Citation Nr: 21075491 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 13-35 006 DATE: December 20, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for hepatitis C is granted. Entitlement to service connection for a liver transplant, to include as secondary to hepatitis C, is granted. REMANDED Entitlement to special monthly compensation based on loss of use of a creative organ is remanded. FINDINGS OF FACT 1. The Veteran served the territorial waters of Vietnam and is presumed to have been exposed to herbicide agents. 2. Giving every reasonable doubt to the appellant, hepatitis C is related to service. 3. Giving every reasonable doubt to the appellant, the Veteran's liver transplant was due to hepatitis C. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for a liver transplant have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1972 to May 1975. He died in February 2016, and the appellant is his surviving spouse. The appellant has been substituted as the claimant with respect to the issues before the Board. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1000. The appellant then testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2021. A transcript is of record. The issues of service connection for the cause of the Veteran's death and entitlement to service-connected burial benefits was remanded by the Board in February 2020. These issues remain before the agency of original jurisdiction. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be considered "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection will also be presumed for certain chronic diseases, including diabetes, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). In order for the presumption to apply, the claimant must be a veteran with 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1). In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for diabetes mellitus, type II A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on 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). The service personnel records show that the Veteran served on the USS Inchon from May 1972 to May 1975. Under the Blue Water Navy Veterans Act of 2015, exposure is conceded for veterans of the Navy who served in the coastal waters surrounding Vietnam. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied 129 S. Ct. 1002 (2009). In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the Federal Circuit reversed Haas and held that service in Vietnam includes service on ships that operated within the territorial seas of Vietnam that extended 12 nautical miles from the shore. Congress implemented the Procopio holding in the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act). The Act added new section of the U.S. Code, 38 U.S.C. § 1116A, which states that VA must treat a location as being "offshore" of Vietnam (and therefore falling within the presumption of herbicide agent exposure) "if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia." The logbooks that have been associated with the claims file show that the USS Inchon was in the territorial seas of Vietnam during the Veteran's service on the ship. Therefore, the Veteran is presumed to have been exposed to herbicide agents during service. See 38 U.S.C. § 1116A. Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, certain enumerated 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 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Diabetes mellitus, type II, is included in the enumerated diseases for which there is a presumption of service connection based on herbicide exposure. Id. VA treatment records show that the Veteran was diagnosed with diabetes mellitus in December 2010. Subsequent treatment records show ongoing treatment for diabetes that included insulin and medication. The manifestations of diabetes were therefore to a compensable degree. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Accordingly, the Veteran's diabetes is presumed to be due to herbicide exposure from service in the territorial waters of Vietnam during the Vietnam Era. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. As such, the Board concludes that service connection for diabetes is warranted. 2. Entitlement to service connection for hepatitis C The service treatment records (STRs) show that in February 1974 the Veteran was diagnosed with acute urethritis due to gonococcus after having unprotected sexual exposure. The Veteran was further treated for venereal disease in June 1974 and September 1974. The separation examination report notes that the Veteran had a tattoo on his right deltoid. The STRs do not show a diagnosis of hepatitis C. Private treatment records show that the Veteran was diagnosed with hepatitis C in March 2001 based on a liver biopsy. The Veteran wrote in March 2012 that he was seen right after discharge from active service with yellow eyes that lasted for a month. The Veteran had a VA examination in March 2012 at which he was diagnosed with hepatitis C. It was noted that the diagnosis was in 2001 and that it was treated with interferon. The Veteran said that he believed he had hepatitis C in 1975 during a period when he had yellow eyes. The examiner opined that hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the Veteran's high risk sexual behavior extended beyond his military service per his reported high risk sexual history. The STRs show treatment for a sexually transmitted disease and that the separation physical does not support a chronic or ongoing condition of hepatitis C. The record shows that the Veteran was diagnosed with hepatitis C more than 25 years after separation from the military. In August 2012 the Veteran wrote that he was given inoculations by "jet gun" during service and that there was no disinfecting between shots. Furthermore, razor blades were shared on the ship. When he returned home from active duty, his eyes were bright yellow, and he had fatigue. He was put on medication at that time by a doctor he went to. In June 2015 a VA examiner reviewed the record and opined that it was less likely than not that hepatitis C was incurred in or caused by military service or any risk factor in active service. The STRs were reviewed, and it was noted that the separation physical was silent for hepatitis C and a sexually transmitted disease. Abnormal liver function tests date back to 1993, and the Veteran had a concomitant alcohol abuse. Therefore, the etiology of the abnormal liver function tests could not be stated without resorting to speculation. It was noted that the Veteran had high risk unprotected sexual behavior prior to, during, and after service. The record shows that the Veteran had in-service risk factors for hepatitis C, and risk factors outside of service. The June 2015 examiner stated that the etiology of the abnormal liver function tests could not be stated without resorting to speculation because of the various risk factors. Probative value can therefore not be given to the examiner's negative nexus opinion regarding hepatitis C. Likewise, probative value cannot be given to the March 2012 examiner's opinion because it is not clear how much weight the examiner gave to the in-service risk factors. The Board therefore finds that the record is in equipoise because there is no medical opinion that duly considers the risk factors from service. See Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) (In a claim of service connection for hepatitis C, the Board improperly relied on a medical opinion that failed to address in-service risk factors and failed to identify viable non-service related etiology). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant, and as was the case in Andrews, there is no competent, persuasive evidence that the Veteran's hepatitis C was more likely caused by post-service risk factors as opposed to in-service risk factors. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. Accordingly, as the evidence is at least in equipoise, service connection for hepatitis C is warranted. 3. Entitlement to service connection for a liver transplant, to include as secondary to hepatitis C The Veteran underwent a liver transplant in July 2010. August 2010 private treatment records state that the liver transplant was due to decompensated cirrhosis secondary to hepatitis C and hepatocellular carcinoma. VA treatment records from March 2011 note that the Veteran had a kidney transplant in July 2010 due to hepatocellular carcinoma and that he also had hepatitis C. The record is therefore also at least in equipoise regarding whether the Veteran's liver transplant was related to hepatitis C. When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; 38 C.F.R. § 3.102. Service connection for a liver transplant is therefore also warranted. REASONS FOR REMAND Entitlement to special monthly compensation based on loss of use of a creative organ is remanded Under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(1), special monthly compensation (SMC) may be paid for loss of use of a creative organ. Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. The General Counsel has provided an opinion that SMC is awarded for either anatomical loss or loss of use of a creative organ. VAOPGCPREC 93-90; VAOPGCPREC 5-89. SMC is payable at a specified rate if the claimant, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). The statute is interpreted as including erectile dysfunction as loss of use of a creative organ. VA treatment records show that the Veteran had erectile dysfunction. It is not clear from the record whether it was related to a service-connected disability, to include diabetes. Therefore, the claim must be remanded for a medical opinion before it can be decided on the merits. The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate provider to determine the likely etiology of the Veteran's erectile dysfunction. The claims file must be made available to the examiner for review. The examiner must also provide an opinion regarding whether any erectile dysfunction was at least as likely as not (50 percent or greater probability) (1) proximately due to hepatitis C, a kidney transplant, and/or tinnitus, or (2) was aggravated beyond its natural progression by hepatitis C, a kidney transplant, and/or tinnitus. The examiner is advised that 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 a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.