Citation Nr: 21000119 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-37 930 DATE: January 4, 2021 ORDER Service connection for a spleen disability is dismissed. Service connection for sarcoidosis is granted. Service connection for hypertension is granted. Service connection for diabetes insipidus as secondary to sarcoidosis is granted. Service connection for a pituitary gland tumor as secondary to sarcoidosis is granted. Service connection for depressive disorder as secondary to sarcoidosis is granted. Service connection for a disability manifested by fatigue as secondary to sarcoidosis is granted. Service connection for bilateral hearing loss as secondary to sarcoidosis is granted. FINDINGS OF FACT 1. In September 2020, after certification of the appeal to the Board and prior to the promulgation of a decision, the Veteran requested that the appeal for service connection for a spleen disability be withdrawn. 2. The Veteran’s sarcoidosis is related to active duty service in the U.S. Air Force. 3. The Veteran’s hypertension is related to active duty service in the U.S. Air Force. 4. The Veteran’s depressive disorder, pituitary gland tumor, diabetes insipidus, fatigue disability, and bilateral hearing loss are related to sarcoidosis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for a spleen disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205. 2. The criteria for service connection for sarcoidosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for depressive disorder, a pituitary gland tumor, diabetes insipidus, fatigue disability, and bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to January 1975 in the United States Air Force. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2013 and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran and his spouse testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. The Board recognizes that this, unfortunately, was the second hearing attended by the Veteran. The recording of the first hearing, held in July 2019, was inaudible and could not be transcribed. The Veteran thereafter opted to appear at the September 2020 hearing conducted before the undersigned. As a matter of clarification, the RO developed the appeal as involving separate claims for general pulmonary disease and sarcoidosis. However, as explained more fully below, separate awards of service connection cannot be assigned for a general pulmonary disability and sarcoidosis because this would constitute impermissible pyramiding. Instead, and the claims have been considered as one and service connection has been awarded for sarcoidosis. Dismissal 1. Service connection for a spleen disability is dismissed. The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205. During the September 2020 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of the claim for service connection for a spleen disability. See Hearing Transcript, p. 2. The undersigned explained that withdrawing the claim meant that it would be dismissed and would not be decided among the other claims in the present appeal. He noted that the Veteran could, however, seek service connection again in the future if desired. The Veteran, represented by a private attorney at the hearing, confirmed his understanding of the impact of a dismissal and his desire to proceed with withdrawing the claim. The record thus demonstrates that the consequences of the withdrawal were fully understood. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim for service connection for a spleen disability and it is dismissed. Service Connection VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 2. Service connection for sarcoidosis is granted. The Veteran has current sarcoidosis, documented, for example, in a September 2020 private medical report of Dr. S.-M. At the hearing, he testified that his sarcoidosis was caused by exposure to herbicide agents during temporary assignment in the Republic of Vietnam, and also while stationed at Nakhon Phanom Royal Thai Air Force Base through contact with the base perimeter. With regard to the matter of herbicide agent exposure in Vietnam, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6). Here, the Veteran’s service records do not document service in the Republic of Vietnam. He made attempts through official channels to obtain his temporary duty orders, but was advised that the retention period for such records is six years and three months and his records had been destroyed. However, he undertook efforts to obtain his pay records, which indicate an increase in compensation during various portions of his service. At the September 2020 hearing and in written correspondence, he explained mathematically, with supportive documentation, how the increased compensation received represented foreign duty pay and hostile fire pay for service in Vietnam, based on his grade in service at the time. Further, he submitted statements of his brother, sister, brother-in-law, wife, and mother, asserting personal knowledge of his presence in Vietnam based on letters mailed and received at the time. He submitted a buddy statement of N.C. who also stated he was personally aware that the Veteran served in Vietnam on temporary assignment during the course of their careers in the military. Further, he submitted a military document outlining the 56th Organizational Maintenance Squadron Operations in Vietnam between July 1972 and December 1972. The document describes that members of the Veteran’s unit were sent on temporary duty to Da Nang Airfield, Republic of Vietnam. As for the matter of herbicide agent exposure in Thailand, VA’s Compensation & Pension Service has issued information concerning the use of herbicide agents in Thailand during the Vietnam War. In a May 2010 bulletin, Compensation & Pension Service determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. According to a June 2014 report from the Defense Personnel Records Information Retrieval System (DPRIS), a primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although DOD indicated that the herbicide agent use was commercial in nature rather than tactical (such as Agent Orange), Compensation & Pension Service determined that there was some evidence that herbicide agents of a tactical nature, or that of a greater strength than the commercial variant, were used on the Thailand base perimeters. According to the bulletin, 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 perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. The designated Thailand bases include the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Stated another way, Compensation & Pension Service has determined that special consideration should be given to veterans serving at one of the specified RTAFBs who have provided credible evidence that they were on or near the perimeter of the base. Consideration of herbicide agent exposure on a "facts found or direct basis" is to be conceded for those veterans. Here, the Veteran’s service records show that he served at Nakhon Phanom Royal Thai Air Force Base from February 1972 to February 1973. At the September 2020 hearing, he testified that he worked on the flight line, including on the taxiway, runway, and phase dock area. He reported that his duties included towing airplanes to and from the far end of the runway. The base perimeter was approximately a few hundred feet from where he regularly worked. From his location, he could clearly see both lines of fence on the perimeter, and the tropical setting on the other side. In support, he submitted photographs of the flight line, and maps showing the proximity of his duty area to the base perimeter. Based on all of the above, the Board finds the Veteran has submitted credible corroborating evidence of both his presence in Vietnam, and his exposure to herbicide agents in Thailand. His efforts in this regard are uncommonly well-organized, compelling, and thorough. The demonstration of his receipt of hazardous pay combined with the numerous lay statements support his assertion that he was sent on temporary duty to Vietnam, and the photographs and maps he submitted also support his regular and routine presence near the Nakhon Phanom base perimeter. His statements have been both internally consistent and consistent with the record as a whole. Caluza v. Brown, 7 Vet. App. 498 (1995); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board thus resolves any doubt in favor of the Veteran and finds that the matter of whether he was exposed to herbicide agents is, at a minimum, in equipoise. Where a Veteran has been exposed to an herbicide agent during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). While sarcoidosis is not one of the diseases presumed to be associated with herbicide agent exposure, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regard, the record contains an August 2019 opinion of Dr. K., an August 2019 opinion of Dr. M., and a September 2020 opinion of Dr. S.-M. In August 2019, Dr. M. stated that he had reviewed the service treatment records and was familiar with the Veteran’s medical history. He opined that the current sarcoidosis was most likely (51 percent probability) caused by or a result of the Veteran’s military service. He explained that sarcoidosis is a chronic disease of the immune system of unknown origin. The illness, however, can result from exposure to chemicals or toxins, which enter through the respiratory system, triggering a reaction in the immune system. In August 2019, Dr. K. stated that he had examined the Veteran, reviewed this service treatment records, and was familiar with his medical history. He opined that the current sarcoidosis was most likely (51 percent probability) caused by or a result of the Veteran’s military service. As rationale, he stated that sarcoidosis is a disease characterized by the growth of tiny collections of inflammatory cells, most commonly occurring in the lungs and lymph nodes. Medical literature indicates that this represents a response from the immune system to infections agents, chemicals, dust, or toxins in individuals who are genetically predisposed to developing the disease. In September 2020, Dr. S.-M., a rheumatologist, reviewed the claims file and provided a summary of pertinent medical records. She opined that it is at least as likely as not that sarcoidosis was caused by the Veteran’s in-service exposure to herbicide agents. She explained that medical literature strongly supports the theory that environmental exposures increase the risk of developing sarcoidosis. She noted that the Veteran’s exposure to herbicide agents in both Vietnam and Thailand placed him within a high-risk population for the development of autoimmune disorders, including sarcoidosis. This fact, combined with his lack of family history of the disease and based on the onset and presentation of his symptoms, support a finding that his sarcoidosis was caused by in-service herbicide agent exposure. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection for sarcoidosis is warranted. The opinions of Dr. K., Dr. M., and Dr. S.-M. are fully adequate for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). They based their conclusions on an examination of the claims file, including the Veteran's personal medical history and diagnostic reports, as well as medical literature. They provided a rationale for the conclusions reached. These opinions constitute the entirety of the medical opinion evidence on the matter of direct service connection due to herbicide agent exposure; there is no evidence to the contrary. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In resolving all reasonable doubt in the Veteran’s favor, service connection for sarcoidosis is warranted. As a final matter, to the extent the appeal has been developed as including separate claims for a general pulmonary disability and sarcoidosis, in light of the award herein, service connection cannot also be granted for a general pulmonary disability. Regulations provide that the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. To determine what constitutes the same disability or manifestation for purposes of pyramiding, the Board looks to the symptomatology of the conditions; if the symptomatology of one condition is duplicative of or overlapping with the other condition, awarding separate ratings would constitute pyramiding. Here, 38 C.F.R. § 4.97 Diagnostic Code 6846 provides ratings pertaining to sarcoidosis specifically. It additionally provides that sarcoidosis may be rated as chronic bronchitis and extra-pulmonary involvement under the specific body system involved. The Board thus finds that the entirety of the Veteran’s pulmonary symptoms will be contemplated through the application of this diagnostic code. The record does not reveal the presence of any other diagnosed pulmonary disability with symptoms separate and distinct from those associated with sarcoidosis; rather, the record reflects that his entire pulmonary disability picture is attributable to sarcoidosis. As such, the Board finds that a further award of service connection for a separate, general pulmonary condition as a disability in its own right would be improper and contrary to applicable regulations. 3.Service connection for hypertension is granted. The Veteran has current hypertension, documented, for example, in a September 2020 private medical report of Dr. K. His service treatment records do not document hypertension. However, as established above, the Board finds he was exposed to herbicide agents during military service while serving both in Vietnam and on the perimeter of the Nakhon Phanom Royal Thai Air Force Base. Hypertension is not one of the diseases presumed to be associated with herbicide agent exposure, but the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee, 34 F.3d at 1042. In September 2020, Dr. K., a board-certified cardiologist, reviewed the Veteran’s claims file and provided a summary of pertinent medical findings. He summarized medical literature addressing cardiotoxic agents, including herbicide agents, and their impact on the cardiovascular system. He discussed literature associating the development of hypertension with exposure to particular chemicals, including tetrachlorodibenzo-p-dioxin (TCDD), one of the main components of Agent Orange. Dr. K. noted that the National Academies of Sciences, Engineering and Medicine (NAS) has found sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicide agents used during the Vietnam War. Veterans and Agent Orange: Update 11 (2018). Hypertension was upgraded from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide agent exposure. Dr. K. stated that this study is consistent with several other articles addressing the correlation between TCDD and hypertension. He concluded that it is at least as likely as not that the Veteran’s hypertension is related to his in-service herbicide agent exposure. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the Veteran’s favor, the Board concludes that service connection for the disability is warranted. The opinion of Dr. K. is fully adequate for the purposes of adjudication. See Stefl, 21 Vet. App. at 123. He based his conclusion on an examination of the claims file, including the Veteran's personal medical history, as well as medical literature. He provided a rationale for the conclusions reached. The opinion of Dr. K. constitutes the entirety of the medical opinion evidence on the matter of direct service connection due to herbicide agent exposure; there is no evidence to the contrary. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano, 17 Vet. App. at 312. In resolving all reasonable doubt in the Veteran’s favor, service connection for hypertension is warranted. 4. Service connection for diabetes insipidus as secondary to sarcoidosis is granted. 5. Service connection for a pituitary gland tumor as secondary to sarcoidosis is granted. 6. Service connection for depressive disorder as secondary to sarcoidosis is granted. 7. Service connection for a disability manifested by fatigue as secondary to sarcoidosis is granted. 8. Service connection for bilateral hearing loss as secondary to sarcoidosis is granted. In addition to the regulations discussed above, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). At the September 2020 hearing, the Veteran’s attorney noted that sarcoidosis affects different people differently, and can involve a wide variety of secondary conditions. The Veteran testified that his depression, diabetes insipidus, pituitary gland tumor, fatigue, and hearing loss are among the debilitating conditions he experiences from sarcoidosis. The record shows current diagnoses of depressive disorder, a pituitary gland tumor, diabetes insipidus, a fatigue disability, and bilateral hearing loss. See, e.g., VA examination reports of September 2013 and June 2014; August 2019 private medical report of Dr. K.; August 2010 VA treatment record. With regard to depression specifically, while the June 2014 VA examiner noted the Veteran’s report of depression or excessive worry on the Report of Medical History on entry into service, on clinical examination no psychiatric abnormalities were noted. The Board does not otherwise find clear and unmistakable evidence that a psychiatric disability existed prior to service and as such, the Veteran is presumed to have been sound on entry into service. Legal analysis of the claim as a “preexisting condition” is not applicable. As an additional matter of clarification, while diabetes mellitus is a disease presumed to be associated with herbicide agent exposure, the Veteran does not have diabetes mellitus. Rather, he has been diagnosed with diabetes insipidus, a disease unrelated to diabetes mellitus. As for the etiology of the disabilities, the record contains several opinions. In a March 2014 VA treatment record, the Veteran was diagnosed with pulmonary sarcoidosis manifested by pulmonary nodules and lymphadenopathy. The provider noted that the Veteran’s pituitary mass and diabetes insipidus could be secondary to sarcoidosis. On VA psychiatric examination in June 2014, the examiner opined that the Veteran’s depressive disorder mostly likely developed in response to his significant medical conditions, including his tumor of the pituitary gland and diabetes insipidus. In an August 2019 report of Dr. K., he explained that neurological complications, characterized as neurosarcoidosis, occur in approximately five to ten percent of patients with sarcoidosis. Neurosarcoidosis involves a chronic disease process of the central nervous system where damage to the myelin coating surrounding and protecting nerve fibers disrupts the normal flow of messages from the central nervous system, causing a reduction in or loss of body function. A variety of body functions can be impacted. Direct hypothalamic involvement is known to cause central diabetes insipidus with pituitary enlargement. Cranial mononeuropathy and nerve dysfunction can lead to auditory dysfunction and fatigue. Based on a review of the Veteran’s medical records, he opined that the Veteran has neurosarcoidosis with secondary conditions of a pituitary tumor, diabetes insipidus, a fatigue disability, and bilateral hearing loss. He opined that depression developed as a result of these medical conditions. In an August 2019 report of Dr. M., he opined that the Veteran has diabetes insipidus due to sarcoidosis. He explained that diabetes insipidus is a complication of sarcoidosis. In a September 2020 report of Dr. S.-M., she too opined that the Veteran’s diabetes insipidus and pituitary enlargement are secondary to his sarcoidosis. She noted his rheumatology records indicating such a relationship, and stated that medical literature has associated sarcoidosis with the development of neuroendocrine abnormalities such as these. She stated that diabetes insipidus is one of the more frequently observed neuroendocrine disorders in patients with sarcoidosis. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for depressive disorder, a pituitary gland tumor, diabetes insipidus, a fatigue disability, and bilateral hearing loss as secondary to sarcoidosis. The opinions of the above examiners are persuasive and adequate as they were based on a review of pertinent documents from the claims file and medical literature. Significantly, there is no evidence to the contrary of the findings of these reports. In sum, the evidence is at least in equipoise in showing that the Veteran has depressive disorder, a pituitary gland tumor, diabetes insipidus, a fatigue disability, and bilateral hearing loss caused by sarcoidosis. As service connection based on secondary causation may be granted, a discussion of the matters of secondary aggravation and direct service connection is not necessary. In resolving all reasonable doubt in the Veteran’s favor, secondary service connection is warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.