Citation Nr: 21008759 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 09-42 362A DATE: February 18, 2021 ORDER Service connection for hypertension is granted. REMANDED The claim for service connection for diabetes mellitus is remanded. The claim for special monthly compensation based on loss of use of a creative organ is remanded. FINDING OF FACT The Veteran has a diagnosis of hypertension, and affording him the benefit of the doubt, his hypertension was as likely as not caused by exposure to toxins in service. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1953 to July 1955. The Veteran died in February 2019, and his surviving spouse has been substituted as the appellant. This case comes to the Board of Veterans’ Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office. In February 2017, the case was remanded by the Board for further development. In May 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge. Due to technical difficulties, a copy of the hearing transcript is unavailable, and it has not been associated with the claims file. In July 2016, the Veteran was advised that the transcript of the hearing could not be obtained, and in August 2016, he indicated that he did not wish to have another Board hearing. Hypertension The Veteran claimed entitlement to service connection for hypertension due either to exposure to contaminated water at Camp Lejeune or due to exposure to toxic chemicals in Korea. The Veteran has written that while stationed in Korea, he was assigned to spraying for mosquitos with a large fogging machine filled with the pesticide D.D.T. The Veteran has submitted multiple journal articles describing the toxic nature of D.D.T. and harm that it has done to wildlife and the environment. Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  VA has recognized that veterans who served at Camp Lejeune for no less than 30 days between August 1, 1953 and December 31, 1987 have potential exposure to contaminants in the base water supply. 38 U.S.C. § 5103A(b)(2)(B). Under this law, there are eight diseases that are presumed to be the result of exposure to contaminated water at Camp Lejeune: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder, kidney or liver cancers, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease. 38 C.F.R. §§ 3.307(a)(7); 3.309(f). The Veteran’s service records confirm that he served at Camp Lejeune during this time, and therefore exposure to contaminated water is presumed. The Board notes that there is a presumption of exposure to herbicide agents for veterans who served in Vietnam during the Vietnam Era and for certain veterans who served in Korea between April 1, 1968, and August 31, 1971 in areas where herbicides were known to have been applied. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii), (iv). The Veteran did not assert that he served in Vietnam, and there is no evidence that the Veteran served in Vietnam or during the Vietnam era. The Veteran also served in Korea from 1953 to 1955, which is many years before the period when the presumption of herbicide agents could be applied. Furthermore, the Veteran’s own written statements were quite emphatic that he was not claiming exposure to herbicide agents such as Agent Orange, but that he was exposed to other toxins, like D.D.T. Even when a disease is not listed among the presumptive disorders associated with contaminated water exposure or herbicide agents, service connection may be established on a direct basis when there is probative medical evidence linking a veteran’s disorder to such exposure or exposure to other toxins. See, e.g., Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). The Board has reviewed all of the evidence of record and finds that, affording the appellant the benefit of the doubt, there is adequate evidence establishing that the Veteran had hypertension which was caused by exposure to chemical toxins in service. The Veteran’s VA treatment records and the May 2018 VA examination indicate that he did have a current diagnosis of hypertension. There is also probative medical evidence linking the Veteran’s hypertension to exposure to chemical toxins in service. A May 2018 VA medical opinion was obtained based on review of the records and a telephone interview with the Veteran. The VA examiner wrote that the Veteran’s hypertension was at least as likely as not related to service, and as rationale wrote that the Veteran was exposed to known carcinogenic herbicides both in Korea and at Camp LeJeune. He wrote that a VA study had found that exposure to chemicals and herbicides was “significantly associated” with the risk of hypertension, and this pointed to a higher prevalence of hypertension in Veterans who were exposed to herbicides. The Board finds that although the VA examiner was someone vague in his rationale and did not specifically address the Veteran’s contentions regarding exposure to D.D.T., this VA examination does constitute probative medical evidence written by a competent VA examiner which is based on a reasonably accurate understanding of the Veteran’s medical history, and it provides adequate medical evidence to support the claim.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  The examiner acknowledged the Veteran’s presumed exposure to chemicals in the water at Camp Lejeune and found that this exposure was, at least in part, the cause of his later development of diabetes mellitus. This medical evidence is consistent with the Veteran’s written statements and the journal articles he submitted regarding the harmful effects of D.D.T. and water at Camp Lejeune. There are no other medical opinions which contradict with its findings. As there is competent and credible medical evidence indicating that the Veteran’s hypertension was as likely as not caused by exposure to chemical toxins in service, and the claim is granted. REASONS FOR REMAND Diabetes Mellitus The Veteran claimed that he had diabetes mellitus due to either exposure to contaminated water at Camp Lejeune or due to exposure to pesticide chemicals, including D.D.T., in Korea. The Board has acknowledged that the Veteran was exposed to contaminated water at Camp Lejeune, but diabetes mellitus is not one of the disorders which has been presumed to be related to Camp Lejeune water toxins. The Board also acknowledges that the Veteran’s assertions of being exposed to D.D.T. in Korea are credible. An August 2008 letter from physician A.M. states that the Veteran was stationed in Korea from 1953 to 1955, and that one of his jobs was pesticide fogging around the rice paddies with D.D.T. He wrote that the Veteran had no respiratory protection and was exposed by skin contact. The Veteran’s colleague P.W. wrote in March 2010 that he had shared a tent with the Veteran in service, and he knew that the Veteran had been assigned to mosquito control in Korea. He wrote that the Veteran had to move, mix, and load the fogging machine with D.D.T. without any mask, gloves, or other safety equipment. Although the Veteran was not treated for diabetes mellitus by his VA treatment providers, the Veteran’s earlier private treatment records show that he did have a diagnosis of diabetes mellitus. As diabetes mellitus is a chronic disease under 38 C.F.R. § 3.309(a), the Board can presume that the Veteran still had a current diagnosis of diabetes when he submitted his claim for service connection. A VA medical opinion was obtained in May 2018. The examiner stated that the condition was incurred in or caused by service, but did not provide any rationale for this finding. The question asked of the examiner, however, asks whether the Veteran’s diabetes was related to herbicide exposure in Korea, and from a review of the report overall, it appears that the examiner was under the false impression that the Veteran had service in Korea during a period when it could be presumed that he had been exposed to herbicide agents, such as Agent Orange, and that a diagnosis of diabetes alone would be sufficient to establishing service connection. See 38 C.F.R. § 3.307(a)(6)(iv). The Board remands this issue so that a new and more accurate medical opinion can be obtained to address whether the Veteran’s diabetes mellitus was at least as likely as not caused by exposure to contaminated water at Camp Lejeune or by exposure to pesticides such as D.D.T. in Korea. Loss of Use of a Creative Organ The Veteran contended that he had loss of sperm and sterility due to exposure to toxins at Camp Lejeune and to D.D.T. in Korea. A VA medical opinion was obtained in May 2018. The examiner wrote that the Veteran’s erectile dysfunction was not due to herbicide exposure, but was secondary to his probable prostate cancer. Unfortunately, the Veteran was not service connected for prostate cancer, so service connection based on this secondary connection alone cannot be granted. Additionally, the examiner appears to have misunderstood the Veteran’s allegations, which was not that he had erectile dysfunction, but that he had infertility and loss of sperm motility caused by exposure to toxins in service. Service connection for the Veteran’s cause of death was granted in an October 2019 rating decision. The rating decision stated that the Veteran’s bladder cancer was presumed to have been caused by exposure to contaminated water at Camp Lejeune. It should therefore be clarified by a VA examiner whether the Veteran had erectile dysfunction, sterility, or loss of sperm motility, which was caused by his bladder cancer, which has been found to be service connected. The examiner should also be asked to address whether the Veteran had any related reproductive disorder which was caused by his exposure to D.D.T. in Korea or by exposure to contaminated water at Camp Lejeune. The matters are REMANDED for the following action: 1. Obtain a medical opinion to address the nature and etiology of the Veteran’s diabetes mellitus. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus had its onset during service or was related to any event in service. Why or why not? The examiner should discuss whether the Veteran’s diabetes mellitus was as likely as not caused by i) his presumed exposure to contaminated water at Camp Lejeune and ii) his credible assertions of having frequent contact with D.D.T. from loading and spraying D.D.T. with a pesticide fogging machine in Korea in the 1950s. 2. Obtain a medical opinion to address the nature and etiology of the Veteran’s claimed loss of use of a creative organ. The examiner should answer the following questions: a) Based on a review of the Veteran’s medical records, did he have a diagnosis of erectile dysfunction, sterility, or loss of sperm motility? Why or why not? b) If yes, is it at least as likely as not (50 percent or greater probability) that such a disorder had its onset during service or is related to any event in service, including due to exposure to contaminated water at Camp Lejeune and exposure to D.D.T in Korea?  The examiner should discuss the Veteran’s reports of having frequent contact with D.D.T. working frequently loading and spraying with a pesticide fogging machine in Korea. c) If yes, is it at least as likely as not that the disorder was either i) caused by or ii) aggravated (made worse) by the Veteran’s bladder cancer, which was found to be service connected in an October 2019 rating decision. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.