Citation Nr: 20021935 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 19-27 735 DATE: March 30, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for coronary artery disease (CAD), status post myocardial infarction, and the claim is reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for type II diabetes mellitus and the claim is reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for basal cell/squamous cell carcinoma and the claim is reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for erectile dysfunction and the claim is reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral nerve condition of the lower extremities, also claimed as peripheral neuropathy, and the claim is reopened. Entitlement to service connection for coronary artery disease, status post myocardial infarction, is granted. Entitlement to service connection for type II diabetes mellitus is granted. Entitlement to service connection for basal cell/squamous cell carcinoma is denied. REMANDED Entitlement to service connection for a bilateral nerve condition of the lower extremities, also claimed as peripheral neuropathy, is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. In a November 2013 decision, the AOJ denied the Veteran’s application to reopen a claim of entitlement to service connection for CAD, and the Veteran did not appeal that decision. 2. Evidence received since the November 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim. 3. In a November 2013 decision, the AOJ denied the Veteran’s application to reopen a claim of entitlement to service connection for type II diabetes mellitus, and the Veteran did not appeal that decision. 4. Evidence received since the November 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim. 5. In a November 2013 decision, the AOJ denied the Veteran’s claim of entitlement to service connection for basal cell/squamous cell carcinoma, and the Veteran did not appeal that decision. 6. Evidence received since the November 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim. 7. In a November 2013 decision, the AOJ denied the Veteran’s claim of entitlement to service connection for bilateral nerve condition of the lower extremities, and the Veteran did not appeal that decision. 8. Evidence received since the November 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim. 9. In a November 2013 decision, the AOJ denied the Veteran’s claim of entitlement to service connection for erectile dysfunction, and the Veteran did not appeal that decision. 10. Evidence received since the November 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim. 11. The Veteran was exposed to tactical herbicide agents in service. 12. Ischemic heart disease manifested to a compensable degree after service. 13. Type II diabetes mellitus manifested to a compensable degree after service. 14. Basal cell/squamous cell carcinoma is not presumptively due to exposure to tactical herbicides, and the preponderance of the evidence is against finding that basal cell/squamous cell carcinoma began during active service, or is otherwise related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The November 2013 rating decision denying the Veteran’s application to reopen a claim of entitlement to service connection for CAD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Since the November 2013 rating decision, new and material evidence to reopen the claim for service connection of CAD has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The November 2013 rating decision denying the Veteran’s application to reopen a claim of entitlement to service connection for type II diabetes mellitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. Since the November 2013 rating decision, new and material evidence to reopen the claim for service connection of type II diabetes mellitus has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The November 2013 rating decision denying the Veteran’s claim of entitlement to service connection for basal cell/squamous cell carcinoma is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 6. Since the November 2013 rating decision, new and material evidence to reopen the claim for service connection basal cell/squamous cell carcinoma has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The November 2013 rating decision denying the Veteran’s claim of entitlement to service connection for erectile dysfunction is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 8. Since the November 2013 rating decision, new and material evidence to reopen the claim for service connection erectile dysfunction has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. The criteria for entitlement to service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 10. The criteria for entitlement to service connection for CAD have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 11. The criteria for entitlement to service connection for basal cell/squamous cell carcinoma have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for coronary artery disease, status post myocardial infarction. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for type II diabetes mellitus. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for basal cell/squamous cell carcinoma. 4. Entitlement to service connection for bilateral nerve condition of the lower extremities also claimed as peripheral neuropathy 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for erectile dysfunction. The Veteran seeks entitlement to service connection for the disabilities listed in issues 1 through 5 as presumptively related to exposure to tactical herbicide agents, such as Agent Orange. These issues were last addressed in a November 2013 rating decision. In each case, the Agency of Original Jurisdiction (AOJ) denied the claims, inter alia, on the grounds that the evidence did not establish exposure to tactical herbicide agents. The Veteran primarily contends that he was exposed to tactical herbicide agents during his service in Thailand. Although he has asserted he had a layover in Vietnam en route to Thailand during his deployment, there is no corroboration of this. Regardless, his personnel records document his service at Takhli, RTAFB, Thailand, from August 1967 through October 1970. At issue is whether his duties, as likely as not, involved exposure to herbicides. VA has recognized 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 as evidence in the Project CHECO Southeast Asia Report: Base Defense in Thailand (CHECO Report). Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. Here, the Veteran has credibly stated that his duties brought him to the base perimeter on several occasions. He related that he would leave the base once a week or so and provided a photograph of a first-person view (apparently his) watching an Air Force plane outside a barbed-wired perimeter. Moreover, the evidence indicates that during the Veteran’s time at Takhli, RTAFB, he met and married a local woman from a town near the base. Marriage and divorce records submitted by the Veteran support this finding. The Veteran’s statements are credible. The claims are reopened. Based upon the Veteran’s newly received statements and evidence, and in light of the CHECO Report, the Board finds that the Veteran was likely exposed to tactical herbicides during his service in Thailand because his service took him close to the base perimeter. Service Connection 6. Entitlement to service connection for CAD, status post myocardial infarction. 7. Entitlement to service connection for type II diabetes mellitus The Appellant contends that the Veteran’s type II diabetes mellitus, CAD and squamous and basal cell carcinomas are attributable to herbicide exposure at Takhli, RTAFB, Thailand from August 1967 through October 1970. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Type II diabetes mellitus is a listed chronic disease. Service incurrence for certain diseases, to include type II diabetes mellitus, ischemic heart disease and will be presumed on the basis of association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Such presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. VA has recognized 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 as evidence in the Project CHECO Southeast Asia Report: Base Defense in Thailand (CHECO Report). Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the RTAFB at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base’s perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Here, the Veteran’s personnel records show that he had boots-on-the-ground service in at Takhli RTAFB in Thailand from August 1967 through October 1970. The Veteran has competently and credibly related the circumstances of his service at Takhli RTAFB. The Veteran served as an Inventory Management Specialist, which is not one of the specialties listed as presumed to have been exposed to herbicides. However, the Veteran has offered credible evidence that he was present near the perimeter of the base. It is not unreasonable that the Veteran left the base on occasion during his 3-year service there and passed through or nearby perimeter, on occasion. It is reasonable to conclude that he left the base and passed through the perimeter given his courting and marriage to a local Thai woman. Thus, in affording the Appellant every benefit of the doubt, the Board concludes that he was exposed to tactical herbicides during his service in Thailand. Gilbert, supra. Entitlement to service connection for type II diabetes mellitus and coronary artery disease is granted. The Veteran was, as likely as not, exposed to herbicides during his service in Thailand. During his lifetime, type II diabetes mellitus and CAD have manifested to a compensable degree. Type II diabetes has required insulin, and the Veteran has a history of myocardial infarction and requires continuous medication, at least. Accordingly, in resolving any doubt in the Appellant’s favor, entitlement to service connection for CAD and type II diabetes mellitus is granted. Id. 8. Entitlement to service connection for basal cell/squamous cell carcinoma The Board has found, as likely as not, that the Veteran was exposed to tactical herbicides during his service in Thailand. As noted above, certain enumerated diseases are subject to presumptive service connection. Here, while 38 C.F.R. § 3.309(e) provides for presumptive service connection of certain soft tissue sarcomas – basal cell and squamous cell carcinoma are not among those cancers. See Id, Note 1. Accordingly, service connection for basal cell and squamous cell carcinoma is not warranted on a presumptive basis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of basal cell and squamous cell carcinoma, and evidence shows that the Veteran is presumptively exposed to tactical herbicide agents, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of basal cell and squamous cell carcinoma began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with basal cell and squamous cell carcinoma until approximately 2006 decades after his separation from service. While the Veteran is competent to report having experienced symptoms, he is not competent to provide a diagnosis in this case or determine that basal cell and squamous cell carcinoma are attributable to service, including as due to presumed exposure to herbicides. The issue is medically complex, as it requires specialized medical training and the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). REASONS FOR REMAND 1. Entitlement to service connection for bilateral nerve condition of the lower extremities also claimed as peripheral neuropathy is remanded. The Veteran seeks entitlement to service connection for a bilateral nerve condition of the lower extremities secondary to the now service-connected type II diabetes mellitus. VA records document assessments of radiculopathy and diabetic neuropathies. However, the nature and etiology of the nerve condition is unclear. A December 2011 VA vascular surgery note questions whether the Veteran had diabetic neuropathy or motor neuron sympathetic distribution. Radiculopathy was assessed, apparently as secondary to a non-service-connected low back condition resulting from a motorcycle accident in June 2012, yet VA’s computerized problem lists “neuropathy in diabetes.” Upon remand, the Veteran should be afforded an examination to ascertain the nature, presence and etiology of any bilateral nerve condition of the upper and lower extremities. See e.g. VA computerized problem list noting “neuropathy in diabetes” on June 22, 2012. 2. Entitlement to service connection for erectile dysfunction is remanded. A VA examination and opinion are necessary to decide this claim. The Veteran asserts that he has erectile dysfunction (ED) secondary to the now service-connected type II diabetes mellitus. ED is a common consequence of type II diabetes mellitus. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional in order to determine whether the Veteran currently has peripheral neuropathy of the extremities, as well as the etiology thereof, if diagnosed. Any tests deemed necessary by the examiner should be conducted, including electromyogram (EMG) and nerve conduction velocity (NCV) tests, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his lay assertions and the pertinent medical evidence. The examination report should note that the claims file was reviewed If peripheral neuropathy is diagnosed, the examiner is asked to address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s service-connected type II diabetes mellitus has caused peripheral neuropathy of any affected extremity. If peripheral neuropathy is diagnosed and the examiner finds that the Veteran’s service-connected type II diabetes mellitus has not caused peripheral neuropathy of any affected extremity, the examiner should opine whether it is at least as likely as not that peripheral neuropathy has been aggravated (that is, permanently worsened) by the Veteran’s service-connected type II diabetes mellitus, beyond natural progression. The examiner is advised that the term “as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. “More likely” and “as likely” support the contended causal relationship or a finding of aggravation; “less likely” weighs against the claim. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. Any opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. Schedule the Veteran for a VA examination by an appropriate medical professional in order to determine the etiology of his erectile dysfunction. Any tests deemed necessary by the examiner should be conducted and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his lay assertions and the pertinent medical evidence. The examination report should note that the claims file was reviewed The examiner is asked to address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s service-connected type II diabetes mellitus has caused erectile dysfunction. If the examiner finds that the Veteran’s service-connected type II diabetes mellitus has not caused erectile dysfunction, the examiner should opine whether it is at least as likely as not that peripheral neuropathy has been aggravated (that is, permanently worsened) by the Veteran’s service-connected type II diabetes mellitus, beyond natural progression. (Continued on the next page)   The examiner is advised that the term “as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. “More likely” and “as likely” support the contended causal relationship or a finding of aggravation; “less likely” weighs against the claim. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. Any opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.