Citation Nr: 21066440 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 19-09 106 DATE: November 1, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to disability rating in excess of 20 percent for service-connected lumbosacral strain is denied. REMANDED Entitlement to service connection for a heart condition is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Appellant's favor, the Veteran is found to have performed duties near the perimeter of Ubon Royal Thai Air Force Base (RTAFB) and is, therefore, found to have been exposed to herbicide agents during service. 2. The Veteran's diabetes mellitus, type II is presumed related to his in-service exposure to herbicide agents. 3. The Veteran filed his claim for increase on February 29, 2016; unfortunately, the Veteran passed away on May 22, 2016 and no information related to the nature and severity of the Veteran's back disability was submitted. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, as secondary to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to October 1969. In May 2016, the Veteran passed away. The appellant is the Veteran's surviving spouse. In January 2020, this matter was before the Board, at which time it was remanded for the AOJ to address a pending claim for substitution. In February 2020, substitution was granted; accordingly, the appellant has been substituted as the claimant in this appeal. In June 2020, the Board reopened the claim for entitlement to service connection for diabetes mellitus and remanded all claims for further development. Specifically, the Board remanded to obtain all CAPRI and private treatment records and to verify the Veteran's herbicide exposure. In July 2020, the appellant stated that there were no more private treatment records left to submit. Additionally, the August 2021 SSOC indicated that there were no CAPRI records to submit. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Entitlement to service connection for diabetes mellitus, type II VA law and regulations provide a presumption of service connection for certain diseases that are associated with exposure to herbicide agents, including prostate cancer and respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and that become manifest within a specified time period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6); 3.309(e). Special consideration of herbicide agent exposure on a facts-found or direct basis is also extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases, including the Ubon Royal Thai Air Force Base (RTAFB), anytime between February 28, 1961 and May 7, 1975. This allows for presumptive service connection of the diseases associated with herbicide agent exposure. 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's DD Form 214 reflects that his military occupational specialty was an aircraft maintenance specialist. Additional service personnel records, such as his performance review, clearly show that the Veteran was stationed at the Ubon Royal Thai Air Force Base from June 1968 until June 1969 and served as a Crew Chief in the 435 tactical fighter squadron. Therefore, the remaining question is whether the Veteran was exposed to herbicide agents while stationed in Thailand. After resolving all reasonable doubt in favor of the appellant, the Board finds that the Veteran's job duties brought him near the perimeter of the Ubon RTAFB, and he was likely exposed to herbicide agents during that service. The Veteran's personnel records include a performance report from the period he was stationed at the Ubon RTAFB on the 435 tactical fighter squadron as a Crew Chief. His duties included maintenance on all aircraft and scheduling and monitoring all work by specialists and support personnel on said aircraft. The reviewer stated that the Veteran "does not hesitate to assist other members of the flight." The appellant argues that the Veteran's duties required him to be on the flight line near the perimeter. In a February 2019 lay statement, she stated that since her husband was a crew chief, he "spent most of his time out on the flight line which means he was near the air base perimeter and was exposed to agent orange." The Board finds there is no basis in the record to question the appellant's contentions. Indeed, the personnel records suggest the Veteran's work on the flight line is consistent with that which would be expected given his military occupational specialty and the period in which he served. The Board notes a May 2021 VA memorandum finding insufficient information to verify the Veteran's alleged herbicide exposure. The memorandum stated that there was no specific evidence to support the "claimed exposure incident." However, the Board finds that this development is not responsive to the June 2020 remand directives. Notably, the June 2020 remand directed VA to "determine whether his duties would have been consistent with exposure to herbicide agents," and not whether there was a specific "claimed exposure incident." Accordingly, the Board finds that the May 2021 VA memorandum warrants limited probative weight. After a review of the above, and in affording the appellant the benefit of the doubt, the Board finds that the Veteran was at least as likely as not exposed to herbicide agents while stationed in Thailand. Further, the Veteran's treatment records reflect that he was diagnosed with diabetes mellitus, type II. As diabetes mellitus, type II, is a presumptive disease associated with exposure to certain herbicide agents, they are presumed related to the Veteran's period of active service. Accordingly, service connection for diabetes mellitus, type II, is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to a disability rating in excess of 20 percent for lumbosacral strain The Veteran's low back disability is rated at 20 percent under Diagnostic Code 5237. Spine disabilities are rated pursuant to the criteria of a General Rating Formula for Diseases and Injuries of the Spine governing Diagnostic Codes 5235 to 5243, set forth in 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Any objective neurologic abnormalities associated with a disability of the spine are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one of more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. The Veteran filed his claim for increase on February 29, 2016. Unfortunately, the Veteran passed away on May 22, 2016. Given this proximity, no information was submitted regarding the nature and severity of the Veteran's lumbosacral strain, to include providing the Veteran an opportunity to participate in a VA examination. As there is no evidence in the claims file regarding the nature and severity of the Veteran's lumbosacral strain, aside from the Veteran's implied belief that his condition worsened, the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board notes the submission of a February 2015 treatment record noting that the Veteran had a fusion of the C5 and C6 vertebrae and an additional diagnosis of degenerative disc disease of the cervical spine. However, there is no indication that this is related to his service-connected lumbosacral strain. Even if it was, it does not contain the information necessary to substantiate a higher rating, to include estimated range of motion testing. As there is no medical evidence in the claims file suggesting that the Veteran's lumbosacral strain had worsened during the pendency of the appeal or within one year prior, the claim must be denied. REASONS FOR REMAND Entitlement to service connection for a heart disability The Veteran's treatment records show that he was diagnosed with several heart disabilities including congestive heart failure, valvular heart disease, hypertension, and atrial fibrillation. As discussed above, the Veteran has been presumed exposed to herbicides and service-connected for diabetes mellitus, type II. The Board notes that the heart disabilities listed above are not presumptively related to service pursuant to 38 C.F.R. § 3.309(e). However, this does not preclude a Veteran from proving entitlement to service connection directly. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). There is no VA examination in the claims file which opines whether any of the Veteran's heart disabilities were directly caused by service, to include his now presumed exposure to herbicides, or secondarily caused or aggravated by his now service-connected diabetes mellitus, type II. Accordingly, remand is warranted to obtain these medical opinions. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The matters are REMANDED for the following action: Obtain a VA medical opinion regarding the nature and etiology of the Veteran's heart disability, to include congestive heart failure, valvular heart disease, hypertension, and atrial fibrillation. The entire claims file, to include a copy of this remand, must be reviewed in conjunction with the opinion. The examiner must address the following questions: (a) Whether it is at least as likely as not that the Veteran's heart disability began during service, within a year of service, or is otherwise related to service, to include his presumed exposure to herbicides. In rendering this opinion, the VA examiner must consider the February 2016 Disability Benefits Questionnaire. Additionally, the examiner must consider and discuss the National Academy of Sciences 2018 conclusion that there is "enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). (b) Whether it is at least as likely as not that the Veteran's heart disability was caused by his now service-connected diabetes mellitus, type II. (c) Whether it is at least as likely as not that the Veteran's heart disability was aggravated by his now service-connected diabetes mellitus, type II. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested opinion cannot be provided without resorting to mere speculation, the examiner should explain why that is so. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, Associate 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.