Citation Nr: 21076722 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-06 035A DATE: December 27, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, including secondary to in-service herbicide agent exposure, is granted. Entitlement to service connection for ischemic heart disease, including secondary to in-service herbicide agent exposure, is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity, including secondary to diabetes mellitus, type II, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity, including secondary to diabetes mellitus, type II, is granted. The appeal of entitlement to service connection for cataracts, including secondary to diabetes mellitus, type II, is dismissed. The appeal of entitlement to service connection for retinopathy, including secondary to diabetes mellitus, type II, is dismissed. The appeal of entitlement to service connection for erectile dysfunction, including secondary diabetes mellitus, type II, is dismissed. The appeal of entitlement to service connection for peripheral neuropathy of the right upper extremity, including secondary to diabetes mellitus, type II, is dismissed. The appeal of entitlement to service connection for peripheral neuropathy of the left upper extremity, including secondary to diabetes mellitus, type II, is dismissed. FINDINGS OF FACT 1. The Veteran was exposed to herbicides during the course of his active service. 2. The Veteran currently has diabetes mellitus, type II; coronary artery disease; and coronary atherosclerosis. 3. Diabetes mellitus, type II, and ischemic heart disease (including coronary artery disease and coronary atherosclerosis) may be presumed under law to have been caused by herbicide exposure during service. 4. The Veteran's peripheral neuropathy of the left and right lower extremities are proximately due to his diabetes mellitus, type II. 5. In September 2021, prior to the promulgation of a decision in this appeal, the Veteran, along with his representative, requested a withdrawal of his appeal concerning the issues of entitlement to service connection for cataracts, retinopathy, erectile dysfunction, and peripheral neuropathy of the bilateral upper extremities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, including secondary to inservice herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for ischemic heart disease (diagnosed as coronary artery disease and coronary atherosclerosis), including secondary to inservice herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for peripheral neuropathy of the right lower extremity, including secondary to diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for peripheral neuropathy of the left lower extremity, including secondary to diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for withdrawal of the appeal of entitlement to service connection for cataracts, including secondary to diabetes mellitus, type II, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the appeal of entitlement to service connection for retinopathy, including secondary to diabetes mellitus, type II, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the appeal of entitlement to service connection for erectile dysfunction, including secondary to diabetes mellitus, type II, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the appeal of entitlement to service connection for peripheral neuropathy of the right upper extremity, including secondary to diabetes mellitus, type II, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of the appeal of entitlement to service connection for peripheral neuropathy of the left upper extremity, including secondary to diabetes mellitus, type II, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1966 to March 1978. For his meritorious service, the Veteran was awarded (among other decorations) the Air Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Moreover, where a veteran served continuously for 90 days or more during active service, and diabetes mellitus, type II, manifests to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Regulations pertaining to herbicide exposure provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including diabetes mellitus and ischemic heart disease (which includes atherosclerotic cardiovascular disease and coronary artery disease), for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Section 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). 1. Entitlement to service connection for diabetes mellitus, type II, including secondary to in-service herbicide agent exposure. 2. Entitlement to service connection for ischemic heart disease, including secondary to in-service herbicide agent exposure. The Veteran asserts that he was exposed to herbicides, including Agent Orange, which caused his diabetes mellitus, type II, and ischemic heart disease. Initially, the Board finds that the Veteran shown to have diabetes mellitus, type II, and ischemic heart disease, diagnosed as coronary atherosclerosis and coronary artery disease. Specifically, a June 2016 private treatment report noted diagnoses of diabetes mellitus, type II, and coronary atherosclerosis. An October 2015 cardiac catheterization report listed a diagnosis of single vessel and branch vessel coronary artery disease. Thus, the question becomes whether these conditions are related to the Veteran's military service, including his claimed in-service herbicide agent exposure. At his September 2021 Board hearing, the Veteran testified that he served as an inflight radar technician onboard an EC-121, an early warning and control radar surveillance aircraft. During long surveillance flights over Laos, Cambodia, North Korea, and Vietnam, the Veteran reported they would frequently have to land in Da Nang, Vietnam, to re-fuel. He also reported that many of these missions were classified as top secret as they carried interpreters onboard to listen to air traffic to gain intelligence. The Veteran testified that his inservice duties included ground maintenance on the equipment when not flying. As a result, he was frequently on the flight line while stationed at the Korat Royal Thai Air Force Base in Thailand. He contends that his diabetes mellitus, type II, and ischemic heart disease was caused by this herbicide exposure and requests that the VA apply the herbicide presumptions accorded to Veterans who served in Vietnam. In evaluating claims for service connection, due consideration shall be given to the places, types, and circumstances of a Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's service medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). Upon careful review of the evidence of record, to include the Veteran's credible hearing testimony, which appears to be supported by the Veteran's personnel records, the Board concludes that the Veteran's exposure to herbicide agents during his service is established. As noted above, the Veteran contends that his aircraft surveillance missions were frequently long range. He reported that they lasted a full day at times and frequently required that the aircraft be refueled during the mission. He further testified that this refueling occurred multiple times at the air base in Da Nang, Vietnam. His report of separation, Form DD 214, listed his in-service specialty as airborne warning and control radar technician. A performance report, covering October 1968 to November 1969, noted the Veteran's outstanding actions during a combat mission over Southeast Asia in October 1969. A performance report, covering September 1971 to August 1972, noted that the Veteran was praised for outstanding performance of duty under potentially hazardous condition during a temporary duty assignment. It also noted that he had uncomplainingly performed in the face of incessant temporary duty assignments. The Veteran's Air Medal citation noted his meritorious achievement while participating in aerial flight as a radar technician onboard an EC-121T aircraft while assigned to the College Eye Task Force operating out of Korat Royal Air Base, Thailand, in September 1972. Although an actual confirmation of landing in Vietnam could not be located by the RO, the available evidence of record supports the Veteran's contentions herein. See RO's Email, dated May 25, 2017. Resolving all doubt in favor of the Veteran, the Board concludes that the Veteran's active service included time on the ground in Da Nang, Vietnam. Having affirmatively found herbicide exposure during service, service connection for diabetes mellitus, type II, and ischemic heart disease, which are presumed under law to have been caused by herbicide exposure, is warranted. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity, including secondary to diabetes mellitus, type II, is granted. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity, including secondary to diabetes mellitus, type II, is granted. Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. The Veteran contends that he developed peripheral neuropathy of the right and left lower extremities, secondary to his diabetes mellitus, type II. At his September 2021 Board hearing, the Veteran testified that he has numbness and pain in both his left and right feet. VA treatment reports in July 2016 reflect treatment for and diagnoses of adult-onset diabetes mellitus, type II, with bilateral foot neuropathy. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current peripheral neuropathy of the right and left lower extremities are proximately due to his service-connected diabetes mellitus, type II. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for peripheral neuropathy of the right and left lower extremities is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for cataracts, including secondary to diabetes mellitus, type II, has been withdrawn. 6. Entitlement to service connection for retinopathy, including secondary to diabetes mellitus, type II, has been withdrawn. 7. Entitlement to service connection for erectile dysfunction, including secondary diabetes mellitus, type II, has been withdrawn. 8. Entitlement to service connection for peripheral neuropathy of the right upper extremity, including secondary to diabetes mellitus, type II, has been withdrawn. 9. Entitlement to service connection for peripheral neuropathy of the left upper extremity, including secondary to diabetes mellitus, type II, has been withdrawn. In this matter, the substantive appeal as to the issues of entitlement to service connection for cataracts, retinopathy, erectile dysfunction, and peripheral neuropathy of the right and left upper extremities was withdrawn by the Veteran (who was represented by a Veterans Service Organization) on the record during the September 2021 video conference hearing before the Board. Both the Veteran and his representative indicated in the prehearing conference and again on the record that they understood the consequences of this withdrawal. Given these facts, the Board finds that the Veteran made an explicit, unambiguous oral withdrawal of the issues of entitlement to service connection for cataracts, retinopathy, erectile dysfunction, and peripheral neuropathy of the right and left upper extremities. The Board also finds that this withdrawal was made with the full understanding of the consequences of this action. Accordingly, the Veteran's statements meet all the criteria to be considered a valid, oral withdrawal of these issues. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). The Board finds that this communication satisfies the criteria for a valid withdrawal of the appeal of these issues, and the appeal of these issues is therefore dismissed. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.