Citation Nr: 20026091 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 19-18 634 DATE: April 15, 2020 ORDER New and material evidence having been received, the claim of service connection for diabetes mellitus, type II is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of service connection for peripheral neuropathy of the left foot is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of service connection for peripheral neuropathy of the right foot is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of service connection for peripheral neuropathy of the left hand is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of service connection for peripheral neuropathy of the right hand is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of service connection for an eye disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of service connection for hypertension is reopened; the appeal is granted to this extent only. Service connection for diabetes mellitus, type II is denied. Service connection for peripheral neuropathy of the left foot is denied. Service connection for peripheral neuropathy of the right foot is denied. Service connection for peripheral neuropathy of the left hand is denied. Service connection for peripheral neuropathy of the right hand is denied. Service connection for an eye disorder is denied. REMANDED Service connection for hypertension is remanded. FINDINGS OF FACT 1. The December 2002 and February 2010 rating decisions denying service connection for diabetes mellitus, type II and hypertension are final. 2. The December 2015 rating decision denying service connection for diabetes mellitus, type II, peripheral neuropathy in both hands and both feet, and an eye disorder is final. 3. New and material evidence has been received to reopen a claim of service connection for diabetes mellitus, type II. 4. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the left foot. 5. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the right foot. 6. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the left hand. 7. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the right hand. 8. New and material evidence has been received to reopen a claim of service connection for an eye disorder. 9. New and material evidence has been received to reopen a claim of service connection for hypertension. 10. The Veteran was not exposed to Agent Orange, or other tactical herbicides, during his service in Thailand. 11. The Veteran’s diabetes mellitus, type II did not onset within a year after separation from service. 12. The Veteran’s decreased visual acuity noted during service was not due to an in-service injury. CONCLUSIONS OF LAW 1. The December 2002 and February 2010 rating decisions denying service connection for diabetes mellitus, type II and hypertension are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The December 2015 rating decision denying service connection for diabetes mellitus, type II, peripheral neuropathy in both hands and both feet, and an eye disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to reopen a claim of service connection for diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the left foot. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the right foot. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the left hand. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. New and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the right hand. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 8. New and material evidence has been received to reopen a claim of service connection for an eye disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. New and material evidence has been received to reopen a claim of service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 10. The criteria for service connection for diabetes mellitus, type II have not been met. 38 C.F.R. §§ 1110, 1112, 1116, 1131, 1133, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 11. The criteria for service connection for peripheral neuropathy of the left foot have not been met. 38 C.F.R. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 12. The criteria for service connection for peripheral neuropathy of the right foot have not been met. 38 C.F.R. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 13. The criteria for service connection for peripheral neuropathy of the left hand have not been met. 38 C.F.R. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 14. The criteria for service connection for peripheral neuropathy of the right hand have not been met. 38 C.F.R. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 15. The criteria for service connection for an eye disorder have not been met. 38 C.F.R. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to January 1983. The case is on appeal from a July 2017 rating decision. In March 2020, the Veteran testified at a Board hearing. At the hearing, the record was held open for 30 days to allow the Veteran to submit a medical nexus opinion from a physician and provide further evidence regarding his herbicide exposure. However, nothing has been added to the claims file since the Board hearing. This case has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Petitions to Reopen 1. Whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus, type II 2. Whether new and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the left foot 3. Whether new and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the right foot 4. Whether new and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the left hand 5. Whether new and material evidence has been received to reopen a claim of service connection for peripheral neuropathy of the right hand 6. Whether new and material evidence has been received to reopen a claim of service connection for an eye disorder 7. Whether new and material evidence has been received to reopen a claim of service connection for hypertension By a July 2002 rating decision, claims of service connection for diabetes mellitus, type II and hypertension were denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the Veteran filed a claim to reopen in November 2009. No new evidence or notice of disagreement was received by VA within one year of the issuance of the July 2009 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. By a February 2010 rating decision, petitions to reopen claims of service connection for diabetes mellitus, type II and hypertension were denied. The Veteran was notified of the decision by letter in March 2010, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until petitions to reopen in October 2015. No new evidence or notice of disagreement was received by VA within one year of the issuance of the February 2010 rating decision. As the Veteran did not appeal the decision, that rating decision is final. Id. By a December 2015 rating decision, a petition to reopen a claim of service connection for diabetes mellitus, type II, as well as claims of service connection for peripheral neuropathy of the hands and feet and an eye disorder were denied. The Veteran was notified of the decision by letter in January 2016, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claims was received until the present claim to reopen in July 2017. No new evidence or notice of disagreement was received by VA within one year of the issuance of the December 2015 rating decision. As the Veteran did not appeal the decision, that rating decision is final. Id. The Board finds that new and material evidence has been submitted so that the previously denied claims of service connection for diabetes mellitus type II, peripheral neuropathy in both hands and both feet, an eye disorder, and hypertension are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In conjunction with his July 2017 claim, the Veteran has provided new details as to the nature of his exposure to tactical herbicides while serving in Thailand, which is the essence of the claims. In his August 2017 notice of disagreement, the Veteran stated that, while not serving directly on the flight line, he did serve in an office that was near the flight line and was exposed to Agent Orange as a result of being in an office close to the flight line. Notably, as a result of receiving this statement, the regional office (RO) in June 2019 issued a memorandum finding that herbicide exposure could not be conceded. While the Veteran’s statement, as explained below, is not sufficient to find that he was exposed to herbicides, the RO, as outlined in the June 2019 memorandum, did reexamine the record to determine whether herbicide exposure could be conceded. Therefore, the petitions to reopen claims of service connection for diabetes mellitus, type II, peripheral neuropathy in both hands and both feet, an eye disorder, and hypertension are granted. Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA does not compensate for refractive error of the eye unless the disorder is the result of an in-service injury. 38 C.F.R. § 3.303(c). Veterans who served in the Republic of Vietnam are presumed to have been exposed to tactical herbicides. 38 C.F.R. § 3.307. Air Force veterans who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era are also presumed to have been exposed to an herbicide agent. To qualify for the presumption, the veteran must have served as a flight, ground maintenance, or medical crew member of such aircraft. Id. Certain disorders, including diabetes mellitus, type II and early onset peripheral neuropathy are presumed to be related to service. 38 C.F.R. § 3.309(e). Even if a disorder is not presumed to be related to service, service connection is still available on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA currently concedes in-service herbicide exposure for Air Force service personnel who served at specifically enumerated air force bases in Thailand, but only if the Veteran’s served in a military occupational specialty (MOS) with duties placing him or her at or near the air base perimeter. Specifically, VA will concede herbicide exposure if an Air Force Veteran served on one of the enumerated air bases as an Air Force (1) security policeman, (2) security patrol dog handler, (3) member of a security police squadron or (4) otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports or other credible evidence. See August 2015 C&P Service Bulletin. Certain disorders listed in 38 C.F.R. § 3.309(a), such as diabetes mellitus, are presumed to be related to service if the disorder onsets within a year after separation from service. 38 C.F.R. § 3.307. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 8. Service connection for diabetes mellitus, type II 9. Service connection for peripheral neuropathy of the left foot 10. Service connection for peripheral neuropathy of the right foot 11. Service connection for peripheral neuropathy of the left hand 12. Service connection for peripheral neuropathy of the right hand 13. Service connection for an eye disorder 14. Service connection for hypertension The Veteran claims that his diabetes, peripheral neuropathy, eye disorder, and hypertension are related to herbicide exposure during his service in Thailand. Specifically, he testified that he served as an administrative specialist for a field maintenance fighter wing during that time and that his exposure was the result of having an office near the flight line. While the Veteran is competent to state where on base he served and his duties, Kahana v. Shinseki, 24 Vet. App. 428 (2011); however, based on the evidence of record, the Veteran’s statements do not indicate that he was exposed to tactical herbicides during service. The Veteran does not claim, and there is no indication that, the Veteran served on or near the base perimeter where tactical herbicides such as Agent Orange were known to have been used. Further, the Veteran served as an administrative specialist while in Thailand. He did not serve on the flight line itself, or in a MOS for which exposure to tactical herbicides is presumed. This is confirmed in the June 2019 memorandum issued by the RO. Thus, while the Veteran may have served in an office on a base in Thailand, there is no competent evidence that the Veteran was exposed to herbicides during service. The Veteran’s representative at the Board hearing argued that the Board should apply Procopio v. Wilkie, to service in Thailand. 913 F.3d 1371 (Fed. Cir. 2019). In Procopio, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that veterans who served in “the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ are entitled” to the herbicide presumptions listed in 38 U.S.C. § 1116 and 38 C.F.R. § 3.307. Id. at 1381. However, in doing so, the Federal Circuit recognized that, “by using the formal term ‘Republic of Vietnam,’ Congress unambiguously referred, consistent with uniform international law, to both its landmass and its 12 nautical mile territorial sea.” Id. at 1379. There is no similar indication that Congress or VA intended the regulation to extent to landmass beyond the recognized borders of the Republic of Vietnam, and, there is no indication in the record of a basic principle of international law recognizing one country’s territory as encompassing the landmass of another sovereign state. Therefore, the Board finds that the Veteran did not serve in the Republic of Vietnam, as that term is used in the applicable laws and regulations regarding herbicide exposure. In a November 2009 statement, the Veteran also stated that his diabetes mellitus and hypertension onset shortly after he left service in 1983. A June 2002 VA examination reveals that hypertension was diagnosed in 1984 but that diabetes had not been diagnosed until a few years before that examination, or around 1999 or 2000 rather than shortly after service. Thus, the Board interprets the Veteran’s November 2009 statement to mean that his diabetes onset in the middle of the 1980s in the years immediately after service as his hypertension did. However, as indicated at the June 2002 VA examination, the Veteran’s diabetes mellitus did not onset until 1999 or 2000. Therefore, while the Veteran is competent to report as to his diagnoses, the record demonstrates that the Veteran’s diabetes did not onset within a year after service, or that the Veteran has experienced symptoms of diabetes mellitus since service. Further, as diabetes mellitus has not been shown to be related to service, service connection for disorders as secondary to diabetes mellitus is not available. 38 C.F.R. § 3.310. Finally, the Board notes that on his separation examination, it was reported that the Veteran did experience refractive error of the eye. However, as there was no in-service injury which caused the defect in visual acuity, service connection for this eye disorder is not available. Therefore, service connection for diabetes, peripheral neuropathy in each extremity, and an eye disorder is denied. REASONS FOR REMAND 1. Service connection for hypertension is remanded. A remand is necessary to obtain more information regarding the etiology of the Veteran’s hypertension. At a June 2002 VA examination, it was reported that the Veteran was diagnosed with hypertension in 1984. The Veteran separated from service in 1983. In his November 2009 claim to reopen, the Veteran stated that he was diagnosed with hypertension shortly after service and claimed, at least implicitly, that hypertension began during service due to the proximity between service and diagnosis. Although hypertension is not listed in 38 C.F.R. § 3.309(a) as a disorder subject to the chronic condition presumption in 38 C.F.R. § 3.307, the Board believes that a further exploration of the etiology of the Veteran’s hypertension is warranted. Given the current national emergency, the Board will not require that an in-person examination be conducted. However, after a review of the record and input from the Veteran, a medical opinion should be obtained regarding the etiology of the Veteran’s hypertension. The matters are REMANDED for the following action: If it is possible to do so remotely, without the need for the Veteran to leave his home, afford the Veteran a VA examination of his hypertension. After a review of the entire record and consultation with the Veteran regarding his in-service symptoms, the examiner should opine as to whether: It is at least as likely as not that the Veteran’s hypertension is related to service. A complete rationale should be provided for any opinion rendered. Specifically, please note that the Veteran separated from service in 1983 and hypertension was noted to have been diagnosed in 1984. However, please note that the Board has found that the Veteran was not exposed to Agent Orange or other tactical herbicide during service. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. George 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.