Citation Nr: 21070669 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-04 262 DATE: November 24, 2021 ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is denied. Entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, to include as secondary to type II diabetes mellitus, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus, is denied. REMAND Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam era and was not otherwise exposed to herbicides during his military service. 2. The Veteran's type II diabetes mellitus did not manifest in service or within one year thereafter and is not otherwise related to service. 3. The Veteran's bilateral upper and lower extremity peripheral neuropathy did not manifest in service or within one year thereafter and is not otherwise related to service or a service-connected disability. 4. The Veteran's erectile dysfunction did not manifest in service and is not otherwise related to service or a service-connected disability. CONCLUSIONS OF LAW 1. Type II diabetes mellitus was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Bilateral upper and lower extremity peripheral neuropathy was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 3. Erectile dysfunction was not incurred in active service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In August 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In February 2019, the Board remanded the case to the AOJ for further development. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis In the February 2019 remand, the Board directed the AOJ to request verification from the Joint Services Records Research Center (JSRRC) as to the Veteran's claimed herbicide exposure while he was stationed in Korea. In January 2020, the AOJ requested verification from the JSRRC, and in May 2020, a response was received. Thus, The Board finds that there has been substantial compliance with the prior remand directives with respect to the issues decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As diabetes mellitus and organic diseases of the nervous system (including peripheral neuropathy) are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus and organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.307(d). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), including type II diabetes mellitus and early-onset peripheral neuropathy. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). When a claimed disability is not included as presumptive disorder, a veteran may nevertheless establish service connection based evidence of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997) (applying principle to Agent Orange exposure). If a Veteran had active service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, the veteran shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange. 38 C.F.R. § 3.307(a)(6)(iv). The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). While early onset peripheral neuropathy is on the list of diseases that VA has associated with herbicide exposure at 38 C.F.R. § 3.309(e), 38 C.F.R. § 3.307(a)(6)(ii) requires that early-onset peripheral neuropathy become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active service. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for type II diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and erectile dysfunction. The Veteran has contended that his type II diabetes mellitus is related to in-service herbicide exposure while he was stationed in Korea. The Veteran's service personnel records show that he was assigned to USARPAC Korea, 19th Aviation Company, as an aircraft maintenance apprentice from May 1969 to June 1970. During the August 2018 hearing, the Veteran testified that he was never stationed at the DMZ, but he stated that his unit transported individuals from Osan Air Base in Seoul to the DMZ. He asserted that he was exposed to herbicides from his duties that placed him along the DMZ. He also reported that he may have been exposed to Agent Orange while he was stationed at Osan Air Base. Specifically, he reported that he flew in helicopters that disposed of barrels of chemicals into the ocean. He also indicated that he may have spent approximately six to eight weeks at a compound in Vietnam before flying to Korea. The Veteran has claimed that his bilateral upper and lower extremity peripheral neuropathy and erectile dysfunction developed secondary to his type II diabetes mellitus. The post-service evidence shows that the Veteran has diagnoses of type II diabetes mellitus, peripheral neuropathy, and erectile dysfunction. See, e.g., August 2011, October 2011, February 2013, March 2013, April 2013 VA treatment records. On review, the Board finds that the Veteran's current diabetes mellitus, peripheral neuropathy, and erectile dysfunction did not manifest in service. The Veteran's service treatment records do not document any complaints, treatment, or diagnosis of those disorders. In fact, his relevant body systems were found to be normal at the time of a July 1968 induction examination and a May 1970 separation examination. The Veteran also denied having a history of relevant symptoms on the corresponding reports of medical history for the entrance and separation examinations. To determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. The service treatment records do not show that the Veteran had diabetes mellitus or peripheral neuropathy during service. Therefore, chronicity is not established in service. Moreover, the record contains no indication that the disorders manifested to a compensable degree within one year of the Veteran's military service. The Veteran has not contended otherwise. Instead, he has consistently maintained that the neuropathy and erectile dysfunction developed as a result of the diabetes mellitus, and he has clarified that he is claiming service connection for diabetes mellitus on the basis of herbicide exposure only. See, e.g., February 2011 claim (claim for diabetes with reported onset in 1994, peripheral neuropathy with reported onset in 2006 for feet and in 1009 for hands, and erectile dysfunction with reported onset in 1995); August 2018 Bd. Hrg. Tr. (onset and relationship of disorders). Regarding the claimed in-service herbicide exposure, the record does not show that the Veteran served in the Republic of Vietnam during the Vietnam era. During the August 2018 hearing, the Veteran testified that he spent six to eight weeks at a secure compound enroute to Korea, which he believed could have been in Vietnam. Bd. Hrg. Tr. at 15-16, 23. During the hearing, the Veteran's representative also noted that a record of assignments in the Veteran's service personnel records included a line that documents that the Veteran was enroute to USARPAC Vietnam in January 1969 from Fort Sill, Oklahoma. However, the Board notes that a review of the record of assignments shows that the Veteran reported to Fort Sill in December 1968. The line item that shows that the Veteran was enroute to USARPAC Vietnam in January 1969 was struck out. Rather, it appears that the Veteran remained at Fort Sill until May 1969 when he was assigned to the 19th Aviation Company, USARPAC Korea. In addition, the Veteran's DD Form 214 also specifically indicates that he had no Vietnam service. The Veteran's service personnel records show that he was stationed at USARPAC Korea as an aircraft maintenance apprentice from May 1969 to June 1970. In May 2020, a Defense Personnel Records Information Retrieval System (DPRIS) search of the 1969 unit history submitted by the 19th Aviation Company, the 1969 United States Army Station List, and 1969 chronology submitted by the 8th United States Army showed that the unit was located at Pyong-Taek, Korea, and that the mission of the unit was to provide tactical and logistical air support to the military forces in South Korea. The records did not document that the Veteran or any personnel assigned to the 19th Aviation Company flew in helicopters that disposed of barrels of chemicals into the ocean. In addition, the search showed that the records did not document the use, storage, spraying, or transporting of tactical herbicides, to include Agent Orange. Further, the records did not mention or document any specific duties performed by the 19th Aviation Company unit members on or near the DMZ. Based on the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran served in-country in Vietnam. The weight of the evidence is also against a finding that the Veteran was otherwise exposed to herbicides during his military service while he was stationed at USARPAC Korea. Because there is no evidence of service in Vietnam or herbicide exposure along the DMZ, the Veteran is not entitled to the legal presumptions of herbicide agent exposure or recognition of exposure on a direct/facts-found basis to serve as the in-service event to relate his type II diabetes mellitus or the remaining disorders claimed secondary to type II diabetes mellitus to his military service. As service connection has not been established for type II diabetes mellitus, service connection for bilateral upper and lower extremity peripheral neuropathy and erectile dysfunction on a secondary basis is not warranted. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claims. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied. Gilbert, 1 Vet. App. 49, 53. REASONS FOR REMAND In the August 2019 remand, the Board noted that the January 2016 VA examiner found that the Veteran had hearing loss that existed prior to service and opined that it was not aggravated beyond normal progression during military service. The Board determined that a clarifying VA medical opinion should be obtained as to the nature and etiology of any current hearing loss and tinnitus. The examiner was directed to convert any audiometric results using ASA standards to ISO-ANSI standards in order to facilitate data comparison between the Veteran's July 1968 induction and May 1970 separation audiograms. The Board noted that when the audiometric findings of the July 1968 induction examination are converted from ASA standards to ISO-ANSI standards, the Veteran appeared to have left ear hearing loss noted, as defined by 38 C.F.R. § 3.385. The examiner was requested to state whether there was an increase in the severity of the preexisting left ear hearing loss during service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. In addition, the examiner was requested to provide an opinion as to whether it was at least as likely as not that any current right ear hearing loss and tinnitus manifested in service or were otherwise causally or etiologically related to the Veteran's military service, to include noise exposure therein. The examiner was also requested to address whether the Veteran's tinnitus was caused or otherwise related to any current hearing loss. In an August 2020 VA medical opinion, a VA examiner opined that the Veteran's hearing loss, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by service. However, the examiner's rationale did not support that conclusion. Rather, he reported that the Veteran's left and right ear hearing did not worsen at any frequency during service. He then stated that there was no evidence that the Veteran's military service worsened his preexisting hearing loss beyond its natural progression and no evidence that military noise exposure led to hearing loss. The examiner did not provide an opinion with respect to the Veteran's tinnitus. Therefore, a clarifying opinion must be obtained to address the inconsistencies in this opinion and to obtain an opinion as to the etiology of the Veteran's tinnitus. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for bilateral hearing loss and tinnitus. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a VA examiner for a clarifying opinion as to the nature and etiology of any current hearing loss and tinnitus. An additional physical examination is only needed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should address the following: A. When the audiometric findings of the Veteran's July 1968 induction examination are converted from ASA standards to ISO- ANSI standards, he appears to have had left ear hearing loss noted, as defined by 38 C.F.R. § 3.385. The examiner should state whether there was an increase in the severity of the preexisting left ear hearing loss during service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. B. The examiner should also provide an opinion as to whether it is at least as likely as not that any current right ear hearing loss and tinnitus manifested in service or are otherwise causally or etiologically related to the Veteran's military service, to include noise exposure therein. He or she should also address whether the Veteran's tinnitus is caused or otherwise related to any current hearing loss. The examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss or tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.