Citation Nr: A21020465 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 210413-152103 DATE: December 23, 2021 ORDER Service connection for type II diabetes mellitus is granted. Service connection for right upper extremity diabetic neuropathy as secondary to the now service-connected diabetes disability is granted. Service connection for left upper extremity diabetic neuropathy as secondary to the now service-connected diabetes disability is granted. Service connection for right lower extremity diabetic neuropathy as secondary to the now service-connected diabetes disability is granted. Service connection for left lower extremity diabetic neuropathy as secondary to the now service-connected diabetes disability is granted. Service connection for diabetic nephropathy with chronic kidney disease as secondary to the now service-connected diabetes disability is granted. Service connection for macular edema as secondary to the now service-connected diabetes disability is granted. Service connection for retinopathy as secondary to the now service-connected diabetes disability is granted. Service connection for hypertension is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. Eligibility for assistance in acquiring special adaptive housing is denied. Eligibility for a special home adaptation grant is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his period of service in Thailand during the Vietnam War Era. 2. The Veteran's currently diagnosed type II diabetes mellitus is presumed to be related to in-service exposure to herbicide agents. 3. The Veteran's bilateral upper and lower neuropathy, chronic kidney disease, macular edema, and retinopathy, are due to his diabetes disability. 4. The Veteran is currently diagnosed with hypertension and epidemiologic evidence concludes that there is "sufficient" evidence of an association between hypertension and herbicide agent exposure. 5. The Veteran is not currently service-connected for any disabilities (as of the closing date of this appeal period). CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for type II diabetes mellitus, as due to exposure to herbicide agents, are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309. 2. The criteria to establish entitlement to service connection for right upper extremity diabetic neuropathy are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310. 3. The criteria to establish entitlement to service connection for left upper extremity diabetic neuropathy are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310. 4. The criteria to establish entitlement to service connection for right lower extremity diabetic neuropathy are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310. 5. The criteria to establish entitlement to service connection for left lower extremity diabetic neuropathy are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310. 6. The criteria to establish entitlement to service connection for diabetic nephropathy with chronic kidney disease are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310. 7. The criteria to establish entitlement to service connection for macular edema are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310. 8. The criteria to establish entitlement to service connection for retinopathy are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310. 9. The criteria to establish entitlement to service connection for hypertension as due to herbicide exposure are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 10. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 11. The criteria for eligibility for assistance in acquiring special adaptive housing are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 12. The criteria for eligibility for a special home adaption are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to July 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2020 Appeals Modernization Act (AMA) rating decision that considered the evidence of record on that date. In its decision, the Agency of Original Jurisdiction (AOJ) denied the claims on appeal. The Veteran timely appealed this decision to the Board by requesting the AMA Evidence Submission lane. Under AMA, the Veteran can submit additional evidence within 90 days of his election, and the Veteran submitted evidence within this time period. The April 2020 rating decision found the Veteran's OSA claim could not be reopened due to a lack of new and relevant evidence; however, the Board finds that this was erroneous as the March 2019 rating decision did not become final before the Veteran filed a VA Form 20-0995 supplemental claim. Because the decision was not final, the claim remained open and new and relevant evidence was not required. See 38 U.S.C. § 7105 (b)(2); 38 C.F.R. §§ 3.160; 20.201. As such, the Board need not consider whether new and relevant evidence was received to reconsider the claim. Moreover, the Board notes that an April 2021 letter informing the Veteran of the docketing of his appeal at the Board was not sent to his former representative of record. 38 C.F.R. § 20.1304. However, the Board is granting and/or remanding the majority of the benefits sought on appeal. The claims that have not been awarded herein are being denied as a matter of law. Therefore, there is no prejudice to the Veteran in the failure to provide such notice to his current representative. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the duties to notify and assist are not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Service Connection Laws and Regulations Service connection may be granted for a 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 (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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 38 C.F.R. § 3.310 (a). 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 rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Type II Diabetes Mellitus Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). VA has also determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. If a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat or Don Muang Royal Thai Air Force Base (RTAFB) as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, herbicide exposure should be conceded on a facts-found or direct basis. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309 (e). Under 38 C.F.R. § 3.309 (e), presumptive service connection based on Agent Orange exposure is available for type II diabetes mellitus. The Veteran maintains that his currently diagnosed diabetes is related to in-service herbicide exposure while serving in Thailand. Service personnel records confirm that the Veteran served on Nakhon Phanom RTAFB during the Vietnam War era. In his May 2021 affidavit, the Veteran indicated that he served at Nakhon Phanom RTAFB from January 1974 to January 1975. He has indicated that his living quarters while at the base were 100-200 yards from the perimeter and that the entire area had been cleared and defoliated. The Veteran also reported that he worked as an air weapons controller while at Nakhon Phanom and would often be transported "along the perimeter road to the duty station" where he worked. He indicated that he went "back and forth across and around the perimeter" at least twice a day during the duration of his stay at Nakhon Phanom. The Veteran also provided a statement from a fellow servicemember who indicated that he had served and lived with the Veteran at Nakhon Phanom RTAFB from November 1973 to October 1974. The fellow servicemember confirmed that their living quarters, "the hooch," was "not far from the perimeter." Additionally, the Veteran submitted photographs and a map of Nakhon Phanom RTAFB. See also May 2021Brief from Veteran's Representative. The Veteran also submitted a declassified operations report dated February 1973 from the Directorate of Operations analysis CHECK/CORONA Harvest Division. This report specifically indicated that "heavy use" of herbicides were used at Nakhon Phanom to keep vegetation growth under control "in the fenced areas." The Board acknowledges that the Veteran did not serve in a position which VA has conceded as being exposed to herbicides on the base; however, the Board finds that the evidence submitted by the Veteran indicates that he was required to work and live near the perimeter of the base. Therefore, based on the Veteran's competent and credible lay statements regarding his responsibility as an air weapons controller near and around the perimeter of the bases as a part of his duties while serving in Thailand, the Board finds that all reasonable doubt should be resolved in his favor and it is at least as likely as not that he meets the criteria for conceding exposure to herbicide agents during active military service in Thailand. The remaining inquiry is whether the Veteran currently has the claimed diabetes disability. Private and VA treatment records both confirm a diagnosis of type II diabetes mellitus. Resolving any doubt in the Veteran's favor, his exposure to herbicide agents in Thailand during the Vietnam Era has been conceded. Accordingly, service connection for type II diabetes is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Diabetic Neuropathy, Chronic Kidney Disease, Macular Edema, and Retinopathy As it pertains to the Veteran's claims for bilateral upper and lower peripheral neuropathy, chronic kidney disease, macular edema, and retinopathy, the Board notes that private treatment records confirm diagnoses for these disabilities. See e. g., July 2016 treatment record from Dr. Pan (neuropathy of hands and feet); see also August 2018 statement from Dr. Tyree (diabetic neuropathy diagnosis); see August 2018 statement from Dr. Matthew (noting that the Veteran has diabetes complicated by diabetic nephropathy with chronic kidney diseasestage 3); see also May 2018 treatment record from Retina Associates of St. Louis (confirming a diagnosis of "diabetic macular edema" and "nonproliferative diabetic retinopathy"). As the evidence weighs in favor of a finding that these disorders are secondary to his now service-connected diabetes disability, service connection for diabetic neuropathy, chronic kidney disease, macular edema, and retinopathy is also warranted. Hypertension For the reasons discussed in the previous section, the Veteran is presumed to have been exposed to herbicide agents in service. VA treatment records confirm a diagnosis of hypertension. See e. g., VA treatment record dated July 2018. VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This however does not preclude him from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). However, in November 2018, the NAS upgraded the relationship between hypertension and herbicide exposure from limited/suggestive to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a possible association" between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). The Board notes that the NAS serves as an advisor on scientific matters and is comprised of experts in the given field. The Board finds the NAS upgrade highly probative. In sum, the Veteran has a current medical diagnosis of hypertension and he is presumed to have been exposed to herbicide agents in service. Moreover, as determined, the Board finds probative the epidemiologic evidence supporting a positive association between herbicide agent exposure and hypertension. The Board thus concludes that, at the very least, the evidence of a nexus is in equipoise. Accordingly, the Board, resolving any reasonable doubt in the Veteran's favor, finds that the criteria to establish service connection for hypertension are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TDIU, Special Adapted Housing, and Special Home Adaptation A TDIU may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Specially adapted housing (SAH) under is available to a veteran who has a permanent and total service-connected disability. This permanent and total service-connected disability must either be amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a , Diagnostic Code 8017 or must be due to: (1) the loss or loss of use of both lower extremities, such as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair; (5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809 (a), (b), (d). If entitlement to specially adapted housing is not established, a veteran may qualify for a grant for necessary special home adaptations (SHA) if he has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees (such a disability need not be permanent and total in nature); a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease (COPD)). 38 C.F.R. § 3.809a (b). As noted above, this appeal is before the Board from an April 2020 AMA rating decision that considered the evidence of record on that date. The Veteran timely appealed this decision to the Board by requesting the AMA Evidence Submission lane. Under AMA, the Board may only consider the evidence of record dated prior to July 21, 2021 (90 days after the filing of his notice of disagreement on April 21, 20201). Based on the record dated prior to July 21, 2021, the Veteran is not currently service connected for any disabilities. The minimal threshold requirement for special adaptive housing, special home adaptation grant, and/or a TDIU is that he has a service-connected disability (amongst other requirements). The Veteran does not currently have a service-connected disability. Accordingly, there is no entitlement under the law to the benefits sought and these claims must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board acknowledges that the Veteran has been awarded service connection for multiple disabilities in this decision. However, under the AMA, these grants may not be considered in the adjudication of the issues of entitlement to special adaptive housing, special home adaptation grant, and/or a TDIU. The Veteran is advised that he may file a supplemental claim once the AOJ has implemented the service connection grants in the decision below. Specific instructions for filing a Supplemental Claim are included with this decision. REASONS FOR REMAND Obstructive Sleep Apnea For the reasons discussed in the previous sections, the Veteran is presumed to have been exposed to herbicide agents in service. The Veteran has a confirmed diagnosis of obstructive sleep apnea. See polysomnography report from Barnes-Jewish St. Peter's Hospital, dated in July 2018. Sleep apnea is not among the diseases presumptively linked to herbicide agent exposure. 38 U.S.C. § 1116(a)(2) (2018); 38 C.F.R. § 3.307(a)(6), 3.309(e). Notwithstanding the inapplicability of the herbicide agent presumptive service connection regulations, the Board is obligated to fully consider the Veteran's claims on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The evidence includes an August 2018 statement from Dr. Matthew where it was noted that the Veteran had hypertension, dyslipidemia, and sleep apnea. According to Dr. Matthew "several of these conditions have been reported in the literature to be possibly related to exposure to this agent [Agent Orange]." Given the current diagnosis of sleep apnea, the Veteran's presumed exposure to herbicide agents in service, and Dr. Matthew's statement regarding a possible relationship between sleep apnea and exposure to herbicide agents, a VA medical opinion should have been obtained. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). VA's failure to obtain a medical opinion constitutes a pre-decisional duty to assist error. Remand is required. The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate VA examiner as it pertains to the Veteran's obstructive sleep apnea (OSA). The Veteran is not required to undergo a physical examination unless deemed necessary. The claims file must be provided to the examiner. The examiner is asked to address the following: State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA was incurred in service or is otherwise related to service, to include exposure to herbicide agents. A rationale should be provided for all opinions rendered. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.