Citation Nr: A20007357 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190506-18944 DATE: April 30, 2020 ORDER Entitlement to service connection for obesity, including as secondary to diabetes mellitus, is denied. Entitlement to service connection for erectile dysfunction (ED), including as secondary to diabetes mellitus, is denied. Entitlement to service connection for a bilateral eye disorder, identified as diabetic cataracts, chorioretinal scar left eye, open angle glaucoma, including as secondary to diabetes mellitus, is denied. Entitlement to service connection for Waldenstrom's macroglobulinemia, lymphoplasmacytic lymphoma (claimed as genetic damage to chromosomes 4 and 6), including as secondary to diabetes mellitus, is denied. REMANDED Entitlement to service connection for coronary artery disease (CAD), status-post myocardial infarction, including as secondary to herbicide agent exposure, is remanded. Entitlement to service connection for a prostate disorder (claimed as elevated prostate antigen), including as secondary to herbicide agent exposure, is remanded. Entitlement to service connection for a left hip disorder, including as secondary to Paget’s disease, is remanded. Entitlement to service connection for a right hip disorder, including as secondary to Paget’s disease, is remanded. FINDING OF FACT Since the Veteran has not established service connection for diabetes mellitus Type II, there is no service-connected disorder to which his current obesity, ED, bilateral eye disorder, and lymphoma may be secondarily service-connected. CONCLUSIONS OF LAW 1. The criteria for service connection for obesity, including as secondary to diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for ED, including as secondary to diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a bilateral eye disorder, identified as diabetic cataracts, chorioretinal scar left eye, open angle glaucoma, including as secondary to diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for Waldenstrom’s macroglobulinemia, lymphoplasmacytic lymphoma (claimed as genetic damage to chromosomes 4 and 6), including as secondary to diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from February 1967 to August 1971. This matter comes before the Board on appeal from a March 2019 Rapid Appeals Modernization Program (RAMP) rating decision. The AOJ’s March 2019 rating decision initially characterized the issues above as denials of new and relevant evidence. The Board observes, however, that there was no final and binding denial of service connection for a bilateral hip disorder, CAD, prostate condition, obesity, ED, cataracts, and/or lymphoma; thus, the Board characterizes the above issues as original claims for service connection. That is, this appeal ultimately stems from December 2015 original service-connection claims (VA 21-526EZ), which were initially denied by an RO legacy decision issued in December 2016. However, the Veteran continuously pursued appeal options for the December 2016 legacy rating decision, so that it never became final and binding upon the Veteran. In June 2017, the Veteran filed a timely legacy notice of disagreement (NOD), which was then recognized by the RO in an acknowledgement letter that same month. In December 2018, the Veteran elected the modernized review system by submitting a Rapid Appeals Modernization Program (RAMP) Opt-in election form, on which he selected the higher level review lane for all eligible issues currently on appeal. 38 C.F.R. § 19.2(d). February and March 2019 letters informed the Veteran that VA had withdrawn his Legacy appeal and that it would continue the issue on appeal, under his selected higher-level-review lane. After the March 2019 RAMP decision, the Veteran selected the Board Hearing Docket lane under the Appeals Modernization Act (AMA) review system by submitting a VA Form 10182 (Board Appeal-Notice of Disagreement (NOD)) in April 2019. Thereafter, the Veteran testified at a Board videoconference hearing in January 2020, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In addition, several other issues (bilateral trigger finger disorder, hypertension, lumbar spine disorder, and Paget’s disease) were appealed to the Board from the March 2019 RAMP decision, which the Board addresses in a separate decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, including a malignant tumor, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for this chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for obesity, including as secondary to diabetes mellitus 2. Entitlement to service connection for erectile dysfunction (ED), including as secondary to diabetes mellitus 3. Entitlement to service connection for a bilateral eye disorder, identified as diabetic cataracts, chorioretinal scar left eye, open angle glaucoma, including as secondary to diabetes mellitus 4. Entitlement to service connection for Waldenstrom’s macroglobulinemia, lymphoplasmacytic lymphoma (claimed as genetic damage to chromosomes 4 and 6), including as secondary to diabetes mellitus The Veteran contends that his obesity, ED, bilateral eye disorder, and lymphoma are all secondary to his diagnosed diabetes mellitus Type II. The AOJ provided favorable findings that he has a current disability of Waldenstroms/lymphoplasmacytic lymphoma and eye disability of cataracts and glaucoma. Also, the Board’s review of VA treatment records show obesity and ED are among the conditions treated as active problems. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. For emphasis, the Veteran’s diabetes mellitus is not service-connected. The Veteran’s previous service connection claim for diabetes mellitus was last denied by an unappealed RO rating decision in December 2016. Regarding the question of secondary service connection, an underlying disease or injury must first be service connected for the Veteran to establish secondary service connection. 38 C.F.R. § 3.310. The Board concludes there is no possibility of establishing secondary service-connection, without service connection in effect for the underlying diabetes disability. 38 C.F.R. § 3.310. The appeals for obesity, ED, bilateral eye disorder, and lymphoma are denied. REASONS FOR REMAND 1. Entitlement to service connection for coronary artery disease (CAD), status-post myocardial infarction, including as secondary to herbicide agent exposure 2. Entitlement to service connection for a prostate disorder (claimed as elevated prostate antigen), including as secondary to herbicide agent exposure The Veteran testified that he developed heart disease and a prostate cancer as due to Agent Orange exposure during service. See January 2020 Board hearing transcript. The AOJ provided favorable findings that he has a current heart disease disability of CAD and prior myocardial infarction, per private treatment records. The AOJ provided no favorable findings for his prostate claim. VA currently concedes in-service herbicide exposure for Air Force service personnel serving 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. The Board notes that CAD and prostate cancer are among the listed diseases entitled to presumptive service connection for herbicide exposure under 38 C.F.R. § 3.309(e). The Veteran asserts that as part of the 54th Weather Recon Squadron, he was the Officer in Charge of Organizational Maintenance, he was responsible for staffing the aircraft and maintenance personnel of a forward operating base (FOB) in Thailand at Udorn Air Force Base. The Veteran maintained that he was exposed to Agent Orange as he, along with all maintenance personnel, constantly walked through a defoliated grassy area near the perimeter to maintain, launch and recover our aircraft. See November 2016 Veteran’s statement. The Veteran testified that he also worked in a hut within 500 meters of base perimeter, near cleared vegetation sprayed with Agent Orange. In addition, the Veteran alternatively contends that he was exposed to Agent Orange in the course of aircraft maintenance duties, as aircraft rotated back and forth to Thailand flying over Vietnam each way, typically by C-123 aircraft, as well as C-130 aircraft. See November 2016 Veteran’s statement and January 2020 Board hearing transcript. The Board points out that the Veteran’s service personnel records, as well as his submitted statements and testimony, Internet articles, and copies of military manuals, may suggest the Veteran may have been exposed to herbicides while serving on temporary assignment to an Air Force facility in Udorn, Thailand. Notably, the Veteran’s service personnel records verify he had nearly a month of TDY (temporary assignment) in January 1971, and another TDY in February 1971, so subsequent to the period researched, at Royal Thai Air Force Base, in Udorn, Thailand; and this was subsequent to the period researched. Moreover, his service personnel records show he was a Captain, with duties overseeing personnel for aircraft maintenance, and some records indicated he had an assignment with Secret duties that may well have involved some exposure to Agent Orange while stationed in Thailand during the Vietnam War. The Board acknowledges that a July 2016 records inquiry response, which appears to be from the JSRRC, researched potential herbicide exposure for the Veteran’s squadron during the summer of 1970, and indicated the historical records could not confirm any such exposure. However, the response did not specify operations details for the Veteran’s particular unit, nor provide any evidence specifically refuting the Veteran’s contentions, let alone for the entirety of his period of service. Thus, the AOJ should have sought another JSRRC inquiry that covered all of the Veteran’s contentions and full period of service. On remand, the AOJ should request a new JSRRC inquiry into the Veteran’s asserted herbicide exposure. Also, the AOJ should have provided the Veteran a formal finding of lack of verification of herbicide exposure. On remand, the AOJ should, if warranted, issue a formal memorandum to inform the Veteran of a finding of lack of verification of herbicide exposure. 3. Entitlement to service connection for a left hip disorder, including as secondary to Paget’s disease 4. Entitlement to service connection for a right hip disorder, including as secondary to Paget’s disease The Veteran testified that he has a bilateral hip disorder that is related to his Paget’s disease. See January 2020 Board hearing transcript. In a separate decision, the Board is remanding the Veteran’s service-connection claim for Paget’s disease for further development of his herbicide exposure claim. The hip disorder claims are inextricably intertwined with the Paget’s disease claim, so that further consideration of secondary service-connection for the left and right hip disorder claims must be deferred pending development of the service-connection claim for Paget’s disease. The matters are REMANDED for the following action: 1. The AOJ should request a new JSRRC inquiry into the Veteran’s asserted herbicide exposure, to cover all of the Veteran’s contentions and full period of service. 2. The AOJ should, if warranted, issue a formal memorandum to inform the Veteran of a finding of lack of verification of herbicide exposure. 3. The AOJ is advised that the Board is separately remanding the service-connection claim for Paget’s disease. Defer readjudication of the claims for secondary service connection for left and right hip disorders, pending the above development and readjudication of the Paget’s disease claim. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.