Citation Nr: 21009628 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 08-28 675 DATE: February 23, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, with associated retinopathy and neuropathy is granted. Entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s diabetes mellitus, type II, with associated retinopathy and neuropathy, is etiologically related to his active duty service. 2. It is at least as likely as not that the Veteran’s erectile dysfunction is caused by his diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, with associated retinopathy and neuropathy, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1970. He received the Bronze Star Medal with “V” device, National Defense Service Medal, and Air Force Good Conduct Medal. In May 2009, the Veteran had a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The VLJ that conducted the May 2009 hearing is no longer with the Board and the Veteran was consequently provided an opportunity to have another hearing. See 38 U.S.C. § 7107(c) (2012). The Veteran has declined the opportunity. See December 2020 Appellate Brief, p. 3. In March 2019, the Board denied service connection for diabetes mellitus, erectile dysfunction and hypertension. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated the Board’s decision with instructions to grant service connection for diabetes mellitus and erectile dysfunction and to remand the service connection claim for hypertension for additional development. In a December 2020 Third Party Correspondence, the Veteran waived agency of original jurisdiction (AOJ) consideration of additional evidence submitted prior to the previous AOJ adjudication of the claims. Service Connection for Diabetes Mellitus Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). However, service connection may also be established by presumption. If a veteran was exposed to herbicide agents while on active duty, presumptive service connection is warranted for several medical conditions, including diabetes mellitus. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). To establish presumptive service connection for a condition associated with exposure to certain herbicide agents, the veteran must show the following: (1) service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) a current condition enumerated under 38 C.F.R. § 3.309(e); and (3) that the current condition has manifested to a compensable degree at any time after service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). Moreover, VA will concede exposure to herbicides if the Veteran shows (1) Vietnam era service at one of the prerequisite Royal Thai Air Force Bases (RTAFBs), and (2) service as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter. The Veteran contends that he was exposed to herbicides while serving in Thailand. In an affidavit received in January 2019, the Veteran stated that he was required to go to the flight line at U-Tapao RTFAB on a daily basis to perform his aircraft maintenance duties. See January 2019 Affidavit, p. 1. He further recalled witnessing reduced vegetation and residue on maintenance stands around the flight line, and he noted that he regularly crossed the perimeter of the base when he had time off. The Board finds the Veteran’s statements regarding his service near the base perimeter in U-Tapao to be credible and corroborated, in part, by contemporaneous personnel records. See December 2006 Military Personnel Records, p. 14; September 2014 Military Personnel Records, pp. 20, 24; September 2014 Certificate of Discharge, p. 1. Accordingly, the Board finds that the Veteran has qualifying service for purposes of presumptive service connection based on herbicide exposure. See 38 C.F.R. § 3.307(a)(6). The Veteran has also submitted evidence of a current diagnosis of diabetes mellitus, type II, with associated retinopathy and neuropathy. See September 2019 Discharge Documentation (Admission Information indicating type 2 diabetes with retinopathy and neuropathy). Evidence as early as October 2010 indicates diagnosis of diabetes mellitus that requires insulin and oral medications for management. See October 2010 VA Examination, pp. 1, 3. Accordingly, the Board finds that the Veteran has sufficiently demonstrated a disability that is entitled to presumptive service connection based on herbicide exposure and that has manifest to compensable degree. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 4.119, Diagnostic Code 7913. All three elements for presumptive service connection based on herbicide exposure have been established. Accordingly, the weight of the evidence preponderates in favor of a finding of entitlement to service connection for diabetes mellitus, type II, with associated retinopathy and neuropathy, and service connection is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Erectile Dysfunction Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has submitted evidence of a current disability. Specifically, the Veteran has been diagnosed with erectile dysfunction. See March 2008 VA Examination, pp. 1-2. As explained above, the Veteran is now service connected for diabetes mellitus. Accordingly, the Board finds that the first and second elements of service connection are established. See Wallin, 11 Vet. App. at 512. Regarding the third element of nexus, a March 2008 VA examiner indicated that it is more likely than not that the Veteran’s erectile dysfunction is a complication of his diabetes. See March 2008 VA Examination, pp. 6-7. As there is no opinion to the contrary, the Board finds that the evidence regarding nexus is at least in equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In resolving all reasonable doubt in the Veteran’s favor, the Board finds that the third element of secondary service connection is established. See Wallin, 11 Vet. App. at 512. Thus, service connection for erectile dysfunction is warranted. REASONS FOR REMAND Service Connection for Hypertension The Veteran’s claim for service connection for hypertension was previously remanded for an opinion that considers the 2006 National Academy of Sciences (NAS) report that indicates that there is “limited or suggestive” evidence of an association between hypertension and herbicide exposure. The September 2015 opinion did not consider this report. See September 2015 VA Examination, pp. 5-6. Accordingly, the claim is remanded for a new opinion that sufficiently complies with the Board’s prior directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, the NAS has since upgraded hypertension from “limited or suggestive” evidence of an association with herbicide exposure to the category of “sufficient” evidence. The new opinion should consider the more recent NAS report. The matter is REMANDED for the following action: Obtain an opinion that addresses the nature and etiology of the Veteran’s hypertension. If deemed necessary by the examiner, schedule the Veteran for an examination. Any indicated evaluations, studies or tests deemed necessary should be accomplished. The claims file should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s hypertension was caused by, aggravated by, or is otherwise etiologically related to the Veteran’s presumed exposure to herbicides during his active duty service. In providing this opinion, the examiner MUST discuss the NAS report which indicates that hypertension may be linked to exposure to herbicide agents (available at: http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A rationale must be provided for any opinion offered as the Board is precluded from making medical findings. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, 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.