Citation Nr: 21067529 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-45 513 DATE: November 4, 2021 ORDER Service connection for atherosclerotic cardiovascular disease, a type of ischemic heart disease, status-post myocardial infarction, is granted. Service connection for diabetes mellitus type II is granted. Service connection for prostate cancer status post prostatectomy is granted. Service connection for erectile dysfunction is granted. Service connection for diabetic nephropathy is granted. Service connection for right lower extremity peripheral neuropathy is granted. Service connection to left lower extremity peripheral neuropathy is granted. Service connection for right upper extremity peripheral neuropathy is denied. Service connection for left upper extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The currently diagnosed atherosclerotic heart disability status-post myocardial infarction is presumed to be related to in-service exposure to herbicide agents. 2. The currently diagnosed diabetes mellitus type II is presumed to be related to in-service exposure to herbicide agents. 3. The currently diagnosed prostate cancer status-prostatectomy is presumed to be related to in-service exposure to herbicide agents. 4. The currently diagnosed erectile dysfunction was caused by the service-connected prostate cancer. 5. The currently diagnosed diabetic nephropathy was caused by the service-connected diabetes mellitus. 6. The currently diagnosed right lower extremity diabetic peripheral neuropathy was caused by the service-connected diabetes mellitus. 7. The currently diagnosed left lower extremity diabetic peripheral neuropathy was caused by the service-connected diabetes mellitus. 8. The preponderance of the evidence is against finding that the Veteran has right upper extremity peripheral neuropathy. 9. The preponderance of the evidence is against finding that the Veteran has left upper extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for service connection for atherosclerotic cardiovascular disease status post myocardial infarction have been met. 38 U.S.C. § 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus type II have been met. 38 U.S.C. § 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. 3. The criteria for service connection for prostate cancer status post prostatectomy have been met. 38 U.S.C. § 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. 4. The criteria for service connection for erectile dysfunction secondary to the service-connected prostate cancer have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for diabetic nephropathy secondary to the service-connected diabetes mellitus have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for right lower extremity diabetic peripheral neuropathy secondary to the diabetes mellitus have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for service connection for left lower extremity diabetic peripheral neuropathy secondary to the diabetes mellitus have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 9. The criteria for service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to May 1977 and from April 1982 to November 1985, including multiple periods of service in Thailand. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Of note, the Board previously issued a decision in October 2021 addressing the service connection claim for Parkinson's disease under the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). In July 2021, the Veteran testified before the undersigned Veterans Law Judge via a virtual hearing. A copy of the hearing transcript is of record and has been reviewed. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). A layperson is competent to report on the onset and continuity of her current symptomatology. See 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). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Service connection for atherosclerotic cardiovascular disease, a type of ischemic heart disease, status-post myocardial infarction, is granted; 2. Service connection for diabetes mellitus type II is granted; and 3. Service connection for prostate cancer status-post prostatectomy is granted. Entitlement to service connection for atherosclerotic cardiovascular disease status post myocardial infarction, diabetes mellitus, and prostate cancer status post prostatectomy are discussed herein together. VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide agent exposure on a facts-found or direct basis are extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence, herbicide agent exposure should be conceded on a facts-found or direct basis. The diseases that are entitled to presumptive service connection based on herbicide agent exposure are listed in 38 C.F.R. § 3.309(e). Presumptive service connection based on herbicide agent exposure is available, in pertinent part, for ischemic heart disease (also known as coronary artery disease), diabetes mellitus type II, and prostate cancer. As an initial matter, the Veteran has current diagnoses of atherosclerotic cardiovascular disease, a type of ischemic heart disease, status-post myocardial infarction; diabetes mellitus type II; and prostate cancer residuals. See April 2015 VA examination reports. Turning to the issue of herbicide agent exposure, under the doctrine of "law of the case," questions settled on a former appeal of the same case are no longer open for review. See Browder v. Brown, 5 Vet. App. 268 (1993). The "law of the case" doctrine operates to preclude reconsideration of identical issues. Johnson v. Brown, 7 Vet. App. 25 (1994). As such, the Board will not generally review or reconsider issues that have been decided in a previous appeal. See McCall v. Brown, 6 Vet. App. 215 (1994). In other words, under the "law of the case" doctrine, the Board's prior October 2021 decision found that the evidence was at least in equipoise that the Veteran served near or at the base perimeter of a qualifying RTAFB, and he is presumed to have been exposed to herbicide agents. Thus, exposure to herbicide agents is conceded As herbicide agent exposure is now presumed, so is a competent nexus to service for the atherosclerotic cardiovascular disease status-post myocardial infarction, diabetes mellitus, and prostate cancer and its residuals. Accordingly, the Board grants service connection for atherosclerotic cardiovascular disease, diabetes mellitus, and prostate cancer status post prostatectomy. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service connection for erectile dysfunction is granted. The Veteran contends he experiences erectile dysfunction as a result of the prostate cancer status post prostatectomy. The Veteran was afforded a VA examination for the erectile dysfunction and prostate cancer in April 2015. As noted above, the Veteran was diagnosed with prostate cancer in December 2005 and underwent a prostatectomy in February 2006. The examiner, a nurse practitioner, concluded that the lay and medical evidence supported that the prostate cancer and prostatectomy caused the erectile dysfunction. Additionally, a February 2006 statement from Dr. L.H., the Veteran's treating physician, also concluded that erectile dysfunction was a complication directly caused by the prostate cancer. As the Veteran is now service connected for prostate cancer status post prostatectomy, is currently diagnosed with erectile dysfunction, and positive medical nexus opinions linking the erectile dysfunction to the prostate cancer have been provided, service connection for erectile dysfunction is granted. 5. Service connection for diabetic nephropathy is granted. The Veteran contends that the diabetes mellitus type II caused or aggravated the currently diagnosed chronic renal disease. The Veteran was afforded VA examinations for diabetes mellitus and kidney conditions in April 2015. As noted above, the Veteran was diagnosed with diabetes mellitus in 2012, which has now been awarded service connection. The examiner, a nurse practitioner, noted that the Veteran was diagnosed with chronic renal disease, specifically diabetic nephropathy, in 2015 by a private clinician. The examiner, a nurse practitioner, concluded that the diabetic nephropathy was a recognized complication of diabetes mellitus. As the Veteran is now service connected for diabetes mellitus type II, is currently diagnosed with diabetic nephropathy, and a positive VA medical opinion relating the two conditions has been provided, service connection for diabetic nephropathy is granted. 6. Service connection for right lower extremity peripheral neuropathy is granted; and 7. Service connection for left lower extremity diabetic peripheral neuropathy is granted. The Veteran contends that the diabetes mellitus type II caused the currently diagnosed right and left lower extremity peripheral neuropathy. The Veteran was afforded VA examinations for diabetes mellitus and peripheral neuropathy in April 2015. As noted above, the Veteran was diagnosed with diabetes mellitus in 2012, which has now been awarded service connection. The examiner, a nurse practitioner, noted that the Veteran was diagnosed with right and left lower extremity peripheral neuropathy in 2012 or 2013 by a private clinician. The examiner, a nurse practitioner, concluded that the Veteran had right and left lower extremity peripheral neuropathy, characterized as mild constant pain, severe intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness, bilaterally. The examiner also noted diabetic peripheral neuropathy was a recognized complication of diabetes mellitus. As the Veteran is now service connected for diabetes mellitus type II, is currently diagnosed with right and left lower extremity diabetic peripheral neuropathy, and a positive VA medical opinion relating the peripheral neuropathy to the diabetes mellitus has been provided, service connection for right and left lower extremity diabetic peripheral neuropathy is granted. 8. Entitlement to service connection for right upper extremity peripheral neuropathy is denied; and 9. Entitlement to service connection for left upper extremity peripheral neuropathy is denied. Entitlement to right and left upper extremity peripheral neuropathy are being discussed together herein. The Veteran submitted the initial claim for service connection for "peripheral neuropathy." The RO construed this claim to apply to the bilateral upper and lower extremities. The Veteran has not reported any symptoms in his right or left upper extremities during the appellate period, and no right or left upper extremity neuropathy symptoms have been diagnosed or reported in the medical evidence of record. The Veteran was afforded a VA examination for diabetes and peripheral neuropathy in April 2015. The Veteran indicated that he had symptoms of burning in the bottom of his feet, tingling in his feet, and decreased sensation in his feet. The Veteran denied "problems with his hands..." On physical examination, the examiner, a nurse practitioner, found that the Veteran had no constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness symptoms in the bilateral upper extremities. Muscle strength, deep tendon reflexes, and sensory examination for light touch were normal in the bilateral upper extremities. The radial, median, ulnar, musculocutaneous, circumflex, long thoracic, upper radicular group, middle radicular group, and lower radicular group nerves were normal on examination. Private treatment records show that he had normal sensation, normal coordination, and normal upper and lower extremity deep tendon reflexes on examinations. See August 2012, October 2013, and November 2013 private treatment records. VA treatment records do not show symptoms or a diagnosis of upper extremity peripheral neuropathy. The Veteran also testified before the Board in July 2021. He did not testify that he had symptoms of upper extremity diabetic peripheral neuropathy. The Board finds the weight of the evidence is against the claim as there is no current diagnosis of either right or left upper extremity peripheral neuropathy, and without a diagnosis of a current disability, it necessarily follows that a service connection claim cannot be granted. In making this determination, the Board notes that "to establish the presence of a disability pursuant to Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity." Wait v. Wilkie, 33 Vet. App. 8, 17 (U.S. 2020). Here, neither the Veteran, nor the other evidence of record, shows any neurological symptoms or findings related to the bilateral upper extremities; thus, functional impairment affecting his earning capacity based on symptoms are not found. (Continued on the next page) As the Veteran has failed to meet the threshold element of any service connection claim - a current disability- his claim must be denied. In the absence of probative evidence of a current disability, it is also not necessary to further discuss whether secondary service connection is warranted. The Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harper, 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.