Citation Nr: 20019798 Decision Date: 03/17/20 Archive Date: 03/17/20 DOCKET NO. 17-50 096 DATE: March 17, 2020 ORDER Entitlement to service connection for diabetes mellitus, type II is granted. REMANDED Entitlement to service connection for hypertension, to include as due to service-connected disease or injury is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran served at the Royal Thai Air Force Base in Udorn, Thailand from February 1969 to February 1970. 2. Based on his credible assertions of performing various duties in the defoliated perimeter of the Air Force Base in Udorn, Thailand, and resolving all doubt in his favor, the Veteran is found to have been exposed to herbicide agents during his active service. 3. The Veteran has a current diagnosis of type II diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to February 1970. These matters come to the Board of Veterans’ Appeals (Board) on appeal from September 2013 and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection 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). Service connection may 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(d). Pertinent VA law and regulations provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to certain designated herbicide agents (i.e., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). The diseases that are listed at 38 C.F.R. § 3.309(e), to include diabetes mellitus, shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Pursuant to its duty to assist, VA has established a procedure for Regional Offices to verify exposure to herbicides in Thailand during the Vietnam Era. See Compensation and Pension (C&P) Bulletin, May 2010. In the May 2010 bulletin, Compensation and Pension indicated that it had determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), Compensation and Pension has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. Given this information, Compensation and Pension has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. Significantly, Compensation and Pension stated that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” Compensation and Pension indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases with duties requiring entry into defoliated areas as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter requiring direct contact with herbicide on a facts found basis, as shown by military occupational specialty, performance evaluations, or other credible evidence. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides The Veteran contends that his diabetes mellitus is due to Agent Orange exposure during his service in Thailand. The Veteran was diagnosed with Diabetes Mellitus, Type II in October 2004. See October 2004 private treatment records. The Veteran’s service personnel records confirm that the Veteran was stationed in Udorn, Thailand from February 1969 to February 1970 as an “AC & W operator.” An August 2015 memorandum determined there was not enough information to verify the Veteran’s exposure to herbicides while serving in Thailand. The Veteran testified during the February 2020 Board hearing that for a one-month detail assignment he worked as a security patrolman and patrolled and conducted exercises in the areas that had been de-foliated. He testified that he thought his hands, face, and clothes made contact with the herbicide. There is no presumption of exposure but rather the requirement that the Veteran demonstrate that his disability was caused by a disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Here, it is physical contact of some nature with the herbicide agents that is necessary. The Veteran’s statements as to his service duties bringing him to the perimeter of the Air Force Base in Udorn, Thailand are consistent with the evidence of record. The Board finds that the Veteran’s reports of security patrol duty are credible as they are consistent with his rank and occupation. It is reasonable that an AC & W operator would be required to carry out a month-long detail in a patrol capacity as an auxiliary security responder. The Veteran credibly reported entering the defoliated areas during this assignment. As such, and with no evidence to weigh against those statements, the Board finds that the credible evidence of record supports a finding on a direct basis that the Veteran’s particularly described detail service as a patrolman required him to enter defoliated areas on the perimeter of the Air Force Base in Udorn, Thailand and had physical contact with a designated herbicide agent. As such, service connection for type II diabetes mellitus is warranted on a presumptive basis. The appeal is granted. REASONS FOR REMAND 2. Entitlement to service connection for hypertension, to include as due to service-connected disease or injury The Veteran contends that he is entitled to service connection for hypertension as due to his service-connected disabilities. As an initial matter, during his February 2020 Board hearing, the Veteran testified to outstanding private treatment records for his hypertension at a Presbyterian Health organization. A remand is required to allow VA to obtain authorization and request these records. Additionally, the Veteran has not been afforded a VA examination for hypertension. The Veteran contends that his hypertension is caused or aggravated by his diabetes or by contact with herbicide on a direct basis. The Board cannot make a fully-informed decision on the issue because no VA examiner has provided an opinion. Accordingly, an examination is required on remand. 3. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is related to his service. During his February 2020 Board hearing, the Veteran testified that while in service, his schedule forced him to endure irregular sleeping patterns, which led to his current sleep apnea. Though a VA opinion was obtained in February 2015, the VA examiner did not provide an opinion on the Veteran’s theory of entitlement. Accordingly, an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any treatment for his hypertension, to include Presbyterian Health. Make two requests for the authorized records from unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hypertension. The examiner must opine: (a.) whether hypertension is at least as likely as not caused by an in-service injury, event, or disease, including exposure to Agent Orange on a direct basis. (b.) whether hypertension at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) whether hypertension is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not related to the forced in-served irregular sleeping patterns. The examiner is asked to comment on the June 2014 and the July 2014 buddy statements from the Veteran’s sisters alleging potential manifestations of sleep apnea immediately following discharge. 4. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.