Citation Nr: 21006494 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-19 967 DATE: February 4, 2021 ORDER Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for type II diabetes mellitus is granted. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to diabetes mellitus, is granted. REMANDED Entitlement to service connection for glaucoma, as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicides in service. 2. The Veteran has a current diagnosis of prostate cancer. 3. The Veteran has a current diagnosis of type II diabetes mellitus. 4. The Veteran has a current diagnosis of diabetic neuropathy of the bilateral lower extremities. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116B, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116B, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for establishing service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 1116B, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1968 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2015 and April 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. Service Connection 1. Entitlement to service connection for prostate cancer 2. Entitlement to service connection for type II diabetes mellitus Generally, 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). 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 current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain conditions, including prostate cancer and type II diabetes mellitus, shall be presumed to be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Previously, a veteran would only be presumed to have been exposed to an herbicide agent if the record demonstrated service between April 1, 1968, and August 31, 1971, in a unit that the Department of Defense determined operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period. 38 C.F.R. § 3.307(a)(6)(iv) (2018). Recent legislation has expanded the presumption of herbicide agent exposure as of January 1, 2020, for certain veterans who served in Korea. 38 U.S.C. § 1116B. Specifically, the legislation provides that the presumption of exposure will apply to a veteran “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.” Notably, the legislation contains no reference to units designated by Department of Defense; it simply refers to veterans who “served in or near” the DMZ. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the record contains evidence of current diagnoses of prostate cancer and type II diabetes mellitus. The question, then, is whether the Veteran had service “in or near” the Korean DMZ during the appropriate time period for purposes of the expanded presumption. The Veteran’s service personnel records reflect that, while on active duty in Korea, he was assigned to the 1st Battalion, 42nd Artillery from January 1969 to June 1969, then to the 226th Signal Company from June 1969 to June 1970. In May 2010, the Veteran submitted a written statement reporting that he was occasionally temporarily assigned to units that were stationed in the DMZ, and that he recalls going to Camp Casey on several occasions. Although VA was unable to verify the Veteran’s assertion that he joined units in the DMZ on temporary duty, the records research determined that his official units were stationed at Camp Page. The records research did not determine the distance of Camp Page from the DMZ in this particular case. However, the Court has recognized that Camp Page was situated approximately six miles from the DMZ; although this information was included in non-precedential decisions, the Court recognized the same finding on four separate occasions. See Anglin v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1850 (Dec. 28, 2017); Richardson v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1586 (Oct. 31, 2017); Brester v. McDonald, 2014 U.S. App. Vet. Claims LEXIS 1506 (Aug. 29, 2014); and Henderson v. Shinseki, 2011 U.S. App. Vet. Claims LEXIS 997 (May 3, 2011). The Board finds the Veteran’s assertions regarding temporary duties at the DMZ credible as his official duty station was only six miles from the DMZ. Moreover, there is no evidence of record that directly weighs against the Veteran’s assertions of performing duties on a temporary basis at the DMZ. Thus, the Board finds the evidence is at least in equipoise regarding whether the Veteran was in or near the DMZ during the period when herbicides were used. Therefore, the presumption regarding herbicide exposure applies, and service connection for prostate cancer and diabetes mellitus is granted. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to diabetes mellitus Service connection may be granted on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995). The Veteran first sought treatment for pain and numbness in his left foot in November 13, 2006. He now has symptoms in both legs and feet. A November 2010 VA physical therapy note distinguishes the Veteran’s complaints of bilateral leg and foot pain from the mechanical low back pain he was in physical therapy to treat, noting that these complaints were related to the neuropathy instead. The evidence establishes that the Veteran’s bilateral peripheral neuropathy is due to his diabetes mellitus, as the diagnosis of the foot and leg complaints was determined by the Veteran’s treating physicians to be diabetic neuropathy. As service connection for diabetes mellitus has been granted above, and there is evidence the current bilateral neuropathy disability is due to the diabetes mellitus, the Board finds service connection for peripheral neuropathy of the bilateral lower extremities is warranted. REASONS FOR REMAND 1. Entitlement to service connection for glaucoma, as secondary to diabetes mellitus, is remanded. The record reflects a diagnosis of glaucoma, but the VA medical records do not specify whether the Veteran’s glaucoma was caused or aggravated by his diabetes mellitus. As there is no medical evidence in the record of a nexus between the current disability and the service-connected diabetes, a remand is necessary to obtain an opinion regarding any relationship between the Veteran’s diabetes mellitus and glaucoma. The matter is REMANDED for the following action: 1. Forward the claims file to an appropriate clinician to determine whether the Veteran’s glaucoma is related to his military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the glaucoma began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the glaucoma is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected type II diabetes mellitus. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the glaucoma prior to aggravation by the service-connected diabetes mellitus. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner should address all pertinent evidence of record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.