Citation Nr: 21077176 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-13 878 DATE: December 28, 2021 ORDER Service connection for coronary artery disease, including as due to herbicide exposure, is granted. Service connection for diabetes mellitus type II, including as due to herbicide exposure, is granted. Service connection for right upper extremity peripheral neuropathy, including as secondary to the service-connected diabetes mellitus, is granted. Service connection for left upper extremity peripheral neuropathy, including as secondary to the service-connected diabetes mellitus, is granted. Service connection for right lower extremity peripheral neuropathy, including as secondary to the service-connected diabetes mellitus, is granted. Service connection for left lower extremity peripheral neuropathy, including as secondary to the service-connected diabetes mellitus, is granted. Service connection for erectile dysfunction, including as secondary to the service-connected diabetes mellitus, is granted. A higher initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran served at the Royal Thai Air Base in U-Tapao, Thailand, from 1969 to 1971. 2. The Veteran is currently diagnosed with coronary artery disease. 3. The Veteran is currently diagnosed with diabetes mellitus type II. 4. The Veteran is currently diagnosed with right upper extremity peripheral neuropathy; the current right upper extremity peripheral neuropathy is the result of the service-connected diabetes mellitus type II. 5. The Veteran is currently diagnosed with left upper extremity peripheral neuropathy; the current left upper extremity peripheral neuropathy is the result of the service-connected diabetes mellitus type II. 6. The Veteran is currently diagnosed with right lower extremity peripheral neuropathy; the current right lower extremity peripheral neuropathy is the result of the service-connected diabetes mellitus type II. 7. The Veteran is currently diagnosed with left lower extremity peripheral neuropathy; the current left lower extremity peripheral neuropathy is the result of the service-connected diabetes mellitus type II. 8. The Veteran is currently diagnosed with erectile dysfunction; the current erectile dysfunction is the result of the service-connected diabetes mellitus type II. 9. For the entire initial rating period on appeal from June 17, 2014, the Veteran's PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, without total occupational and social impairment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for coronary artery disease have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right upper extremity peripheral neuropathy as secondary to the service-connected diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 4. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left upper extremity peripheral neuropathy as secondary to the service-connected diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right lower extremity peripheral neuropathy as secondary to the service-connected diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 6. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left lower extremity peripheral neuropathy as secondary to the service-connected diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 7. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for erectile dysfunction as secondary to the service-connected diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 8. Resolving reasonable doubt in favor of the Veteran, for the entire initial rating period from June 17, 2014, the criteria for a higher initial disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from January 1969 to October 1979. The Veteran requested a Board hearing in a March 2017 substantive appeal filed via VA Form 9. A videoconference hearing was scheduled for February 2020, but the Veteran did not appear, did not request its postponement, and has not provided good cause for not appearing. As such, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). Service Connection Legal Criteria 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; 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The evidence shows current diagnoses of coronary artery disease, diabetes mellitus, right and left upper and lower extremity peripheral neuropathies (as an organic disease of the nervous system), and erectile dysfunction (as an organic disease of the nervous system), which are "chronic" diseases under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as coronary artery disease, diabetes mellitus, and organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Coronary artery disease (ischemic heart disease) and diabetes mellitus are diseases for which presumptive service connection based on exposure to herbicides may be granted. 38 C.F.R. § 3.309(e). VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War and determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the period beginning on January 9, 1962 and ending on May 8, 1975. Herbicide exposure may be acknowledged on a facts found or direct basis. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). 1. Service connection for coronary artery disease 2. Service connection for diabetes mellitus type II The Veteran contends that presumptive service connection for coronary artery disease (CAD) and diabetes mellitus are warranted due to exposure to herbicides during service when stationed at the Royal Thai Air Base in U-Tapao, Thailand and at Don Muang Airport in Thailand. The evidence shows current diagnoses of CAD and diabetes mellitus type II. See June 2016 VA examination reports. The Board finds the evidence of record is at least in equipoise as to the question of whether the Veteran was exposed to herbicides during service. Service personnel records reflect the Veteran was stationed at the RTAFB in U-Tapao, Thailand, and at Don Muang Airport in Thailand. Military personnel records reflect the Veteran was stationed in Thailand from August 1969 to February 1971, and that he worked as a postal clerk and as a mail processing specialist at both Don Muang Airport and at U-Tapao airfield. The Veteran asserts that while he was stationed at U-Tapao airfield in Thailand his barracks were located near the perimeter of the base. The road he walked to work in the morning was adjacent to the base perimeter. Additionally, performing duties of a postal clerk included delivering classified documents and other sensitive packages to various areas around the base, which included locations near or at the base perimeter. See July 2015 Correspondence. Further, the Veteran's verified in service stressor underlying the service-connected posttraumatic stress disorder involved an intrusion through the perimeter fence by a group of sappers, which occurred near the barracks located along the perimeter of the base. See April 2015 Statement in Support of Claim for PTSD. As such, considering all the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's duties as a postal clerk and as a mail processing specialist at both Don Muang Airport and at U-Tapao airfield placed the Veteran near the perimeter of the bases, resulting in exposure to herbicides. Because CAD and diabetes mellitus type II are presumptively associated with herbicide exposure, service connection for CAD and diabetes mellitus type II as a result of herbicide exposure are warranted on a presumptive basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 3. Service connection for right upper extremity peripheral neuropathy 4. Service connection for left upper extremity peripheral neuropathy 5. Service connection for right lower extremity peripheral neuropathy 6. Service connection for left lower extremity peripheral neuropathy 7. Service connection for erectile dysfunction The Veteran generally asserts that service connection for right and left upper and lower extremity radiculopathy and erectile dysfunction are warranted as the result of (secondary to) the now service-connected diabetes mellitus. See July 2014 VA Form 21 526EZ. Initially, the Board finds the evidence shows current diagnoses of right and left upper and lower extremity radiculopathies and erectile dysfunction. See June 2016 VA examination reports. After a review of all the lay and medical evidence, the Board finds that weight of the evidence demonstrates that the current right and left upper and lower extremity radiculopathies and erectile dysfunction are the result of (secondary to) the service-connected diabetes mellitus. 38 C.F.R. § 3.310. A June 2016 VA examination report reflects specific findings that the Veteran's right and left upper and lower extremity symptoms are due to diabetic peripheral neuropathy. Another June 2016 VA examination report for diabetes mellitus shows positive findings for complications of diabetes that include diabetic peripheral neuropathy. The June 2016 VA examiner also opined that it is at least as likely as not that the Veteran's erectile dysfunction is the result of the service-connected diabetes mellitus. Based on the foregoing evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the right and left upper and lower extremity radiculopathy and erectile dysfunction are secondary to (38 C.F.R. § 3.310) the service-connected diabetes mellitus type II, and finds that the criteria for service connection for right and left upper and lower extremity radiculopathy and erectile dysfunction, as secondary to the service-connected diabetes mellitus, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. As service connection is being granted on a secondary basis, there is no need to discuss entitlement to service connection on any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 8. Rating PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. For the entire initial rating period on appeal from June 17, 2014, the Veteran is in receipt of a 50 percent rating for the service-connected PTSD under Diagnostic Code 9411. 38 C.F.R. § 4.130. The General Rating Formula for Mental Disorders provides a 50 percent rating when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." After a review of all the evidence, lay and medical, and resolving reasonable doubt in the Veteran's favor, the Board finds that, for the entire initial rating period on appeal from June 17, 2014, the service-connected PTSD has more nearly approximated occupational and social impairment, with deficiencies in most areas, due to symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. The PTSD did not cause total occupational and social impairment. For these reasons, a higher initial rating of 70 percent, but no higher, under Diagnostic Code 9411 is warranted. 38 C.F.R. § 4.130. The record includes an August 2015 VA examination report, which reflects findings of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation. During the August 2015 VA examination, the Veteran was observed to be casually dressed with appropriate eye contact and posture, logical thought processes, intact cognition. The Veteran endorsed suicidal ideation, which he described it as a remote history and denied any history of suicide attempt. The Veteran also described some recent history of passive thoughts of suicide without intent or plan, stating that concern for his wife would deter self-harm. The Veteran denied panic, obsessive-compulsive, and psychotic symptoms. The August 2015 VA examiner assessed occupational and social impairment with reduced reliability and productivity. The Veteran underwent another VA examination in January 2017, the examination report for which reflects diagnoses of PTSD, major depressive disorder, and generalized anxiety disorder. The VA examiner assessed the Veteran's psychiatric disorders had manifested in symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, and suicidal ideation. Although the Veteran reported thoughts of suicide more than six months prior, he denied any current ideation or plan. The Veteran was observed to be casually groomed and dressed, oriented, with a flattened affect and without any psychomotor agitation, flight of ideas, pressured speech, or hallucinations or delusions. Although the August 2015 and January 2017 VA examiners assessed the PTSD symptoms caused occupational and social impairment with reduced reliability and productivity (criteria for a 50 percent rating), both VA examiners found the Veteran's PTSD symptoms have manifested in suicidal ideation (criteria for a 70 percent rating), difficulty adapting to stressful circumstances (criteria for a 70 percent rating), and difficulty establishing and maintaining effective work and social relationships (criteria for a 70 rating). Based on these findings, and resolving reasonable doubt in favor of the Veteran, the Board finds that for the entire initial rating period from June 17, 2014, the criteria for a higher initial 70 percent rating under Diagnostic Code 9411 have been met. 38 C.F.R. §§ 4.3, 4.7. The Board further finds that for the entire initial rating period on appeal from June 17, 2014, the lay and medical evidence of record does not demonstrate that the PTSD has manifested in total occupational and social impairment. The evidence shows that the PTSD symptoms have resulted in significant social and occupational impairment; hence, the 70 percent disability rating that recognizes serious symptoms and serious occupational and social impairment the affects various aspects of the Veteran's life. The evidence of record does not reflect that, at any time, the symptoms were so severe as to cause total occupational and social impairment to warrant a 100 percent disability rating. The August 2015 and January 2017 VA examination reports reflect the Veteran was observed to be alert and oriented, in touch with reality, without impairment of judgment, ability to communicate, or ability to understand and follow simple directions. Other VA treatment records likewise show the Veteran to be alert and oriented without any psychotic symptoms or other thought or speech disorder. See e.g., September 2014 VA treatment record; October 2014 VA treatment record; October 2016 VA treatment record. VA and private treatment records throughout the relevant initial rating period on appeal do not demonstrate symptoms such as obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, impaired judgment, or near continuous panic or depression affecting the ability to function independently. Furthermore, during the August 2015 VA examination, the Veteran reported that he does most of the household cleaning, is able to shop independently, and can drive as needed, which demonstrates the Veteran's PTSD has not caused total occupational and social impairment. (Continued on the next page) Based on the foregoing, the Board finds that the PTSD has not resulted in total occupational and social impairment for any period. These psychiatric disorder symptoms are not of similar severity, frequency, and/or duration as to those symptoms contemplated by a 100 percent disability rating. Regarding social impairment, during the August 2015 VA examination, the Veteran reported having a supportive relationship with his wife, that he accompanies her at times when shopping, and that they occasionally take walks in the park, go out to eat, or go shopping; furthermore, he has been found to be competent to manage his own financial affairs by both the August 2015 and January 2017 VA examiners. Such evidence reflects the Veteran's social impairment is not total. Here, because the Veteran does not have total social impairment, the criteria for a higher initial rating are not met. A 100 percent rating for a psychiatric disorder requires both occupational and social impairment. 38 C.F.R. § 4.130. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.