Citation Nr: 21005693 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-18 786 DATE: February 2, 2021 ORDER Service connection for diabetes mellitus is granted. Service connection for prostate cancer is denied. Service connection for urinary frequency and incontinence (including as secondary to prostate cancer) is denied. REMANDED Service connection for cataracts (including as secondary to diabetes mellitus) is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus; at his September 2020 Board hearing, he testified that, during service, while stationed at Korat Royal Thai Air Force Base in Thailand, his assigned duties (including assigned guard duty approximately every two weeks and his work as a lineman and electrician) required him to spend time at and near the perimeter of the base and, accordingly, the Board finds (on a facts-found, non-precedential basis) that he was exposed to herbicide agents during service. 2. VA treatment notes from June 2008, August 2013 and February 2016 indicate that the Veteran had negative biopsies of the prostate on both the left and right side. The Veteran’s representative explained at the Board hearing that the Veteran did not have a diagnosis of prostate cancer. 3. A March 2019 VA treatment indicates that the Veteran has a diagnosis of urinary frequency and incontinence. The Veteran’s service treatment records are absent for any reports of urinary or prostate issues. While the Veteran asserts that his urinary frequency and incontinence issues are caused by his prostate cancer, the Veteran is not currently service connected for prostate cancer. CONCLUSIONS OF LAW 1. The criteria have been met for service connection for diabetes mellitus due to in-service herbicide agent exposure. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. 2. The criteria have not been met for service connection for prostate cancer. 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria have not been met for service connection for urinary frequency and incontinence (including as secondary to prostate cancer). §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Service Connection 1. Service connection for diabetes mellitus is granted. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” also known as the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). If a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, or served in a unit that operated in or near the Korean DMZ in an area where herbicides are known to have been used between April 1, 1968, and August 31, 1971, he or she will be presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307 (a)(6). Certain diseases, including diabetes mellitus type II, will be presumed service-connected if a veteran was exposed to herbicide agents in service, even if there is no record of the disease during service. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Additionally, even if a disease is not considered presumed service-connected to exposure to herbicide agents, VA should still address whether there could be a direct link between the Veteran’s diagnosis and herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1042-43 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). There are no regulatory or statutory presumptions regarding herbicide exposure in Thailand. However, VA extends special consideration to reports of herbicide exposure on a factual basis to veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, specifically the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. The duties that are considered to have placed veterans on or near the perimeter include security policeman, security patrol dog handlers, members of the security police squadron, or those who are otherwise shown to have served near the air base perimeter as evidenced by their military occupational specialty (MOS), daily work duties, performance evaluations, and other credible evidence. Factual Background A March 2019 VA treatment indicates that the Veteran has a current diagnosis of diabetes mellitus. At the September 2020 Board hearing, the Veteran testified that during service, while stationed at Korat Royal Thai Air Force Base (AFB) in Thailand, he was assigned guard duty every two weeks and that his work as a lineman and electrician required him to spend time at the perimeter of the base. The Veteran testified that during this period he was exposed to Agent Orange. The Veteran’s spouse testified that that the Veteran spent a couple of weeks in Vietnam prior to being deployed in Thailand. The Veteran’s service treatment records indicate that the Veteran was stationed with the 561st Engineer Co. APO 96233 which is the APO for Korat Royal AFB. Analysis The Board finds that the evidence, including the Veteran’s competent and credible testimony indicates that the Veteran spent time on the perimeter of Korat Royal AFB in Thailand and is presumed to have had exposure to herbicide agents. Because the Board finds (on a facts-found, non-precedential basis) the Veteran was exposed to herbicide agents in service, service connection for his current diabetes is presumed. See 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). 2. Service connection for prostate cancer is denied. Factual Background VA treatment notes from June 2008, August 2013 and February 2016 indicate that the Veteran had negative biopsies of the prostate on both the left and right side. See VA treatment notes. The Veteran’s representative testified that the Veteran did not have a diagnosis of prostate cancer at the Board hearing. Analysis Service connection for prostate cancer must be denied because the Veteran does not have a current diagnosis of prostate cancer. The Veteran has had several biopsies which indicate that the Veteran was negative for prostate cancer on both the left and right side. In the absence of proof of a present disability due to disease or injury, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). Accordingly, even though the Veteran exhibited elevated prostate specific antigens in an August 2017 VA treatment, he was not diagnosed with prostate cancer. Therefore, the appeal in this matter must be denied. 3. Service connection for urinary frequency and incontinence as secondary to prostate cancer is denied. Factual Background A March 2019 VA treatment indicates that the Veteran suffers from urinary frequency and incontinence. The Veteran’s service treatment records are absent for any reports of urinary or prostate issues. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran’s urinary frequency and incontinence are directly causally related to service. The Veteran’s service treatment records are absent for any reports of urinary issues and there is no evidence or allegation that his urinary issues might be directly related to his military service. Accordingly, service connection must be denied on a direct basis because there is no in-service injury or disability. While service connection is available under 38 C.F.R. § 3.310 for a condition that is caused or aggravated by a service-connected disability, and the Veteran claims that his urinary frequency and incontinence is related to his prostate cancer, the Veteran is not service connected for prostate cancer. Accordingly, the theory of secondary service connection must be denied as a matter of law because the claimed prostate cancer is not service connected and there are no other service-connected disabilities to which a theory of secondary service connection could apply. See 38 C.F.R. § 3.310(a). REASONS FOR REMAND Service connection for cataracts as secondary to diabetes mellitus is remanded. A July 2019 VA treatment indicates that the Veteran has a diagnosis of cataracts. The Veteran’s service treatment records are negative for reports of, or treatment for cataracts. The Veteran testified that he believes his cataracts are secondary to his diabetes. The current grant of service connection for diabetes therefore raises the issue of whether the Veteran’s cataracts were caused by or aggravated by his [now service-connected] diabetes. 38 C.F.R. § 3.310. The Veteran has not been afforded a VA medical examination with respect to this disability. The Board notes that a January 2016 VA treatment described the Veteran’s cataracts as a diabetic eye disease. Considering there is evidence of a current disability and an indication of a nexus between cataracts and diabetes mellitus, a remand is required to obtain a medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 The matters are REMANDED for the following action: 1. Please note that this Veteran’s case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for an examination by an appropriate physician to determine the nature and cause of the Veteran’s cataracts. Based on a review of the record and examination of the Veteran, the examiner must respond to the following: a. Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s cataracts were caused by or aggravated by his [now] service-connected diabetes mellitus. (Continued on the next page)   A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.