Citation Nr: A21016303 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 210826-182154 DATE: October 4, 2021 ORDER Readjudication for service connection for a transient ischemic attack is warranted. Service connection for diabetes mellitus type II is granted. Service connection for prostate cancer is granted. Service connection for hypertension is granted. Service connection for ischemic attacks is granted. FINDINGS OF FACT 1. The evidence received after the December 2020 rating decision is new and relevant to the issue of service connection for a transient ischemic attack. 2. The Veteran was exposed to hazardous chemicals, including herbicide agents and PCB during active service. 3. The Veteran's diabetes mellitus type II is presumed to be related to exposure to herbicide agents. 4. The Veteran's prostate cancer is presumed to be related to exposure to herbicide agents. 5. The Veteran's hypertension is related to his exposure to herbicide agents and PCB. 6. The Veteran's transient ischemic attacks are proximate to his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection of ischemic attacks have been met. 38 C.F.R. § 3.156 (d), 3.2501. 2. The criteria to establish service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria to establish service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria to establish service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria to establish service connection for ischemic attacks have been met. 38 U.S.C. §§ 1110, 5107(b); 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 November 1965 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) from two rating decisions in June 2021 from a Department of Veterans Affairs (VA) regional office (RO). One of the decisions was a Higher-Level Review of March 2021 rating decision readjudicating and denying service connection for diabetes mellitus, prostate cancer, and hypertension. The other rating decision was a Higher-Level Review of an April 2021 rating decision denying readjudication of the issue of service connection for ischemic attacks. In August 2021, the Veteran requested a review of both decisions by the Board. The Veteran selected the Direct Review docket. No evidence other than that available for the underlying rating decisions may be considered. Readjudication 1. Readjudication for Service Connection of Ischemic Attacks is Warranted In March 2021 the Veteran submitted a supplemental claim for service connection of ischemic attacks. This matter was previously adjudicated in a December 2020 rating decision. A claim may be readjudicated if new and relevant evidence is received since the last adjudication. New evidence is that which is received since the last decision. 38 C.F.R. §§ 3.2501. Relevant evidence is defined as "evidence that tends to prove or disprove a matter in issue." 38 C.F.R. §§ 3.2501. If new and relevant evidence is presented or secured with respect to a supplemental claim, the VA shall readjudicate the claim taking into consideration all of the evidence of record. Since the December 2020 denial, the Veteran submitted a February 2021 private oncology report and a March 2021 private cardiologist report. These opinions directly address the Veteran's exposure to herbicide agents and other hazardous chemicals, such as PCB, in service and their relationships to the development of ischemic attacks. They also address hypertension as a cause of the ischemic attacks. This evidence is new because it was received after the last adjudication. This evidence is relevant as it tended to show an in-service event and a nexus between the Veteran's service and ischemic attacks. Therefore, new and relevant evidence was received and readjudication is warranted. Service Connection Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Certain diseases may be presumed to be service connected if manifested in a Veteran who was exposed to herbicide agents in service. Ischemic heart disease (including atherosclerotic cardiovascular disease) is associated with herbicide agent exposure for purposes of the presumption. 38 C.F.R. § 3.307, 3.309(e). Diabetes mellitus and prostate cancer are among the diseases that are presumed to be associated with herbicide exposure. Id. 2. Service Connection for Diabetes Mellitus is Granted. 3. Service Connection for Prostate Cancer is Granted The Veteran contends that his diabetes mellitus type II and prostate cancer were caused by exposure to herbicide agents. The December 2020 Rating Decision entered favorable findings that the Veteran has the current disabilities of diabetes mellitus and prostate cancer. The Veteran reports exposure to herbicide agents while station at Aberdeen Proving Ground from 1966 to 1967. Personnel records confirm the Veteran was stationed at Edgewood Arsenal within Aberdeen Proving Ground. Further they show he was a chemical worker and decontamination specialist. In December 2020, the Compensation Service Records Research Center found that herbicide agents had been used between May 1 and September 30, 1965 at Aberdeen Proving Grounds. Further, studies cited by a private oncology consultant in February 2021 note that dioxin within herbicide agents is a persistent organic pollutant and remains in the environment for at least ten years. The consultant concluded that the Veteran's service six months after the use of the herbicide agents caused the Veteran's exposure to herbicide agents. Considering the Veteran's timing of service, the use of herbicide agents, and the report from the private oncology consultant, the evidence is at least in equipoise that the Veteran was exposed to herbicide agents. A nexus between diabetes mellitus and herbicide agents is presumed. 38 C.F.R. § 3.309(e). A nexus between prostate cancer and herbicide agents is presumed. 38 C.F.R. § 3.309(e). Therefore, affording the Veteran the benefit of the doubt, service connection for diabetes mellitus and prostate cancer is granted. 4. Service Connection for Hypertension is Granted. The Veteran contends his hypertension is related to exposure to herbicide agents and hazardous chemicals including PCB. The December 2020 Rating Decision made the favorable finding that the Veteran has a current disability of hypertension. As noted above, the evidence is at least in equipoise as to herbicide agent exposure. Similarly, the evidence is at least in equipoise as to PCB exposure. The Veteran reported exposure during decontamination training. His personnel record shows training in chemical handling and that he served as a decontamination specialist. The Veteran is competent to testify to his own experiences and his training indicates he is competent to identify certain chemicals. Further, the private oncologist report from February 2021 indicates that Aberdeen Proving Ground has been identified by the EPA as having been contaminated with PCB. Considering the testimony, personnel records, and the sources cited by the private oncologist, it is at least as likely as not the Veteran was exposed to PCB as well as herbicide agents. The February 2021 private oncologist report indicates that multiple studies have found a causal relationship between herbicide agents and hypertension as well as PCBs and hypertension. Further, when considering the Veteran' s other risk factors, the private consultant found to a high-degree of certainty that the Veteran's hypertension was related to his exposure to herbicide agents and PCBs. This opinion is well supported and is not contradicted by the record. Further, a second opinion in March 2021 by a private cardiology consultant came to the same conclusion based on a review of the records and relevant medical studies that the Veteran's exposure to herbicide agents and PCB was at least as likely as not related to his development of hypertension. These are the only competent opinions related to hypertension in the claims folder. Thus, the evidence is at least in equipoise as to whether the Veteran's exposure to herbicide agents and PCB caused his hypertension. Therefore, all the elements to establish service connection have been satisfied and service connection for hypertension is granted. 5. Service Connection for Ischemic Attacks is Granted. The Veteran contends his ischemic attacks are related to his exposure to herbicide agents and PCB in service. Additionally, a private opinion submitted by the Veteran indicates the Veteran's service-connected hypertension is the proximate cause of his ischemic attacks. The December 2020 Rating Decision made the favorable finding that the Veteran has a current disability of ischemic attacks (sometimes referred to as strokes). The evidence is at least in equipoise that the Veteran was expose to herbicide agents and PCB. There is no competent evidence of a causal relationship between the Veteran's exposure to herbicide agents and PCB and the current disability of ischemic attacks. The Veteran argues that his exposure and diagnosis are related, but he is not competent to provide medically complex opinions as to the etiology of the condition. The February 2021 and March 2021 opinions discussed above do not indicate a direct link between the exposure and ischemic attacks. Although the March 2021 opinion indicates a positive association between the exposure and ischemic heart disease (IHD), the Veteran is not claiming service connection for IHD. Service connection on a direct basis may not therefore be granted on this basis. However, service connection on a secondary basis is supported by the record. The Veteran has a current disability of ischemic attacks. Additionally, as found above, the Veteran's hypertension is service connected. The March 2021 opinion indicates that the Veteran's development of hypertension is at least as likely as not the cause of his ischemic attacks. The opinion discusses the Veteran's medical history and his risk factors and considered the whole record. This is a competent opinion and it is not contradicted by the record. Therefore, service connection for ischemic attacks is granted. (CONTINUED ON NEXT PAGE) The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). See 38 C.F.R. § 4.14 (the evaluation of the " same disability " or the " same manifestation " under various diagnoses is to be avoided) and Esteban v. Brown, 6 Vet. App. 259 (1994) (while pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. § 1155 and 38 C.F.R. § 4.14, it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, Counsel The Board's action is binding only with respect to this matter and is not precedential or establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.