Citation Nr: 21066925 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-55 216A DATE: November 2, 2021 ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for hypertension is granted. REMANDED Entitlement to service connection for residuals of malaria is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his diabetes mellitus is as at least as likely as not related to herbicide agent exposure in Thailand. 2. Resolving all doubt in the Veteran's favor, hypertension is due to in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2021). 2. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1972. This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during an October 2021 hearing. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (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 present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). In addition, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including diabetes mellitus, shall be presumptively 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, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). 1. Entitlement to service connection for diabetes mellitus The Veteran contends that his ischemic heart disease is due to in-service herbicide agent exposure that occurred while he was stationed in Thailand. The Board concludes that service connection is warranted. October 2018 VA treatment records document a diagnosis of diabetes mellitus that is treated with insulin injections 3 times daily. A 20 percent rating is warranted for diabetes requiring one or more injections of insulin and restricted diet. 38 C.F.R. § 4.120, Diagnostic Code 7913. The Veteran's diabetes mellitus is therefore manifest to at least 10 percent. As the Veteran is claiming service connection on a presumptive basis, resolution of this appeal turns on whether the Veteran had qualifying exposure to herbicides during service. He has not claimed, nor do his military personnel records reflect, any service in the Republic of Vietnam. Therefore, the presumption of herbicide exposure for such service is inapplicable. See 38 C.F.R. § 3.307 (a)(6)(iii). That notwithstanding, the Veteran has documented service in Thailand during the Vietnam Era, showing that he served at U-Tapao Royal Thai Air Force Base as an Aircraft Fuel Systems Technician. Claims involving alleged exposure at such an installation are to be analyzed under the appropriate administrative guidelines given the absence of pertinent statutory and regulatory provisions. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). According to these guidelines, exposure will be conceded for certain veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era. Such veterans include those who were stationed at the Royal Thai Air bases including U-Tapao, and who served in a position or MOS that required duty on the base perimeter, such as security police or dog handler, etc. While records show that the Veteran served at U-Tapao Royal Thai Air Base, he does not have the requisite MOS to concede herbicide exposure based on these provisions. Nevertheless, at the October 2021 hearing, the Veteran reported that his job servicing fuel tanks involved work at the perimeter. He stated that they would pull aircraft off the flight line away from everything else to work on them, including to within 2 or three feet from the perimeter fence. He stated that he worked a 12 hour shift and was often in that location for hours. The Board notes that the Veteran is competent to report details of his regular duties during service. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). A July 2016 Formal Finding memorandum indicates that VA lacked the information the U.S. Army and Joint Services Records Research Center (JSRRC) required to verify herbicide exposure in U-Tapao TAFB, Thailand. The report states that, while the Veteran had submitted information regarding his service at U-Tapao, there was insufficient information to corroborate herbicide agent exposure. In determining whether service connection is warranted for a disability, 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 instead, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit-of-the doubt is afforded to the claimant. 38 C.F.R. § 3.102. Here, the Board finds that evidence is in relative equipoise, and will afford the Veteran the benefit-of-the doubt. The evidence shows that the Veteran served in the U.S. Air Force during the Vietnam Era at U-Tapao Royal Thai Air Force Base. He has submitted credible, competent lay testimony indicating service near the perimeter, to include working within 2 or 3 feet of the fence while servicing aircraft fuel tanks. The July 2016 Formal Finding memorandum indicates that attempts to confirm the Veteran's proximity to the perimeter were inconclusive as there was insufficient information to corroborate exposure. Therefore, the Board finds that the evidence is in relative equipoise. Accordingly, the Board gives the benefit of the doubt to the Veteran, and herbicide agent exposure is conceded. As the Veteran has a current disability of diabetes mellitus that has manifested to at least 10 percent and herbicide agent exposure has been established, service connection is warranted. 38 C.F.R. §§ 3.307, 3.309(e). 2. Entitlement to service connection for hypertension The Veteran contends that his hypertension is related to active service. Granting the benefit of the doubt to the Veteran, the Board concludes that hypertension is at least as likely as not due to the Veteran's conceded herbicide agent exposure and that service connection is therefore warranted. Herbicide exposure has been conceded above. October 2018 VA treatment records document a diagnosis of hypertension. Hypertension is not included on the list of diseases presumed to have been incurred in service in Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the Veteran may still be entitled to service connection on a direct basis if the evidence establishes that hypertension is related to herbicide agent exposure. The Board notes that in its 2018 Update the National Academy of Sciences (NAS) indicated that there is "sufficient" evidence of an association between hypertension and herbicide agent exposure. The NAS therefore upgraded hypertension from its prior classification in the "limited or suggestive" evidence category to the category of "sufficient" evidence of an association. According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. See National Academy of Science, Veterans and Agent Orange: Update 11 (2018), http://nationalacademies.org/hmd/ reports/2018/veterans-and-agent-orange-update-2018.aspx (last visited March 1, 2019). There is no other competent evidence of record addressing the relationship between the Veteran's hypertension and his herbicide agent exposure. Moreover, hypertension has not been related to any other risk factors. The Veteran submitted an April 2015 opinion from his private provider which stated that high blood pressure was attributable to COPD, however the opinion did not provide any rationale for this finding and is therefore inadequate. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board therefore assigns the April 2015 opinion no probative weight. While the NAS evidence does not provide for a definitive association between herbicides and hypertension, it does provide positive evidence regarding said association. When there is a reasonable doubt, such shall be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, and mindful of the laws and regulations, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for hypertension is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for residuals of malaria The Veteran contends that he had malaria in service. The Board finds that the record is unclear regarding whether the Veteran has current residuals of malaria. The Veteran submitted an April 2015 private opinion stating that service medical records showed treatment for malaria in service and that the condition intensified any cold or flu the Veteran contracted. However, in an April 2015 DBQ, the same provider, while noting a 1968 malaria diagnosis and symptoms of occasional chills, found that the Veteran did not have residuals attributable to malaria. Remand for a VA examination is therefore required to determine whether the Veteran has ongoing malaria residuals. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) The Veteran contends that his COPD is due to his conceded exposure to herbicide agents and fuel contaminants in service, and also that it is secondary to hypertension. Service connection for hypertension has been granted above. The Veteran submitted a November 2015 opinion from his primary provider which stated that COPD was attributable to petrochemical and herbicide exposure in service. However, the provider did not provide a rationale for this opinion and it is therefore inadequate for appellate review. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). An August 2016 VA examination found that the Veteran's COPD was not likely due to service, however the opinion did not address either the now conceded herbicide agent exposure or the question of secondary service connection. Remand for a new examination is therefore required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current malaria residuals. The examiner should review the file and provide a complete rationale for all opinions expressed. The following opinions are requested: a) Does the Veteran have a current malaria residuals? b) If malaria residuals are diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of his COPD. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that COPD is related to the Veteran's active service, to include exposure to fuel contaminants and his conceded exposure to herbicide agents, or whether it was caused or aggravated by his service connected hypertension. The examiner is advised that the fact that a VA presumption has not been established for a disability is not dispositive of the issue of nexus and consideration must still be given to the exposure. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.