Citation Nr: 20041997 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 15-18 872A DATE: June 19, 2020 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, type II, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, type II, is granted. REMANDED Entitlement to service connection for primary thrombocythemia, arthritis, thrombocytosis (leukemia) with bone marrow infection and erysipelas (blood disorder), to include as due to exposure to herbicides, is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, while stationed in Korea, the Veteran attended training near the Demilitarized Zone (DMZ) and/or was actually exposed to herbicides, including Agent Orange. 2. The Veteran has a current diagnosis of diabetes mellitus, type II. 3. The Veteran’s peripheral neuropathy of the right lower extremity is proximately due to his service-connected diabetes mellitus, type II. 4. The Veteran’s peripheral neuropathy of the left lower extremity is proximately due to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1967 to November 1969, to include service in Korea from September 1968 to November 1969. In December 2018, the Board remanded the issues on appeal for additional development. The remand directives required that the Regional Office (RO) submit a request to the Joint Services Records Research Center (JSRRC) for verification of the Veteran’s exposure to herbicides during his service in Korea. The RO was directed to provide JSRRC with the Veteran’s claims file, including his service dates and duty locations, all his statements regarding exposure, including lay statements from his fellow servicemembers, and the photographs that he furnished. The response provided by the JSCRRC included only information about 1968; it was not entirely responsive to the RO’s request. A remand by the Board confers upon the claimant, as a matter of law, the right to substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). However, here there is no prejudice to the Veteran that the requested development was not completed in its entirety, as the claims of entitlement to service connection for diabetes mellitus, type II and peripheral neuropathy of the right and left lower extremities are granted herein and the remaining issue will be remanded. 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is granted. The Veteran maintains entitlement to service connection for diabetes mellitus, type II (diabetes), to include as secondary to Agent Orange exposure during his active duty military service in Korea. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.307, if a Veteran served between September 1, 1967, to August 31, 1971, in a unit found to have operated in or near the Korean DMZ, then he or she is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iv). Even if the presumption of herbicide exposure cannot be established, a claimant may still show entitlement to benefits by otherwise demonstrating that the factual exposure to an herbicide agent as likely as not occurred in service. In other words, presumptive service connection does not vitiate the underlying framework of direct service connection. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). A claimant is still permitted to demonstrate in-service incurrence or aggravation through actual evidence of exposure. And, for claimants who successfully establish exposure to an herbicide agent, even if limited to factual exposure, VA will still grant presumptive service connection for the diseases listed at 38 C.F.R. § 3.309(e), including diabetes mellitus, type II. VA must consider all medical and lay evidence of record. 38 U.S.C. § 5107. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran has been diagnosed with diabetes since October 2007, as reflected in a May 2010 letter from the Veteran’s private physician. His service treatment records do not reflect, and he does not contend, that his diabetes had its onset during his military service. Rather, the Veteran contends that his diabetes is the result of exposure to herbicide agents while serving in Korea. Thus, if herbicide agent exposure is shown, presumptive service connection would be warranted under 38 C.F.R. § 3.309(e). Military personnel records confirm that the Veteran was assigned to the USARPAC (Korea) from September 30, 1968, to November 25, 1969, and was a member of the 38th Artillery Brigade (higher headquarters), 4th Battalion (HERC), 44th Artillery. The Veteran reports that upon arrival in country he was then taken from the Kempo Airport to Camp Casey. The Veteran states that he then stayed at a battery on the DMZ for several days before being transferred to Echo Battery, located in the middle of Korea. He reports that during his assignment to Echo Battery he was sent to the DMZ on several occasions, spending at least four weeks there for training and was, thus, exposed to Agent Orange while there. The Veteran submitted a statement in support of his assertion that he received training at the DMZ from a Veteran who also served with him at Echo Battery. This Veteran noted that their unit at Echo Hill was made up of different sections of security which meant that some people had to receive advanced training. If someone was ordered to participate in such advanced training, he or she would be sent to a different base, “oftentimes at the DMZ.” Further, while the Veteran was stationed on Echo Hill, he states that a Korean infiltrator got through the security fence surrounding the camp prompting the installation of a new security fence. Prior to the installation of the fence, the area was sprayed with a chemical that the Veteran believes was Agent Orange to keep foliage from growing in the area where the fence would be placed. He reports that those who were assigned to the radars were required to guard the workers doing the fence work, including spraying to clear foliage, as the area itself was classified. He states that he stood in the area that was sprayed on and off until the fence was completed, thus he maintains that he directly was exposed to Agent Orange at Echo Hill. The Veteran submitted two lay statements from fellow servicemen supporting his description of the incident with the infiltrator and the subsequent efforts that were made to reinforce security around the base. In one statement a servicemember who was also stationed at Echo Hill described the event with the Korean infiltrator and the subsequent response: “Caught a Korean on the low power acquisition radar (LOPAR) preparing to cut cables…a short time later more perimeter lights were being installed as well as a double fence.” In another statement, a fellow servicemember who was stationed there as well described the efforts to reinforce security in the area, including a description of the clearing of vegetation to do so: “After this incident [with the infiltrator], a reinforcement of the fence line took place…Before we could put up the additional fence line, the vegetation around the existing fence line had to be cleared out. This was done by spraying a chemical. After the spraying happened, all of the vegetation that had been there died and didn’t grow back…” To support the Veteran’s assertions that the chemical used to clear the vegetation was in fact Agent Orange, he submitted a statement from a Veteran who did not know the claimant during service and reportedly had a top secret clearance at that time. In this statement, the other Veteran detailed a courier mission he was sent on from Camp Casey to Echo Hill. This Veteran described being instructed to pick up four barrels of an unknown substance for delivery to Echo Hill. When he arrived to pick up the barrels, he noted that they were black with an orange stripe and had warnings on the sides. The paperwork indicated that the barrels contained herbicide. He noted that he distinctly recalled the letters “BUT” and the word “ester” on the paperwork. This Veteran noted that when he arrived in Echo Hill, the Koreans who helped him unload the barrels told him they were going to be used around the perimeter of the base to clear out vegetation. The RO requested information about the Veteran’s possible exposure to herbicides while serving in Korea from the JSRRC. It then issued a letter in October 2019, summarizing the JSRRC findings. The letter states that the JSRRC reviewed the “1968 unit history submitted by the 4th Battalion (HERC), 44th Artillery, and the 38th Artillery Brigade” and the “Eighth U.S. Army Chronology” and that the “histories document that the main base camp location for the 4th Battalion, 44th Artillery was Camp Humphreys, South Korea.” The letter concludes that the records did “not document the use, storage, spraying, or transporting of Agent Orange or other tactical herbicides” not did the records “document any specific duty performed by the unit members along the…(DMZ).” The Board acknowledges the existence of this negative evidence. However, it also notes that the Veteran and his comrades have consistently, competently, and credibly testified that advanced training for members of their unit took place at the DMZ. The Veteran submitted a military report to support his allegations that he participated in training at the DMZ. The report indicates that his unit was “engaged in a wide variety of activities” including “Annual Practice Training.” It also notes that the 2nd Battalion, 31st Infantry of the 7th Infantry division provided site security for the Veteran’s unit until June 1970. This finding is noteworthy because the 2nd Battalion, 31st Infantry of the 7th Infantry is one of the units described by the DoD to VA as having served on the DMZ. The fact the unit that provided site security for the Veteran’s unit is known to have served on or near the DMZ reasonably raises the probability that the Veteran’s unit also served on or near the DMZ. The Board also notes the Veteran and his fellow servicemembers have consistently, competently, and credibly described the incident that precipitated the clearing of vegetation prior to the installation of a new security fence. The Veteran submitted another military report which described the Veteran’s unit, “Maximum Security Areas (4/44th Arty HERCULES Sites” and states: “The six MSAs for Nike-HERCULES sites are spread throughout Korea. The remote locations of many of these sites makes them especially vulnerable to attack by fast moving, well-trained North Korean commando-type unit such as they now have trained.” This evidence of record indicates that such an attack occurred, further corroborating the Veteran’s claim and bolstering his credibility. Additionally, the Veteran submitted a statement from a servicemember who had a top secret clearance who recalled seeing “BUT” and “ester” on the barrels he was assigned to transport to Echo Hill. Agent Orange was comprised of 50 percent equal parts of the N-Butyl ester forms of 2,4-D and 2,4,5-T. The Veteran submitted photographs of Agent Orange barrels with these words printed on them. The Board finds it noteworthy that the Veteran who reported this did not know the Veteran during his active duty service and thus, is a source of both independent and unbiased corroboration of his allegations that there was Agent Orange use at Echo Hill. The Board has thoroughly considered and evaluated the record and finds that the evidence on the point of whether the Veteran was exposed to herbicides during service it at least in equipoise, given his credible statements of training placing him at the DMZ, evidence that his unit’s security force was located near or on the DMZ, and his and his fellow Veterans’ credible statements of herbicide use on the base at which he was stationed. After considering the entirety of the record and giving the benefit of the doubt to the Veteran, the Board finds that entitlement to service connection for diabetes mellitus due to herbicide exposure is warranted. 38 U.S.C. § § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309(e). 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to diabetes mellitus, type II, is granted. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to diabetes mellitus, type II, is granted. The Veteran maintains that his peripheral neuropathy of the right and left lower extremities is etiologically related either to his in-service exposure to Agent Orange or to his now service-connected diabetes. The Board will discuss each contention in turn. Early onset peripheral neuropathy is listed as a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Effective for claims such as this one pending on September 6, 2013, VA replaced the term “acute and subacute peripheral neuropathy” with the term “early-onset peripheral neuropathy.” See Disease Associated with Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54763 (Sept. 6, 2013)). VA also removed Note 2 to § 3.309(e), which had required, for the presumption to apply, that the neuropathy be transient, appear within weeks or months of exposure to an herbicide agent, and resolve within two years of the date of onset. Under the new version of the regulation, early onset peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. Id. The Board notes that the Veteran’s exposure to Agent Orange has been conceded as related to his active duty service in Korea near the DMZ herein. The Veteran has also been diagnosed with peripheral neuropathy during the appeal. At issue is whether the Veteran’s peripheral neuropathy is early-onset and manifested to a compensable degree within a year of the last date on which he was exposed to an herbicide agent. The Veteran’s service treatment records are silent for complaint, treatment, or diagnosis of peripheral neuropathy or neuropathy symptoms, to include numbness or tingling. His October 1969 separation examination assesses his lower extremities and neurologic system as normal. In conjunction with the Veteran’s service connection claims, he submitted a letter describing the onset of his claimed disabilities. Regarding peripheral neuropathy, he indicated that the symptoms he experienced (tingling, numbness, and some pain) came as an onset of diabetes. In other words, the Veteran described these symptoms as indicating to him that he had diabetes. A May 2010 letter from the Veteran’s private physician indicates that he was first diagnosed with diabetes in October 2007 and subsequent medical records document that diagnosis and a diagnosis of peripheral neuropathy. As the Veteran’s self-reported peripheral neuropathy symptoms occurred near his diagnosis of diabetes, and diabetes was diagnosed in 2007, thirty-eight years after service, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran had early onset peripheral neuropathy as is required for a grant of service connection on a presumptive basis. The Board now turns to whether entitlement to service connection is warranted as secondary to the Veteran’s Agent Orange exposure on a direct basis (Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994) or as secondary to his service-connected diabetes. In July 2010, the Veteran attended a private initial medical evaluation. There, the private physician noted an existing peripheral neuropathy diagnosis. In addition to observing the Veteran’s symptoms of numbness and tingling in the lower extremities, the determined that the etiology of the Veteran’s peripheral neuropathy was diabetes mellitus and possibly Agent Orange. The Board notes that, while the July 2010 private physician notes a possible relationship between the Veteran’s peripheral neuropathy and Agent Orange exposure, this is unsupported by the record. As previously discussed, there is no evidence of early onset as required for presumptive service connection under 38 C.F.R. § 3.309(e). Whereas the VA has determined there is sound medical and scientific evidence of a positive association between early onset peripheral neuropathy and exposure to herbicide agents, the same cannot be said for delayed onset peripheral neuropathy. Id. In fact, in its Veterans and Agent Orange: Update 2010, the National Academy of Sciences, found that evidence does not support an association between herbicide agent exposure and delayed-onset peripheral neuropathy. Id. at 54764. As the Veteran has not argued, nor do his service treatment records contain any evidence demonstrating any other injury, event, or disease that caused peripheral neuropathy, there is no evidence to support service connection for peripheral neuropathy as directly related to Agent Orange exposure or to service generally. However, the Board finds that service connection for peripheral neuropathy is warranted as secondary to the Veteran’s now service-connected diabetes. The Board acknowledges that the private physician’s statement linking Veteran’s peripheral neuropathy to his diabetes is conclusory, containing no supporting data or rationale. The Board could remand the claim for a supplemental medical opinion with more complete, detailed rationale concerning the etiological relationship between the Veteran’s peripheral neuropathy and diabetes. But, considering the entire record, the Board finds that there is enough probative value in his private physician’s findings to warrant an award of service connection. Notably, peripheral neuropathy has been diagnosed by medical professionals and is a well-known complication of diabetes, and the Veteran competently and credibly described nearly simultaneous onset of neuropathy symptoms with his diagnosis of diabetes. Thus, having reviewed the evidence of record, the Board finds that the evidence for and against the Veteran’s claim is in at least relative equipoise. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the Veteran’s favor. Accordingly, the Veteran’s service connection claims for peripheral neuropathy of the right and left lower extremities, as secondary to diabetes, are granted. REASONS FOR REMAND Entitlement to service connection for primary thrombocythemia, arthritis, thrombocytosis (leukemia) with bone marrow infection and erysipelas (blood disorder), to include as due to exposure to herbicides, is remanded. The Veteran claims entitlement to service connection for primary thrombocythemia, arthritis, thrombocytosis (leukemia) with bone marrow infection and erysipelas (blood disorder) to include as due to exposure to Agent Orange. The Board has conceded exposure to herbicides, including Agent Orange, within this decision. Although the claimed conditions are not included on the list of presumptive diseases for herbicide exposure in 38 C.F.R. § 3.309(e), the Board observes that the Veteran is not precluded from establishing service connection for them with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Therefore, a remand is warranted. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s primary thrombocythemia, arthritis, thrombocytosis (leukemia) with bone marrow infection and erysipelas (blood disorder) is at least as likely as not related to the conceded herbicide exposure in service. In so doing, the examiner must review the Veteran’s entire claims file and note in the examination report that such were reviewed. The rationale for all opinions must be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.