Citation Nr: 21004758 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-27 912 DATE: January 28, 2021 ORDER Service connection for coronary artery disease and ischemic heart disease is granted. Service connection for diabetes mellitus is granted. Service connection for peripheral neuropathy of both upper extremities is granted. Service connection for peripheral neuropathy of both lower extremities is granted. REMANDED The appeal for entitlement to service connection for hypertension is remanded. The appeal for entitlement to service connection for erectile dysfunction is remanded. The appeal for entitlement to an initial compensable disability rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicides during the course of his service in Thailand. 2. Coronary artery disease and ischemic heart disease may be presumed under law to have been caused by herbicide exposure during service. 3. Diabetes mellitus may be presumed under law to have been caused by herbicide exposure during service. 4. Peripheral neuropathy affecting both arms was proximately caused by complications of diabetes mellitus. 5. Peripheral neuropathy affecting both legs was proximately caused by complications of diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease and ischemic heart disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for peripheral neuropathy of both arms have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for peripheral neuropathy of both legs have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2014 decision by the Agency of Original Jurisdiction (AOJ). The Veteran presented sworn testimony in support of his appeal during a January 2021 hearing before the undersigned Veterans Law Judge. As the claims may be granted in full or require further development, the Board is expediting this decision and a transcript of the hearing will be associated with the claims file at a later time. Service Connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Regulations pertaining to herbicide exposure provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including diabetes mellitus and some types of heart disease, for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304. In this case, the Veteran’s military personnel record shows that he flew seventy-seven combat missions in ten months; it is thus established that he is a Veteran of combat. However, his claim regarding herbicide exposure is not related to combat. Rather, he asserts he was exposed to herbicides during his ten months of service at Korat Royal Thai Air Force Base and one month of temporary duty to U-Tapao Royal Thai Air Force Base. Herbicide exposure The Veteran asserts that he was exposed to herbicides such as Agent Orange while he was stationed at these two Royal Thai Air Force Bases in Thailand. He contends that his coronary artery disease, ischemic heart disease, diabetes mellitus, and peripheral neuropathy were caused by herbicide exposure during service, and requests that the VA apply the herbicide presumptions accorded to Veterans who served in Vietnam to his situation. The AOJ found that herbicide exposure in service was not shown, and denied these claims. As his only theory of entitlement is herbicide exposure, this aspect of the claims must be addressed first. Although Vietnam era Veterans who served in Thailand are not eligible for the established regulatory presumptions of exposure to herbicides, they are nevertheless entitled to a presumption of service connection for herbicide-related conditions if they demonstrate actual exposure to herbicides. 38 C.F.R. § 3.307; Haas v. Peake, 525 F3d 1168, 1197 (Fed. Cir. 2008) overruled on other grounds. VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. In governing manuals and procedures, VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand. The herbicide use was intended to eliminate vegetation and ground cover for base security purposes. VA has acknowledged that the herbicides used on the Thailand base perimeters may have been tactical or a commercial variant of much greater strength and with the characteristics of tactical herbicides. 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 in these cases. For Veterans who served in Thailand during the Vietnam era who were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and served as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise was near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence; herbicide exposure should be acknowledged on a facts-found or direct basis. These provisions apply only during the Vietnam era. The Board must also consider lay statements and other evidence when determining whether a Veteran had exposure to herbicide agents in Thailand. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176, 177 (2016) (quoting COMP. & PENSION SERV. BULL. (U.S. Dep't of Veterans Affairs, Washington, D.C.), May 2010, at 3). In evaluating claims for service connection, due consideration shall be given to the places, types, and circumstances of a Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's service medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). The Veteran’s DD Form 214 shows that he had eleven months of foreign and/or sea service with the 553d Reconnaissance Squadron of the Pacific Air Forces. Other military personnel records confirm he was stationed at Korat and sent to U-Tapao for temporary duty. During the January 2021 hearing on appeal, the Veteran testified that he was frequently on the perimeters of these two bases. He testified he had watched a Bob Hope Show at U.S. Army Camp Friendship, within the perimeter of Korat. He used the softball field and a non-commissioned officer club which was located in the spray drift zone, and he submitted a map showing these areas. He also indicated he had been on an airplane which had a layover at Tan Son Nhut Air Base in Vietnam en route to Japan for a period of rest and relaxation. Upon careful review of the evidence of record, to include the Veteran’s credible hearing testimony and written statements, the Board concludes that the Veteran’s exposure to herbicides during his service in Thailand is established. The Veteran has submitted maps of Korat and additional information showing that he was present in areas recognized as within the drift zone for herbicide spraying, and identified being at U.S. Army Camp Friendship which is shown to be in the perimeter. Exposure during a layover at Tan Son Nhut Air Base is also credible. See generally Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (noting as evidence an email from James S. Howard, an archivist from the Air Force Historical Research Agency, reporting that “[a]s a general rule, military cargo aircraft, especially those engaged in ‘airlines’ would stop over at Ton Son Nhut Air Base, Republic of Vietnam en[ ]route to bases in Thailand. Very few of this sort of flight were made ‘direct’ to bases in Thailand from bases outside Southeast Asia.”) Having affirmatively found herbicide exposure during service, we may proceed to evaluate the Veteran’s claims of service connection for disabilities he claims are related to such exposure. 1. Heart disease The Veteran carries current diagnoses of both coronary artery disease and ischemic heart disease. Both types of heart disease are presumed under law to have been caused by herbicide exposure. Thus, service connection for coronary artery disease and ischemic heart disease is warranted. 2. Diabetes mellitus The Veteran also carries a diagnosis of diabetes mellitus, which is presumed under law to have been caused by herbicide exposure. Thus, service connection for diabetes mellitus is also warranted. 3. Peripheral neuropathy—upper and lower extremities The Veteran has peripheral neuropathy affecting both arms and both legs. Review of the medical evidence shows that his peripheral neuropathy was proximately caused by diabetes mellitus. As such, service connection for peripheral neuropathy secondary to the service-connected disability of diabetes mellitus is warranted. REASONS FOR REMAND 1. Hypertension The current medical evidence indicates that the Veteran’s hypertension developed many years prior to his heart disease and diabetes. Thus, a secondary relationship to a service-connected disability is not indicated here. Direct service connection is also not indicated, as his blood pressure measurement upon separation from service was entirely within normal limits. In any case, the Veteran contends that his hypertension is related to herbicide exposure. The National Academy of Sciences (NAS) has upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. Although hypertension has not been added to the regulatory list of diseases which are presumed to have been caused by herbicide exposure, this NAS upgrade is a significant change to VA’s underlying understanding of hypertension in the context of herbicide exposure meeting the low threshold for obtaining an opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, upon remand, the Veteran’s claims file should be provided to a VA clinician with expertise in hypertension and herbicide exposure for review and an informed medical opinion as to whether it is more, less, or equally likely that the Veteran's hypertension is related to herbicide exposure. 2. Erectile dysfunction According to the medical information in the Veteran’s claims file, a VA examiner has attributed the Veteran’s erectile dysfunction to his recent development of hypogonadism and his smoking history. The opinion is helpful in understanding the Veteran’s medical situation. However, the examiner did not address whether the Veteran’s heart disease or diabetes have aggravated or contributed to his erectile dysfunction. Because these two disabilities are now service connected, the question of secondary service connection and/or aggravation is now ripe for consideration. Upon remand, the Veterans’ claims file should be provided to an appropriate clinician for an informed medical opinion as to whether the Veteran’s erectile dysfunction is related in any way to his service-connected disabilities. 3. Bilateral hearing loss During the January 2021 hearing on appeal, the Veteran testified that his hearing acuity has worsened since his most recent VA compensation examination in 2014. Given his testimony that his hearing is worse, another VA examination is warranted to obtain information regarding his current hearing acuity. As the appeal must be remanded, the Veteran’s VA treatment records should be updated for the file. IF the Veteran wishes the VA to consider any additional private medical records pertaining to his hypertension, erectile dysfunction or bilateral hearing loss, he is encouraged to work with his attorney and the AOJ to obtain such records for inclusion in his claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2018 to the Present. 2. Obtain an addendum opinion (based upon a complete records review) from an appropriate clinician regarding whether the Veteran’s hypertension is more, less, or equally likely to be related to the Veteran’s legally presumed herbicide exposure in service. The examiner should specifically comment upon the NAS findings summarized above, and in the opinion apply these findings to the Veteran’s particular medical situation. The complete rationale for the conclusion reached should be fully explained so that the Veteran and the Board can understand it. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s erectile dysfunction is more, less, or equally likely caused by or aggravated (a medically discernible increase in disability even if temporary) by service-connected disability, including coronary artery disease, ischemic heart disease, and diabetes mellitus, to include medications taken to treat these disorders. IF the reviewer deems that a clinical examination and/or further tests and studies would be helpful to reaching a fully informed opinion, then such examination/tests/studies should be arranged. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.