Citation Nr: 21067563 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-19 340 DATE: November 4, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is granted. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is granted. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is granted. FINDINGS OF FACT 1. The Veteran was exposed to herbicides in service. 2. The Veteran has a current diagnosis of diabetes mellitus, type II. 3. The Veteran has a current diagnosis of coronary artery disease. 4. The Veteran has a current diagnosis of hypertension. 5. Epidemiologic evidence concludes that there is "sufficient" evidence of an association between hypertension and herbicide exposure. 6. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed hypertension is related to his presumed exposure to herbicide agents during service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing entitlement to service connection for ischemic heart disease, to include as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for establishing entitlement to service connection for hypertension, to include as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from September 1967 to April 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In February 2020 and July 2021, the Board remanded the issues on appeal for additional development. The issues have returned to the Board. 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, 1131. 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service, and (2) was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. The presumption of soundness only applies where there has been an entrance examination prior to the period of service on which the claim is based. 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238 (1994) (holding that the presumption of sound condition attaches only where there has been an induction examination in which the later-complained-of disability was not detected). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, service connection may be presumed for certain diseases if a veteran was exposed to an herbicide agent, including Agent Orange, during service, and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). Ischemic heart disease and diabetes mellitus are among those diseases for which presumptive service connection is available and must manifest to a degree of ten percent or more at any time after the last exposure to the specific herbicide agents. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Department of Defense (DoD) has identified specific units it has cited that served in areas along the Demilitarized Zone (DMZ) in Korea where herbicides were used between April 1968 and July 1969. 38 C.F.R. § 3.307(a)(6)(iv). VA's Adjudication Procedure Manual, M21-1MR ("M21-1MR"), contains a list of a number of Battalions of Infantry, Cavalry, Armor, and Artillery Divisions identified as specific units that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. If a veteran alleges service along the DMZ in Korea, and was assigned to one of the cited units during this period, then that veteran's exposure to herbicides on a factual basis is conceded. Id. Once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. The Veteran did not have any service in the Republic of Vietnam. He did have service in the Republic of Korea during the presumptive period. Thus, the above presumptive provisions would apply if the Veteran was exposed to herbicides. Also, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is granted. See Argument Below in Section 2 2. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is granted. The Veteran seeks entitlement to service connection for diabetes mellitus, type II, and ischemic heart disease. He contends that both claimed disabilities are due to in-service herbicide exposure. The Veteran's personnel records do not show in-country service in the Republic of Vietnam. Specifically, the Veteran alleges that he was exposed to herbicides during his service in the vicinity of the DMZ in Korea from 1968 to 1969. The Veteran's service personnel records confirm that he served in Korea from 1968 to 1969. The Veteran has alleged exposure to Agent Orange and indicated that his service includes that at Camp Casey near the DMZ in Korea. See December 2019 Hearing Transcript at pg. 17. Additionally, the Veteran has indicated that he was also stationed at Camp Red Cloud in Korea, stating that it was 19.6 miles from the DMZ. See December 2014 Veteran statement. Consistent with his statements throughout the appeal period, during the December 2019 Board hearing, the Veteran testified that he served as a truck driver in Korea, picking up and delivering supplies at or near the DMZ. It does not appear that VA attempted to verify the Veteran's alleged service at Camp Casey or Camp Red Cloud. However, the Board notes that the Veteran's service personnel records reflect that, while on active duty in Korea, he served at Camp Page. The records research did not determine the distance of Camp Page from the DMZ in this particular case. However, the United States Court of Appeals for Veterans Claims (Court) has recognized that Camp Page was situated approximately six miles from the DMZ; although this information was included in non-precedential decisions, the Court recognized the same finding on four separate occasions. See Anglin v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1850 (Dec. 28, 2017); Richardson v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1586 (Oct. 31, 2017); Brester v. McDonald, 2014 U.S. App. Vet. Claims LEXIS 1506 (Aug. 29, 2014); and Henderson v. Shinseki, 2011 U.S. App. Vet. Claims LEXIS 997 (May 3, 2011). The Board finds the Veteran's assertions regarding duties at the DMZ credible, as his official duty station was only six miles from the DMZ. Moreover, there is no evidence of record that directly weighs against the Veteran's assertions of performing duties at or near the DMZ. The Veteran has current diagnoses of diabetes mellitus, type II, and coronary artery disease. Coronary artery disease is considered as a form of ischemic heart disease for purposes of presumptive service connection due to exposure to herbicides. 38 C.F.R. § 3.309(e). Therefore, as the Board has determined that the Veteran was exposed to herbicides during his military service, the Board finds that service connection for diabetes mellitus, type II, and ischemic heart disease on a presumptive basis as a result of herbicide exposure is warranted. 3. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is granted. The Veteran also seeks entitlement to service connection for hypertension. As established above, the Veteran was exposed to herbicide agents during his active service. VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This, however, does not preclude the Veteran from establishing entitlement to service connection on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an 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). However, in November 2018, the NAS upgraded the relationship between hypertension and herbicide exposure from limited/suggestive to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a possible association" between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). NAS serves as an advisor on scientific matters and is comprised of experts in the given field; the Board finds the NAS update highly probative. On VA examination in October 2020, the examiner noted the Veteran's diagnosis of hypertension. The examiner opined that the Veteran's hypertension was not related to his diabetes mellitus. However, the examiner did not provide an opinion as to whether the Veteran's hypertension was a result of his claimed in-service herbicide exposure. Thus, the October 2020 VA opinion is of limited probative value. In sum, the Veteran has a current diagnosis of hypertension and is presumed to have been exposed to herbicide agents in service. Moreover, as determined, the Board finds probative the epidemiologic evidence supporting a positive association between herbicide agent exposure and hypertension. The Board thus concludes that, at the very least, the evidence of a causal connection to service is in equipoise. Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria to establish service connection for hypertension are met. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.