Citation Nr: A21020388 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 211020-193703 DATE: December 22, 2021 ORDER Entitlement to service connection for diabetes is granted. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is granted. REMANDED Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The credible evidence of record demonstrates that the Veteran's duties at the Nakhun Phanom Royal Thai Air Force Base (RTAFB) were performed near the base perimeter, herbicide exposure is conceded on a facts found basis. 2. The Veteran has a diagnosis of diabetes and bilateral lower extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to March 1968. The rating decision on appeal was issued in May 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct 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. 38 C.F.R. § 20.301. As an initial matter the Board observes that the Veteran was originally denied service connection for the claimed conditions in a January 2007 rating decision. The Veteran filed a VA Form 20-0995, Supplemental Claim in March 2020. The May 2021 rating decision found new and relevant evidence had been received. This is a favorable finding for the Veteran that will not be readjudicated by the Board. Additionally, the Board has bifurcated the issue of entitlement to service connection for peripheral neuropathy based on the bilateral upper and lower extremities. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011). Finally, the Board acknowledges the Veteran and his representative's argument that he is entitled to service connection for a heart disability and notes that a May 2020 VA Form 21-526EZ was submitted for that issue. However, as the AOJ has not adjudicated the issue, the Board also cannot adjudicate that issue. The appellant may submit a claim to the AOJ or notify the AOJ that the issue is still pending. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence for certain diseases, including diabetes and peripheral neuropathy, will be presumed based on an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. All veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. Notwithstanding the foregoing, a Veteran may establish service connection with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran is seeking service connection for diabetes mellitus and peripheral neuropathy secondary to diabetes, which he contends is etiologically related to exposure to herbicide agents while on active duty service. There is no dispute that the Veteran has diagnoses of diabetes mellitus or peripheral neuropathy of the bilateral lower extremities; as such were favorable findings identified in the May 2021 rating decision. 38 C.F.R. § 20.801(a). The claims for service connection turn on whether such disabilities are related to service. The Board finds the evidence at least in equipoise that the Veteran was exposed to herbicides during his service in Thailand due to credible evidence that his daily work duties placed him near the perimeter of the Nakhun Phanom RTAFB. The Veteran contends that he was exposed to herbicide agents during his daily occupational duties as an inventory management specialist out of an office close to the airstrip and perimeter of Nakhun Phanom RTAFB. Additionally, he reported that his living quarters were also located close to the perimeter and that he crossed the perimeter every day. The record confirms that the Veteran was stationed at Nakhun Phanom RTAFB and that his primary occupation was as an Inventory Management Specialist during active duty service. In support of his claim, the Veteran submitted a declassified report entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand," that shows that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. While the Report did not discuss the use of tactical herbicides on allied bases in Thailand, it did indicate sporadic use of non-tactical, or commercial, herbicides within fenced perimeters. An affidavit is also of record that describes the Veteran's proximity to the base perimeter and includes aerial photographs of the Nakhun Phanom RTAFB. The Veteran described working working from the supply department office and playing basketball two blocks from the flight line and base perimeter. Regarding the credibility of his assertions that his duties as an Inventory Management Specialist were performed near the perimeter of the air base in defoliated areas, the Board notes that there is no evidence in the claims file that contradicts such statements and his reports of working near the air base's perimeter are internally consistent. In addition, the Board acknowledges the photographs of the air base coupled with the Veteran's explanation that they depict heavy defoliation for safe flight operations and security purposes and that the airstrip was located close to the perimeter demonstrate that his duties were on or near the perimeter of the base. Accordingly, the Board finds the Veteran's lay statements to be credible, and herbicide exposure is conceded. In light of the fact that herbicide exposure is found and that the Veteran was diagnosed with diabetes and bilateral lower extremity peripheral neuropathy, service connection will be presumed under the provisions of 38 C.F.R. § 3.309(e). The benefits sought on appeal are granted. REASONS FOR REMAND When the Board identifies a pre-decisional duty to assist error in an AMA appeal, remand is warranted. 38 C.F.R. § 20.802(a). 1. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. The Veteran's claim for service connection for bilateral upper extremity peripheral neuropathy was bifurcated from the claim for peripheral neuropathy for all extremities. The Veteran contended in his June 2020 affidavit that he experienced constant numbness and tingling in his hands that he attributed to bilateral upper extremity peripheral neuropathy. However, a February 2021 diabetic sensory motor peripheral neuropathy Disability Benefits Questionnaire (DBQ) declined to diagnose peripheral neuropathy of the upper extremities. The reviewing examiner did not note any numbness, paresthesias, or dysesthesias affecting the upper extremities at the time of examination, but did not consider the Veteran's competent statements regarding his symptomatology. Layno v. Brown, 6 Vet. App. 465, 471 (1994). Remand is warranted to obtain a VA medical opinion that addresses all relevant evidence of record. See 38 U.S.C. § 5103A(d)(2). Entitlement to service connection for hypertension is remanded. The Veteran is seeking service connection for hypertension which he contends is etiologically related to active service, to include exposure to herbicide agents and/or secondary to service-connected diabetes. Remand is warranted to correct a pre-decisional duty to assist error and afford the Veteran an examination. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Regarding the first requirement under McLendon, VA treatment records indicate that the Veteran has a present diagnosis of hypertension. A review of the Veteran's separation examination report reveals that the Veteran reported experiencing pain or pressure in his chest. As noted above, the requirement that the evidence of record "indicate" that the claimed disability or symptoms may be associated with an established event, is a low threshold. McLendon, 20 Vet. App. at 83. Accordingly, the Board finds the evidence of record at the time of the May 2021 rating decision was sufficient to trigger a duty to assist the Veteran in the development of this claim that included providing a VA examination. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Remand is warranted to obtain an examination regarding the nature and etiology of the Veteran's claimed hypertension. The matters are REMANDED for the following actions: 1. Obtain an opinion from an appropriately qualified clinician to determine whether the Veteran has a diagnosis of the Veteran's bilateral upper extremity peripheral neuropathy present during the appeal period. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The reviewing clinician is reminded that a disability may resolve while the appeal is pending and a finding that there is no current disability is insufficient. In making these determinations the reviewing clinician must specifically consider and address the Veteran's statements regarding his bilateral hand symptomatology. 2. Obtain an VA examination from an appropriately qualified clinician to determine the nature and etiology of the Veteran's hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. After the record review and examination of the Veteran, the reviewing clinician must opine on whether it is at least as likely as not that the Veteran's hypertension is (a.) related to an in-service injury, event, or disease, to include herbicide exposure; (b.) proximately due to service-connected diabetes; (c.) aggravated beyond its natural progression by his service-connected diabetes. The reviewing clinician is advised that a finding that hypertension was aggravated beyond the normal progression due to diabetes may encompass any additional incremental increase in disability resulting from the low back condition regardless of its permanence. (Continued on the next page) If an opinion cannot be provided without resorting to speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. Odya-Weis Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.