Citation Nr: 21065525 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-22 028 DATE: October 26, 2021 ORDER Entitlement to service connection for diabetes mellitus type II is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for cyst growth in mouth with loss of teeth is remanded. Entitlement to service connection for left hand condition (also claimed as lack of circulation) is remanded. Entitlement to service connection for restricted breathing condition is remanded. FINDINGS OF FACT 1. The Veteran served multiple tours on different bases in Thailand during the Vietnam era to repair aircraft and the Board presumes that the Veteran was exposed to herbicide agents during active service. 2. The Veteran has a current diagnosis of diabetes type II. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1962 to October 1970 and from March 1972 to October 1983. Service Connection Entitlement to service connection for diabetes mellitus type II The Veteran contends that he was exposed to herbicide agents during active service in Thailand during the Vietnam era and as a result developed diabetes mellitus type II. After a thorough review of the evidence, the Board finds, resolving reasonable doubt in favor of the Veteran, that entitlement to service connection for diabetes mellitus type II is warranted. The Board notes that the Veteran had requested a Board hearing for this issue and that hearing was offered, rescheduled, and the Veteran eventually did not appear for the rescheduled September 2021 hearing. While the Veteran's representative is requesting clarification on the hearing, the Veteran was properly informed of the rescheduled hearing, but did not appear. This notice included a July 2021 letter informing the Veteran of the date, time, and place of the hearing. Further, prior to the hearing, in September 2021, a VA employee attempted to contact the Veteran by telephone to confirm that he would attend the hearing. A voice mail message was left for the Veteran; however, the record does not show that the Veteran either confirmed that he would appear or requested postponement of the hearing prior to the date of the hearing. While the Veteran's represented suggests that the Veteran be contacted and the "state of his desired hearing be clarified," the Board finds that appropriate steps were taken to inform the Veteran of the September 2021 hearing, the Veteran did not report for the hearing, and the Veteran has not alleged or presented a specific cause for his absence. Accordingly, the Board will proceed with adjudication of the appeal. The record reflects that the Veteran's service treatment records (STRs) are unavailable per VA memorandum dated November 2016. When a veteran's records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the veteran in the development of his claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. at 367. In part, such a heightened duty obligates VA to advise a veteran to submit alternative forms of evidence in support of his claim. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Dixon v. Derwinski, 3 Vet. App. 261 (1992). In a November 2016 letter to the veteran, VA informed the Veteran of the missing service treatment records and the opportunity to submit alternative supporting documents. The Veteran was able to provide some pages of service personnel records. The service personnel records provided by the Veteran, as well as testimony from the Veteran during a DRO hearing in 2017, supports that the Veteran was deployed to Thailand during 1969 to 1970 and again in 1972, to multiple bases including U-Tapao, Udorn, and Nakhom Phanom. The Veteran's records state that he was transferred to "repair battle damaged aircraft." The Veteran's DD-214 indicates he received the Vietnam Service Medal with three bronze service stars, the Republic of Vietnam Gallantry Cross with Palm, and the Republic of Vietnam Campaign Medal. In the 2017 DRO hearing, the Veteran explained that he was in Thailand in 1969 to 1970 to support Operation Ranch Hand, the mission to spray Agent Orange in the Vietnam region. The Veteran's personnel records indicate that in 1972 he was transferred to Thailand to support Operation Bullet Shot, the B-52 program. According to the Veteran, he worked on aircraft involved in Operation Ranch Hand and also on aircraft that were parked at the perimeter areas on Thai bases. He argues that the nature of his service in Thailand placed him at a location where, as has been recognized by the Air Force, harmful exfoliants were used. The Veteran's personnel records document that he was an air frame repairman with training in sheet metal work and welding while in the Air Force. Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease becomes manifest to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. These diseases include diabetes mellitus type II 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). Exposure to an herbicide agent may be considered on a facts-found basis if a veteran served with the U.S. Air Force in Thailand during the Vietnam era at one of the Royal Thai Air Force bases as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. 38 C.F.R. §§ 3.307(a)(6)(iv). Likewise, a member of the Air Force who "regularly and repeatedly" maintained C-123 aircraft (defined as being assigned to an Air Force squadron permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as flight or ground maintenance on such aircraft) known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. §§ 3.307(a)(6)(v). The Veteran's competent and credible statements indicate (and no evidence contradicts) that his duties placed him on or near the base perimeter, possibly working with aircraft exposed to herbicide agents, where herbicide agents are known to have been used, and that he was on multiple bases for a combined total of time lasting roughly 18 months or longer. Therefore, exposure to an herbicide agent is found. Because the Veteran's diabetes mellitus type II is listed as a disease for which service connection may be presumed based on exposure to an herbicide agent, the Board finds that entitlement to service connection is warranted based on resolving reasonable doubt in favor of the Veteran. 38 U.S.C. §§ 1101, 1110, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The medical evidence of record shows that the Veteran has been diagnosed with hypertension. The Veteran's STRs are unavailable. The Veteran has not been provided a VA examination for this condition. The RO should schedule a VA examination with related opinion for hypertension. 2. Entitlement to service connection for cyst growth in mouth with loss of teeth is remanded. The available medical evidence of record does not show a diagnosed condition of cyst growth in the mouth with loss of teeth. The Veteran's STRs are unavailable. The Board notes that the Veteran said in the 2017 DRO hearing that he is treated only at VA for his medical care. The most recent CAPRI records are not in the claims file. 3. Entitlement to service connection for left hand condition (claimed as lack of circulation) is remanded. The Veteran's most recent VA treatment records are not of record. The Veteran does not have available STRs. The Board notes that the RO denied this claim for lack of diagnosed condition. The Veteran's few available service personnel pages reference a vasomotor instability issue. 4. Entitlement to service connection for restricted breathing is remanded. The Veteran had a VA examination for this condition in 2017. The Veteran contends that this condition is a result of asbestos exposure. The Veteran testified at the DRO hearing in 2017 that as an air frame repairman, he worked with materials like fiberglass or silicone asbestos plastic, to include activities like "cutting, drilling, sanding, countersinking, and fitting these panels." Given that the Veteran's service treatment records are missing and the available personnel records document that he worked for 20 years in service as an air frame mechanic with training in sheet metal and welding work, the Board finds the Veteran's statements with regard to exposure to asbestos-containing material credible. As the Board is remanding the appeal to determine if there are outstanding VA treatment records, the Board will defer action on the Veteran's claim for service connection for restricted breathing to ascertain whether any potentially relevant medical records pertaining to this issue are contained in any VA treatment records received as a result of this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA medical treatment records since August 2016 to present. 2. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following and is advised that the Veteran's service treatment records are unavailable, and the examiner should elicit statements from the Veteran about his experiences with medical treatment during active service. The examiner is asked to respond to the following: a. Direct service connection Is hypertension at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? b. Chronic diseases under §§ 3.303(b) and 3.309(a) Is it at least as likely as not that hypertension (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? c. Presumed herbicide agent exposure without presumptive disease Is hypertension at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the condition is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner is advised that the Veteran is presumed to have been exposed during service to herbicide agents. 3. Schedule the Veteran for a VA examination for his cyst growth in mouth with loss of teeth. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following and is advised that the Veteran's service treatment records are unavailable, and the examiner should elicit statements from the Veteran about his experiences with medical treatment during active service. The examiner is asked to respond to the following: Direct service connection Is there a diagnosed cyst of the mouth with loss of teeth condition that is at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination for his left hand condition claimed as lack of circulation. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following and is advised that the Veteran's service treatment records are unavailable, and the examiner should elicit statements from the Veteran about his experiences with medical treatment during active service. The examiner is asked to respond to the following: a. Direct service connection Is there a diagnosed left hand condition (claimed as lack of circulation) that is at least as likely as not related to service? Please reference the vasomotor instability medical notation in the Veteran's service personnel records. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? b. Chronic diseases under §§ 3.303(b) and 3.309(a) Is it at least as likely as not that a left hand condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? c. Presumed herbicide agent exposure without presumptive disease Is a left hand condition at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the is not on the list of diseases that are presumptively associated with exposure to herbicide agents. The examiner is advised that the Veteran is presumed to have been exposed during service to herbicide agents. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.