlement to service connection for a cerebrovascular accident is dismissed. The appeal seeking entitlement to service connection for hyperlipidemia is dismissed. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer or diabetes mellitus, is remanded. Entitlement to service connection for irritable bowel syndrome (IBS), claimed as diarrhea, to include as secondary to prostate cancer or due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness, is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran served at U-Tapao Royal Thai Air Force Base in Thailand from November 1968 to December 1969. 2. The record shows that the Veteran’s military occupational specialty (MOS) was Aircraft Pneudraulic Repairman. 3. The record persuasively suggests that the Veteran worked near the base perimeter at U-Tapao Royal Thai Air Force Base, which is one of the facilities where herbicides were sprayed in Thailand. 4. The Veteran’s lay statements regarding in-service herbicide exposure while working near the base perimeter at U-Tapao Royal Thai Air Force Base are considered credible. 5. The record shows that the Veteran has been diagnosed as having prostate cancer. 6. The record shows that the Veteran has been diagnosed as having diabetes mellitus, type II. 7. The Veteran had active service in the Southwest Asia Theater of Operations during the Persian Gulf War. 8. The Veteran's GERD did not have its onset in service and is not otherwise related to his active military service, to include any in-service exposure; nor has the Veteran’s GERD been attributed to an undiagnosed illness or a medically unexplained chronic multi-symptom illness. 9. In October 2019, prior to the promulgation of a decision in the appeal, the Veteran testified at his Board hearing that he was withdrawing the pending appeal of the issues of entitlement to service connection for a cerebrovascular accident and hyperlipidemia. CONCLUSIONS OF LAW 1. Prostate cancer was incurred in active service as due to in-service herbicide exposure. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.309. 2. Diabetes mellitus, type II, was incurred in active service as due to in-service herbicide exposure. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.309. 3. The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1117, 5103, 5103A; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 4. The criteria for withdrawal of the appeal concerning the issues of entitlement to service connection for a cerebrovascular accident and hyperlipidemia have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to December 1973 and from October 1990 to May 1991. This matter comes before the Board on appeal from April 2013 and December 2014 Regional Office (RO) rating decisions. In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Service Connection 1. Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure, is granted. 2. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure, is granted. The Veteran has claimed entitlement to service connection for prostate cancer and diabetes mellitus, type II. He contends that these disabilities are due to in-service herbicide exposure while serving in Thailand. The Veteran’s service personnel records indicate that he served at U-Tapao Royal Thai Air Force Base in Thailand from November 1968 to December 1969. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A veteran who is exposed to Agent Orange or other herbicides during service and develops certain diseases, such as prostate cancer and diabetes mellitus, will be service-connected for such disorders. 38 C.F.R. § 3.309(e). In this case, the diagnoses of prostate cancer and diabetes mellitus are not in dispute. Thus, if exposure to herbicides is established, service connection would be warranted. VA’s Compensation Service has determined that 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 Thailand military bases. The Veteran’s service personnel records contain multiple Airman Performance Reports and a TSGT, SSGT, and SGT Performance Report noting that the Veteran was an Aircraft Pneudraulic Repairman. One of these reports specifically notes the following duties: “Inspects, trouble-shoots and repairs pneudraulic system malfunctions on B-52 and KC-135 aircraft.” The Veteran has submitted maps of and photographs from U-Tapao that he reports shows that his duties would have placed him near the perimeter of the base. He has also provided several personal statements from himself and fellow servicemembers corroborating the nature and location where the Veteran performed his duties. The Board observes that the nature of the duties as they are described in the Veteran’s performance evaluations and by the Veteran himself persuasively support the Veteran’s assertion that his duties would have placed him near the perimeter. The Board therefore finds that, with reasonable doubt resolved in favor of the Veteran, the Veteran was exposed to herbicides during service on a facts-found basis. As the Veteran was exposed to herbicides during service and now has prostate cancer and diabetes mellitus, service connection for prostate cancer and diabetes mellitus is warranted. See 38 C.F.R. § 3.309(e). 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as secondary to prostate cancer or as due to herbicide exposure or as due to an undiagnosed illness, is denied. As noted above, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who was exposed to herbicides during service and develops certain diseases, listed in 38 C.F.R. § 3.309(e), will be service-connected for such disorder on a presumptive basis. There is no presumed positive association between exposure to herbicides and any condition that is not listed in 38 C.F.R. § 3.309(e). 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). Where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the case at hand, the Board notes that GERD is not on the list of disabilities that are eligible for presumptive service connection based on herbicide exposure. Under 38 C.F.R. § 3.317, service connection may be granted on a presumptive basis if there is evidence (1) that the claimant is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). In the case at hand, the Veteran has qualifying service under 38 C.F.R. § 3.317(e). The Veteran’s gastrointestinal symptoms have been attributed to GERD, which is a known clinical diagnosis. Specifically, for example, a December 2014 private operation report notes a post-operative diagnosis of “[h]iatal hernia with reflux, gastritis, rule out Helicobacter, hemorrhoidal disease, radiation proctitis, polyp 20 cm, diverticular disease of the colon.” In addition, the Veteran’s VA medical records contain many notations of the Veteran having GERD. For example, a January 2016 primary care note states the following: “Patient presents to clinic for routine clinic and management of chronic health conditions: DM, HTN, GERD, prostate cancer … h/o CVA and headaches….” Because these gastrointestinal symptoms have been attributable to a diagnosed disability, they cannot, by definition, be due to undiagnosed illness. In addition, GERD has been determined to be excluded from presumptive consideration as a medically unexplained chronic multi-symptom illness under 38 C.F.R. § 3.317. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Accordingly, the Board finds that the Veteran does not have an undiagnosed disability or a medically unexplained chronic multi-symptom illness pursuant to 38 C.F.R. § 3.317. The Board has also considered whether entitlement to service connection for GERD may be awarded on a direct basis. The Board notes, however, that the Veteran’s service treatment records reflect that he neither complained of nor sought treatment for symptoms that have been attributed to GERD during service. The Veteran testified at his Board hearing that his GERD symptoms began approximately three years following his separation from service. (See Board hearing transcript, page 5.) The Veteran also testified at his Board hearing that he believes his GERD is linked to his Agent Orange exposure. (See Board hearing transcript, pages 4-5.) The Board recognizes that there are instances in which a layperson, such as the Veteran, may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the medical question of whether the Veteran’s GERD is linked to his in-service herbicide exposure is of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. There is no opinion of record from a medical professional that has linked the Veteran’s GERD to such exposure or prostate cancer. Additionally, the Board has considered the Veteran’s statements and testimony but finds that the duty to assist has not been triggered. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Therefore, entitlement to service connection for GERD on a direct basis is not warranted. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. Withdrawn Claims 4. Entitlement to service connection for a cerebrovascular accident is withdrawn. 5. Entitlement to service connection for hyperlipidemia is withdrawn. In October 2019, the appellant withdrew the appeal of the claims of entitlement to service connection for a cerebrovascular accident and hyperlipidemia at a Board hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer or diabetes mellitus, is remanded. The Veteran contends that his erectile dysfunction is secondary to his service-connected prostate cancer or diabetes mellitus. A remand is required to obtain an etiology opinion on this issue. 2. Entitlement to service connection for irritable bowel syndrome (IBS), claimed as diarrhea, to include as secondary to prostate cancer or due to an undiagnosed illness or a medically unexplained chronic multisymptom illness, is remanded. The Veteran has also claimed entitlement to service connection for IBS, which he has also claimed as diarrhea, which he contends is due to his prostate cancer. (See Board hearing transcript, page 12.) The Veteran has testified as to having diarrhea and frequent bowel movements that do not, as of yet, require the use of absorbent materials. (See Board hearing transcript, pages 2, 15.) The Veteran testified that his IBS symptoms began around the time that he was diagnosed with prostate cancer. (See Board hearing transcript, page 13.) The Board notes that IBS is considered to be a medically unexplained chronic multi-symptom illness for which service-connection may be granted. The Veteran does not currently have an IBS diagnosis. The Board additionally notes that the Veteran’s service treatment records reflect that he was treated for stomach cramps and was given Donnatal in March 1969. No opinion has been obtained with respect to this claim. Given the above, the Board finds it appropriate to remand this claim for an examination and etiology opinion. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained in March 2017. 2. Schedule the Veteran for an examination by an examiner with sufficient expertise to determine whether the Veteran’s erectile dysfunction was caused or aggravated by his service-connected prostate cancer or diabetes mellitus, type II. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed, and all findings should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s erectile dysfunction was caused or aggravated by his service-connected prostate cancer or diabetes mellitus, type II. A complete rationale for all opinions should be provided, including discussion of the facts of the Veteran’s case and pertinent medical principles. 3. Schedule the Veteran for an examination by an examiner with sufficient expertise to determine the nature and etiology of the Veteran’s claimed diarrhea and IBS. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed, and all findings should be reported in detail. The examiner must provide a description of the nature and extent of the Veteran's symptoms related to his diarrhea. The examiner must determine whether a diagnosis for any disability that is manifested by diarrhea is warranted and must determine whether a diagnosis of IBS may be made or ruled out. If no diagnosis can be made, then the examiner shall provide an opinion regarding whether it is at least as likely as not that the Veteran manifests signs and symptoms of any undiagnosed illness, primarily manifested by diarrhea. If a condition other than IBS is made, the examiner should opine on whether it is at least as likely as not that any such condition was caused or aggravated by service or by his service-connected prostate cancer. In providing this opinion, the examiner should discuss the March 1969 service treatment record reflecting that the Veteran was treated for stomach cramps and was given Donnatal. A complete rationale for all opinions should be provided, including discussion of the facts of the Veteran’s case and pertinent medical principles. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.