Citation Nr: A21017883 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 210629-169021 DATE: November 4, 2021 ORDER Entitlement to service connection for diabetes mellitus due to herbicide agent exposure is granted. Entitlement to service connection for ischemic heart disease due to herbicide agent exposure is granted. Entitlement to service connection for a left leg scar as secondary to ischemic heart disease is granted. Entitlement to service connection for a chest scar as secondary to ischemic heart disease is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes mellitus is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity is granted. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus is granted. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. FINDINGS OF FACT 1. The Veteran's duties at U-Tapao Royal Thai Air Force Base during the Vietnam era took him near the base perimeters and herbicide agent exposure is accepted on a facts-found basis. 2. The Veteran has current diagnoses of diabetes mellitus and ischemic heart disease that are presumed to be related to herbicide agent exposure sustained during active service. 3. The Veteran's left leg scar is secondary to now service-connected ischemic heart disease. 4. The Veteran's chest scar is secondary to now service-connected ischemic heart disease. 5. The Veteran's peripheral neuropathy of the left lower extremity is secondary to now service-connected diabetes mellitus. 6. The Veteran's peripheral neuropathy of the right lower extremity is secondary to now service-connected diabetes mellitus. 7. The Veteran's peripheral neuropathy of the left upper extremity is secondary to now service-connected diabetes mellitus. 8. The Veteran's peripheral neuropathy of the right upper extremity is secondary to now service-connected diabetes mellitus. 9. The Veteran's erectile dysfunction is secondary to now service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus due to herbicide agent exposure are met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for ischemic heart disease due to herbicide agent exposure are met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 3. The criteria for service connection for a left leg scar as secondary to ischemic heart disease are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 4. The criteria for service connection for a chest scar as secondary to ischemic heart disease are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 5. The criteria for service connection for peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 6. The criteria for service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 7. The criteria for service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 8. The criteria for service connection for peripheral neuropathy of the right upper extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 9. The criteria for service connection for erectile dysfunction as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1966 to July 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, and 60 days following the submission of his VA Form 10182. 38 C.F.R. § 20.302(a). Evidence, including private treatment records, was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of service connection for diabetes mellitus, ischemic heart disease, a left leg scar, a chest scar, peripheral neuropathy of the extremities and erectile dysfunction, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In addition, as the claim for service connection for hypertension is being remanded herein, the AOJ will consider this evidence in the adjudication of that claim. The Board notes that, in the January 2021 rating decision on appeal, the AOJ made the following favorable findings: that the Veteran has a current diagnosis for diabetes mellitus, and diabetes mellitus is a chronic disability that may be presumptively linked to military service; that the Veteran has a current diagnosis of coronary artery disease, atherosclerotic heart disease, and supraventricular arrhythmia, and such disorders are a chronic disability that may be presumptively linked to military service; that the Veteran has a chest scar that is secondary to his diagnosed heart disorder; that the Veteran has a diagnosis of erectile dysfunction that is secondary to diabetes mellitus; that the Veteran has a diagnosis of hypertension; that the Veteran has a diagnosis of a left leg scar that is secondary to surgery from his diagnosed heart disorder; that the Veteran has a diagnosis of peripheral neuropathy of the left lower extremity that is secondary to diabetes mellitus; the Veteran has a diagnosis of peripheral neuropathy of the right lower extremity that is secondary to diabetes mellitus; that the Veteran has a diagnosis of peripheral neuropathy of the left upper extremity that is secondary to diabetes mellitus; and that the Veteran has a diagnosis of peripheral neuropathy of the right upper extremity that is secondary to diabetes mellitus. The Board is bound by such favorable findings. The Board notes that the Veteran has asserted he had exposure to herbicide agents pursuant to his service in Thailand, between August 16, 1967 to December 1, 1967. The Veteran, nor his representative, have asserted that he had service in the Republic of Vietnam during the Vietnam era at any time during the period on appeal. Additionally, the Veteran's military personnel records show the Veteran had service in Thailand, did not have service in the Republic of Vietnam, and did not have any combat missions flown over Laos or North Vietnam at any time. Nevertheless, the AOJ issued a VA memorandum that indicated exposure to herbicides is conceded based on the Veteran's duty or visitation (boots on the ground) in the Republic of Vietnam. See VA Memorandum, August 7, 2021. The Board finds that the August 2021 VA memorandum is potentially erroneous in conceding herbicide agent exposure based on service in the Republic of Vietnam, however, as discussed below, the Board concedes herbicide agent exposure on a facts found basis based on the Veteran's service in Thailand. As doing so does not prejudice the Veteran, but rather is favorable to his claims, the Board will not further discuss nor consider whether the Veteran had service in the Republic of Vietnam. Service Connection Diabetes Mellitus and Ischemic Heart Disease The Veteran seeks entitlement to service connection for diabetes mellitus and ischemic heart disease. In this case, the Veteran does not assert that he had service in the Republic of Vietnam but rather has asserted that he served at U-Tapao Royal Thai Air Force Base, Thailand. Specifically, the Veteran has asserted that his diabetes mellitus and ischemic heart disease are due to herbicide agent exposure during his service in Thailand. See e.g. Appellate Brief, October 5, 2021. Specifically, the Veteran and his representative assert that the Veteran worked near the perimeter fence while maintaining aircraft. Id. Additionally, the Veteran reported that he had to cross the vegetation areas to use the bathroom while in Thailand. See VA Form 21-4138 Statement in Support of Claim, June 29, 2021. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service-connected even though there is no record of such disease during service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). For the purposes of this section, 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 Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will 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). VA concedes herbicide agent exposure for United States Air Force Veterans who served in Thailand during the Vietnam era at certain Royal Thai Air Force Bases to include U-Tapao Air Station, if they served as security policemen, security patrol dog handlers, members of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Per his military personnel record, the Veteran's military occupational specialty (MOS) was an aircraft mechanic. As the Veteran did not work with Air Force security, the Board must determine, based on evidence of daily work duties, performance evaluation reports, or other credible evidence whether the Veteran's regular duties placed him on or near the perimeter of the base. As noted above, the Veteran has consistently asserted that his duties placed him at or near the base perimeter at U-Tapao Royal Thai Air Base in Thailand. Specifically, he stated that his workplace was located near the perimeter of the base, and that he had to cross through areas of vegetation sprayed with herbicide agents to use the bathroom. Additionally, the Veteran asserted that the planes he worked on would be located throughout the base, to include near the perimeter. In considering the Veteran's MOS of aircraft mechanic, his active service at the U-Tapao Royal Thai Air Force Base, Thailand during the Vietnam War era, and his statements of performing his duties on aircraft for maintenance on and near the perimeter of the base, the Board finds that evidence is, at the very least, in relative equipoise as to whether the Veteran served at U-Tapao Royal Thai Air Force Base near the perimeter of the base. Therefore, the Board will resolve all doubt in favor of the Veteran in finding that he worked near the U-Tapao Royal Thai Air Force Base perimeter. Accordingly, his exposure to herbicide agents in Thailand is conceded on a fact found basis. A review of the record shows that the Veteran has diagnoses of diabetes mellitus and ischemic heart disease. Diabetes mellitus and ischemic heart are diseases that are enumerated for purposes of presumptive service connection due to exposure to herbicide agents. 38 C.F.R. § 3.309(e). In sum, the Veteran is presumed to have been exposed to herbicide agents while serving in Thailand, and he has current diagnoses of diabetes mellitus and ischemic heart disease. Therefore, the Board finds that the preponderance of the evidence is for the claims and entitlement to service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Service Connection Left Leg Scar, Chest Scar, Bilateral Upper and Bilateral Lower Extremity Peripheral Neuropathy, and Erectile Dysfunction Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). As of the date of this decision, service connection is in effect for diabetes mellitus and ischemic heart disease. The Veteran has current diagnoses of a left leg scar secondary to ischemic heart disease, a chest scar secondary to ischemic heart disease, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, and erectile dysfunction. As noted above, in the January 2021 rating decision, the RO found that the diagnoses of left leg scar and chest scar were secondary to surgery for ischemic heart disease; and his diagnoses of bilateral upper and bilateral lower peripheral neuropathy and erectile dysfunction are secondary to diabetes mellitus. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Accordingly, the Board finds that the preponderance of the evidence is for the claims and entitlement to service connection for left leg scar and chest scar as secondary to service-connected ischemic heart disease, and entitlement to service connection for bilateral upper and bilateral lower extremity peripheral neuropathy and erectile dysfunction as secondary to service-connected diabetes mellitus type II is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, supra. REASONS FOR REMAND Service Connection Hypertension The Veteran seeks entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. The Veteran was afforded a VA examination in April 2020. At that time, the examiner diagnosed hypertension, and opined that it was less likely than not was due to the Veteran's diabetes mellitus. In this regard, the examiner noted that the Veteran was diagnosed with hypertension in 2005 and diabetes mellitus in 2017, over a decade later. Therefore, as the hypertension predated his diagnosis for diabetes mellitus, the examiner opined it was not caused by his diabetes mellitus. Upon review of the above, the Board does not find the medical opinion evidence of record to be adequate for fairly adjudicating the Veteran's claim. In this regard, the examiner failed to address whether the Veteran's hypertension was directly related to his service. Such finding does not preclude direct service connection. See Combee v. Brown, 34 F.3d 1039 (1994). In addition, it failed to address whether the Veteran's hypertension was aggravated by his diabetes mellitus. El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is again required to obtain an addendum medical opinion as to the nature and etiology of the Veteran's hypertension. The failure to obtain an adequate medical opinion is a pre-decisional duty to assist error. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed hypertension. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following questions: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its onset during service or is related to an in-service injury, event, or disease, to include his herbicide agent exposure. (B) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was aggravated by his service connected diabetes mellitus? The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.