Citation Nr: 21077606 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-10 244 DATE: December 30, 2021 ORDER Service connection for Type II diabetes mellitus is granted. Service connection for bilateral lower extremity peripheral neuropathy, as secondary to Type II diabetes mellitus is granted. Service connection for erectile dysfunction, as secondary to Type II diabetes mellitus is granted. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran served near the Korean demilitarized zone (DMZ) between September 1, 1967 and August 31, 1971 and is presumed to have been exposed to herbicide agents. 2. The weight of the competent and probative evidence warrants a finding that the Veteran's service-connected Type II diabetes mellitus proximately caused the Veteran's bilateral lower extremity peripheral neuropathy. 3. The weight of the competent and probative evidence warrants a finding that the Veteran's service-connected Type II diabetes mellitus proximately caused the Veteran's erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for Type II diabetes mellitus as due to herbicide exposure are met. 38 U.S.C. §§ 1110, 1116, 1116B, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral lower extremity peripheral neuropathy, as secondary to Type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for erectile dysfunction, as secondary to Type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to December 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision. The Veteran testified at a virtual Board hearing in July 2021. A copy of the hearing transcript is associated with the claims file. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be established on a presumptive basis for certain enumerated diseases listed at 38 C.F.R. § 3.309(e) if a Veteran was exposed to an herbicide agent, such as Agent Orange, during service. Type II Diabetes mellitus is one of the listed diseases presumed to be due to Agent Orange exposure, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Although Veterans who served in Vietnam during the Vietnam era are presumed to have been exposed to herbicide agents, the Veteran in this case served in Korea. There is a limited presumption of exposure to herbicide agents for Veterans who served in Korea near the DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. Prior to January 1, 2020, the presumption of in-service herbicide exposure in Korea was limited to certain Veterans who served in Korea as part of a unit that, as determined by the Department of Defense, operated near the Korean DMZ (in an area where herbicide agents were known to have been applied) between April 1, 1968 and August 31, 1971. 38 U.S.C. § 1116B; 38 C.F.R. § 3.307(a)(6)(iv). During the course of this appeal, the Blue Water Navy Vietnam Veterans Act of 2019 extended the presumption of herbicide agent exposure to Veterans who, during active military, naval, or air service, served in or near the Korean DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. See 38 U.S.C. § 1116B (effective January 1, 2020). Service connection may also be granted on a secondary basis where a condition is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). To warrant service connection on a secondary basis, the evidence must show that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Service connection for Type II diabetes mellitus The Veteran contends that he is entitled to service connection for Type II diabetes mellitus due to exposure to herbicide agents while serving near the Korean DMZ. The Board notes that the agency of original jurisdiction (AOJ) issued a formal finding in September 2012 determining that there was insufficient evidence to corroborate herbicide exposure. The AOJ determined that the Veteran did not serve in a unit that was in the Korean DMZ. This finding, however, was prior to implementation of the Blue Water Navy Vietnam Veterans Act of 2019 that created new statutory requirements for the adjudication of claims based on Veterans' herbicide agent exposure in or near the DMZ. For the reasons that follow, the Board finds that service connection for Type II diabetes mellitus is warranted. Military personnel records confirm that the Veteran served in Korea from November 1968 to December 1969 with Bravo Battery 7th Battalion (HAWK) 5th Artillery. The battalion headquarters were out of Camp Page, approximately 6.2 miles from the DMZ. The Veteran testified that he was located at the top of a Maebong Mountain with missiles set up for air defense. He explained that initially his area was surrounded by dense foliage, but the foliage died after being sprayed with a substance on numerous occasions. Once the foliage was cleared, a double-wall fence was installed around the site. See July 2, 2021, Hearing Transcript. The Veteran submitted additional evidence consisting of various statements from Veterans who also witnessed spraying of foliage during the Veteran's period of service in Korea and including a study that found high pollution levels at most United States bases in South Korea. The survey showed that soil contamination levels at Camp Page stood at more than 108 times above the permissible levels. See April 24, 2018, Correspondence. The Board finds that the lay statements of the Veteran attesting to his own observations while stationed in Korea near the DMZ are supported by additional evidence of record and are deemed to be competent and credible. Based upon this competent and credible evidence, the Board finds that the Veteran served in Korea near the DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. As such, it is presumed that during such service, the Veteran was exposed to herbicide agents. The Veteran's May 2011 VA examination confirmed a current diagnosis of Type II diabetes mellitus. Type II diabetes mellitus is one of the enumerated diseases for which presumptive service connection based on herbicide exposure is available. Accordingly, the Veteran's claim for service connection for Type II diabetes mellitus is granted. 38 U.S.C. § 1116, 1116B, 5107(b); 38 C.F.R. § 3.102, 3.307(a)(6)(iv), 3.309(e); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Service connection for bilateral lower extremity peripheral neuropathy The Veteran contends that his now service-connected Type II diabetes mellitus caused his bilateral lower extremity peripheral neuropathy. For the reasons that follow, the Board finds that service connection for bilateral lower extremity peripheral neuropathy as secondary to Type II diabetes mellitus is warranted. The Veteran's May 2011 VA examination confirmed a current diagnosis of peripheral neuropathy of bilateral lower extremities. The examiner opined that the etiology of bilateral lower extremity peripheral neuropathy was at least as likely as not related to Type II diabetes mellitus nerve dysfunction. The Board finds the May 2011 VA examination and medical opinion to be competent, credible, and highly probative. As there is no contradictory evidence of record, the Veteran's claim for service connection for bilateral lower extremity peripheral neuropathy as secondary to Type II diabetes mellitus is granted. 38 C.F.R. § 3.310(b). 3. Service connection for erectile dysfunction The Veteran contends that his now service-connected Type II diabetes mellitus caused his erectile dysfunction. For the reasons that follow, the Board finds that service connection for erectile dysfunction as secondary to Type II diabetes mellitus is warranted. The Veteran's May 2011 VA examination confirmed a current diagnosis of erectile dysfunction. The examiner opined that the etiology of erectile dysfunction was most likely Type II diabetes mellitus with complication of diabetic neuropathy. The Board finds the May 2011 VA examination and medical opinion to be competent, credible, and highly probative. As there is no contradictory evidence of record, the Veteran's claim for service connection for erectile dysfunction as secondary to Type II diabetes mellitus is granted. 38 C.F.R. § 3.310(b). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, Associate 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.