Citation Nr: 21061851 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 19-08 032 DATE: October 5, 2021 ORDER Entitlement to service connection for type 2 diabetes mellitus (diabetes), to include as due to herbicide agent exposure, for purposes of accrued benefits, is granted. Entitlement to service connection for erectile dysfunction, to include as due to diabetes, for purposes of accrued benefits, is granted. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to diabetes, for purposes of accrued benefits, is granted. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to diabetes, for purposes of accrued benefits, is granted. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to diabetes, for purposes of accrued benefits, is denied. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to diabetes, for purposes of accrued benefits, is granted. FINDINGS OF FACT 1. The record evidence is at least in relative equipoise as to whether the Veteran was actually exposed to herbicide agents while serving in Thailand during the Vietnam era. 2. Resolving all reasonable doubt in the appellant's favor, the Veteran's diabetes was incurred in service as a result of his exposure to agent orange. 3. Resolving all reasonable doubt in the appellant's favor, the Veteran's erectile dysfunction were due to or aggravated by his now service-connected diabetes. 4. Resolving all reasonable doubt in the appellant's favor, the Veteran's bilateral upper and lower peripheral neuropathy disabilities were due to or aggravated by his now service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for service connection for type 2 diabetes mellitus (diabetes), to include as due to herbicide agent exposure, for purposes of accrued benefits, have been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for erectile dysfunction, to include as due to diabetes, for purposes of accrued benefits, have been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for service connection for left upper extremity peripheral neuropathy, to include as due to diabetes, for purposes of accrued benefits, have been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for right upper extremity peripheral neuropathy, to include as due to diabetes, for purposes of accrued benefits, have been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 5. The criteria for service connection for right lower extremity peripheral neuropathy, to include as due to diabetes, for purposes of accrued benefits, have been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 6. The criteria for service connection for left lower extremity peripheral neuropathy, to include as due to diabetes, for purposes of accrued benefits, have been met. 38 U.S.C. § 5107 (b); 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 had active service from February 1966 to November 1969 and from February 1984 to February 1988. The Board notes the Veteran's meritorious service to the United States, as evidenced by the numerous awards and medals received during his distinguished military career. The Veteran died on September [REDACTED], 2020. The appellant, his surviving spouse, filed an application for dependency and indemnity compensation (DIC) on September 15, 2020, which constituted an application for substitution; VA sent her a notice in January 2021 indicating acceptance of her claim to substitution. See 38 C.F.R. § 3.1010. At the time of his death, the Veteran had an unfulfilled hearing requested. In September 2021, the appellant presented testimony to the undersigned during a Board hearing. Consideration of the testimony presented has been considered and incorporated in the fully favorable decision below. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases, including ischemic heart disease, will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). With regard to the Veteran's confirmed service in Thailand, the Board notes that there are no statutory or regulatory presumptions regarding herbicide exposure in Thailand. However, VA may presume, in the absence of sufficient evidence to the contrary, that a veteran who served in Thailand during the Vietnam War Era was exposed to herbicide agents if: (1) the veteran was in the Air Force, (2) the veteran served at the RTAFB of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and (3) the veteran served as a security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near a base perimeter, as shown by the veteran's MOS, daily work duties, performance evaluations, or other credible evidence. 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. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Diabetes mellitus In this case, the appellant asserts that the Veteran was exposed to herbicide agents while performing his duties during his service in Thailand and his diabetes mellitus is due to that exposure. See Transcript of September 2021 Board Hearing. At the outset, there is evidence of record showing that the Veteran is diagnosed with diabetes mellitus, type 2. See May 2016 Private Diabetes Mellitus Disability Benefits Questionnaire (DBQ). Therefore, resolution of the issue on appeal turns on whether the Veteran is determined to have been exposed to herbicides in service or, is his diabetes otherwise related to service. Initially, the Board notes that the appellant has asserted that the Veteran's exposure to herbicides occurred while stationed in Thailand. The Veteran's service records confirm that he served in Thailand at Udorn Royal Thai Air Force Base (RTAFB) from November 1968 to November 1969. It was also noted that he performed preflight and postflight inspections, performs unscheduled maintenance, launches, recovers, and services aircrafts. However, there is no specific mention of exposure to herbicides in the Veteran's service records. Relevant to this appeal, VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a March 2014 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. 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 use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. Given this information, C&P has determined that special consideration should be given to Veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those Veterans. In making this determination, C&P stated, "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." C&P indicated that herbicide exposure should be acknowledged on a fact found or direct basis if a Veteran served at one of the bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the base perimeter, as shown by military occupation specialty (MOS), performance evaluations, or other credible evidence. The appellant has asserted that the Veteran was exposed to agent orange during his time stationed at the Udorn RTAFB. As noted, the Veteran's personnel records show he performed preflight and postflight inspections, performs unscheduled maintenance, launches, recovers, and serviced aircrafts. See Military Personnel Record. The appellant testified that the Veteran's duties placed him near the perimeter. Further, she stated that during the course of his deployment, he would fly in aircraft that landed in Vietnam in support of operations. The Board finds that, in this specific case, the appellant's testimony regarding the Veteran's duties in service in Thailand are credible and consistent with the circumstances of his service, including the duties associated with his military occupational specialty, and the Board finds no reason to doubt her credibility. The Board acknowledges that the Veteran did not serve in a position which VA has conceded as being exposed to herbicides on that military base. However, the Board finds that the Veteran's MOS likely placed him on the flight line on a nearly daily basis, which would have required him to be on or in close proximity to the base perimeter. The Board finds that based on the appellant's testimony and the Veteran's statements made prior to his death are competent and credible regarding having served near the base perimeter, along with the nature of the Veteran's military duties, all reasonable doubt should be resolved in his favor. Thus, it is at least as likely as not that the Veteran meets the criteria for conceding exposure to herbicides during his active military service in Thailand. Accordingly, service connection for diabetes mellitus is granted based on presumed exposure to herbicide agents. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 3.309(e). 2. Erectile dysfunction, and bilateral upper and lower extremity peripheral neuropathy The appellant is also seeking entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy and erectile dysfunction that she believes is due to or aggravated by the now service-connected diabetes mellitus. When determining entitlement to service connection, the Board is required to consider all theories of entitlement reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (the Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence). Here, however, these claims are entirely predicated on the notion they are secondary to the now service-connected diabetes mellitus. Neither the appellant nor the Veteran, prior to his death, have alleged that any of these disorders were directly or even presumptively incurred in service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Moreover, the evidence does not support such an assertion as the first noted diagnoses were not until 2016. As such, the Board finds that the appellant is seeking entitlement to service connection for the purposes of accrued benefits for these disorders on a secondary basis only. The Board notes that the May 2016 Private Diabetes Mellitus DBQ provided diagnoses of bilateral upper and lower extremity peripheral neuropathy that is at least as likely as not due to or aggravated by the diagnosed diabetes mellitus. There are no conflicting opinions of record. As for the claimed erectile dysfunction, the Veterans VA treatment records do not show a diagnosis of such prior to his death. However, the Veteran's wife, the appellant, testified during the Board September 2021 hearing that he did, in fact, suffer from erectile dysfunction. The Board finds no reason to doubt her credibility. Based on the foregoing and resolving all reasonable doubt in the appellant's favor, service connection for bilateral upper and lower extremity peripheral neuropathy and erectile dysfunction is granted on a secondary basis. See 38 C.F.R. § 3.310 K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.