Citation Nr: 21010560 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-01 449 DATE: February 25, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, as secondary to exposure to an herbicide agent, is granted. Entitlement to service connection for coronary artery disease (CAD) (claimed as heart disease) is granted. REMANDED Entitlement to service connection for a prostate disorder is remanded. FINDINGS OF FACT 1. Exposure to herbicide agents in Thailand, during the Vietnam era, has been conceded based on the competent evidence of record, to include the Veteran’s credible and competent testimony regarding how his duties took him near or around the base perimeter. 2. The Veteran has a current diagnosis of diabetes mellitus type II. 3. The Veteran has a current diagnosis of CAD. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II, as secondary to herbicide agent exposure in Thailand, are met. 38 U.S.C. § 1110, 1112, 1116, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for CAD, as secondary to herbicide agent exposure in Thailand, are met. 38 U.S.C. § 1110, 1112, 1116, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to October 1970. This matter comes before the Board of Veteran’s Appeals (Board) from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in October 2019 when the claims were remanded for development. The Board finds the October 2019 remand directives have been substantially complied with regarding the claims of service connection for diabetes mellitus type II and CAD but not regarding the claim of service connection for a prostate condition. The matters are again before the Board. The claim of service connection for a prostate condition will be addressed in the remand section of this decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has recharacterized the Veteran’s claims as they appear on the title page of this decision for clarity purposes and to better reflect the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Generally, service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). To establish service connection for a disability, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases, such as diabetes mellitus type II, ischemic heart disease including coronary artery disease, and prostate cancer, shall be service connected even though there is no record of such disease during service. For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. In addition to exposure within the Republic of Vietnam, exposure to Agent Orange has been noted to have occurred in various places, including Thailand. VA has determined that Veterans who served on RTAFBs at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. Particularly, to benefit from the presumption of herbicide exposure at one of the above listed air bases, a veteran must have served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation, or other credible evidence. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10 (q). This allows for presumptive service connection of the diseases associated with herbicide exposure. See 38 C.F.R. § 3.309 (e). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). Accordingly, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for diabetes mellitus type II, as secondary to herbicide exposure The Veteran seeks service connection for diabetes mellitus type II, secondary to exposure to herbicide agents. In favor of his claim, the Veteran asserts that he was exposed to herbicide agents in Thailand. In a May 2007 statement, the Veteran noted that he was stationed in Nakhom Phanom RTAFB, Thailand where he was in contact with C-130 aircrafts that loaded and disbursed herbicides over Vietnam, areas of Cambodia and Laos. He also asserted that although he was never officially stationed in Vietnam, he did visit the country while he was stationed in Okinawa and Thailand. He explained that while on a cross-training trip from Nakhom Phanom RTAFB, the aircraft he was on experienced problems and had to land at Tan Son Nhut AFB, Vietnam. He noted he was in Vietnam for two days before the flight resumed. See statement of May 2007, associated with the claims file in July 2008. In May 2010, the Veteran also submitted excerpts from an unclassified document titled “Checo Southeast Asia Report, Base Defense in Thailand” herein “Checo Report.” See Checo Report, associated with the claims file in May 2010. The report noted herbicides were employed to assist in the difficult task of vegetation control to further aid in observation at different bases in Thailand. See Checo Report, page 58. Additionally, the report noted that in Nakhom Phanom, heavy use of herbicides kept the vegetation’s growth under control in the fenced areas. See Checo Report page 69. The Board notes the available pages of this report do not specify the types of herbicide agents employed in Thailand. In December 2010 a fellow soldier, who served with the Veteran at Nakhom Phanom RTAFB, Thailand, subscribed a statement where he noted that his and the Veteran’s daily duties included passing through the gated compound of the radar site which exposed them to herbicide agents and that their living quarters were in close proximity to the perimeter fence. See lay statement by Mr. B, dated December 2010 and associated with the claims file in March 2011 and December 2016. The Board finds this statement competent and credible, and assigns it high probative value. The Veteran has also asserted that the radar station where he worked while in Thailand, was located on the outer perimeter of the base, along the fence line. The Veteran asserted that as the location of his duty station was along or near the perimeter, he was exposed to herbicide agents. See Form 9, associated with the claims file in December 2016. The Board finds this statement regarding the location of the radar site competent and credible, and assigns it high probative value. At the August 2019 hearing, the Veteran testified that he was the chief air controller. The Veteran explained there was a compound where he and his crew directed combat aircrafts, almost like an air traffic center. See hearing transcript page 3. He also explained that while in Thailand he would often visit other bases for training purposes as he was a senior weapons controller. See hearing transcript page 4. The Veteran’s DD214 shows the Veteran’s military occupational specialty as weapons controller. See DD214. The Veteran’s military personnel records note the Veteran was assigned in January 1970 to Nakhom Phanom RTAFB, Thailand. See Chronological Listing of Service, Military Personnel Record, associated with the claims file in October 2020. Furthermore, in November 2019, military documents titled “Request and Authorization for Temporary Duty- Military”, herein “travel authorizations”, were associated with the claims file. These travel authorizations show that the Veteran was authorized to travel from Nakhom Phanom RTAFB to Udorn RTAFB and back, by military aircraft, for cross training purposes in February 1970. In April 1970, he traveled from Nakhom Phanom RTAFB to Ubom RTAFB and back for cross training purposes. He was also authorized to travel from Nakhom Phanom RTAFB to U-Tapao RTAFB and back for cross training purposes in May 1970. In June 1970, he travelled from Nakhom Phanom RTAFB to Don Muang RTAFB and back for cross training purposes. In July 1970, he travelled from Nakhom Phanom RTAFB, to Bangkok, to Takhli and back to Nakhom, to brief on tanker refueling operation at the 355th Tactical Fighter Wing. All these travel authorizations noted that travel by military aircraft was directed when available. See travel authorizations, associated with the claims file in November 2019. As previously noted, in order for a Veteran who served at one or more of the specified air force bases in Thailand to benefit from the presumption of herbicide exposure, credible evidence must show or support the finding that he served near the air base perimeter. In the present case, the Board finds that the evidence is at least in equipoise as to whether the Veteran served near the air base perimeter of Nakhom Phanom RTAFB; as the Veteran has provided competent and credible statements that indicated his duties required him to serve near the air base perimeter as his main duty station, the radar site, was located near the perimeter of the base. Resolving doubt, in the Veteran’s favor, the Board finds that the Veteran was exposed to herbicide agents while in Thailand as his duties regularly took him near the perimeter of the base where the radar site was located. In January 2020, the Veteran was administered a Diabetes Mellitus Disability Benefits Questionnaire (Diabetes DBQ). See Diabetes DBQ of January 2020, associated with the claims file in February 2020. The examiner noted a diagnosis of diabetes mellitus type II, managed with insulin, an oral hypoglycemic agent and with regulation of activities. The examiner noted the Veteran does not have any of the recognized complications of diabetes mellitus. Following the examination, the examiner subscribed a medical opinion where he opined that the Veteran’s diabetes is at least as likely as not related to his service and his herbicide agent exposure. See medical opinion of January 2020. Based on all of the above, the Board finds that service connection for diabetes mellitus type II is warranted on a presumptive basis, as the Veteran has a current diagnosis of diabetes type II and the evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents while in Thailand. Resolving doubt in the Veteran’s favor, the Board finds that service connection for diabetes type II is warranted on a presumptive basis, as the evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents while in Thailand. 2. Entitlement to service connection for coronary artery disease (CAD) (also claimed as heart disease). The Veteran seeks service connection for a heart disease. Pursuant to the Board’s remand directives, the Veteran was administered a Heart Conditions Disability Benefits Questionnaire (Heart DBQ) in January 2020. In this Heart DBQ, the examiner noted the Veteran has coronary artery disease (CAD). The examiner noted the Veteran has been treated for CAD with oral medication and that he reported chest pain in the substernal area with exertion, dizziness at times and infrequent early morning headaches, as his current symptoms. See Heart DBQ of January 2020, associated with the claims file in February 2020. As previously noted, if a Veteran was exposed to an herbicide agent during active service in the applicable time period, then certain diseases, such as ischemic heart disease including coronary artery disease (CAD), shall be service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. The Veteran has been conceded herbicide agent exposure while in Thailand. Resolving reasonable doubt in the Veteran’s favor, as the Veteran has a current diagnosis of CAD, and this condition is one of the diseases associated with exposure to an herbicide agent; the Board finds that service connection for CAD, on a presumptive basis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for a prostate disorder In October 2019, the Board remanded the claim of service connection for a prostate disorder for development. Specifically, in the remand directives, the Board requested the examiner to list any prostate disorders the Veteran had, and to opine whether any diagnosed prostate disorder was etiologically related to service, to include exposure to herbicide agents in Thailand. See Board decision of October 2019. Pursuant to the Board remand directives, the Veteran was administered a Prostate Cancer Disability Benefits Questionnaire (Prostate Cancer DBQ) in January 2020. In this examination, the examiner noted the Veteran does not have a voiding dysfunction, recurrent symptomatic urinary tract or kidney infection, prostate cancer nor has ever been diagnosed with prostate cancer. The examiner noted that the Veteran reported that as he gets older, he has experienced symptoms synonymous with prostate problems including erectile dysfunction. Regarding the noted erectile dysfunction, the examiner provided as etiology hypertension and diabetes mellitus type II. No rationale was provided for the noted etiology of the erectile dysfunction. See Prostate DBQ of January 2020. Following the examination, the examiner subscribed a medical opinion where he opined that the claimed condition was less likely as not related to service as there is no evidence of prostate cancer. See medical opinion of January 2020. The Board finds that the examination and medical opinion do not fully comply with the remand directives of December 2019, where the Board requested that the examiner listed any prostate disorders the Veteran may have. The examiner only limited his scope to opining that the Veteran does not have prostate cancer but did not address whether the Veteran has any other prostate disorder and whether such disorder is etiologically related to the Veteran’s service. Furthermore, the Board notes that although the examiner noted the Veteran has erectile dysfunction and provided as etiology the Veteran’s hypertension and diabetes mellitus type II, the examiner did not clearly express whether the Veteran’s erectile dysfunction is a prostate disorder and whether it is etiologically related to the Veteran’s service. Additionally, although the Veteran’s erectile dysfunction was noted as related to his diabetes, which has been granted service connection in the present decision, it was also noted to be related to his hypertension for which he is not service connected. Accordingly, the Board finds the claim must be remanded so that an addendum opinion can be obtained where the examiner clarifies whether the Veteran’s erectile dysfunction, as noted in the Prostate Cancer DBQ of January 2020, is etiologically related to service, to include the Veteran’s conceded exposure to herbicide agents in Thailand, or otherwise caused by or aggravated by any of the Veteran’s service connected disabilities, to include CAD and diabetes mellitus type II. The matters are REMANDED for the following action: 1. Update existing medical records. Any response, including negative responses, must be associated with the claims file. 2. Obtain an addendum opinion regarding the etiology of the Veteran’s erectile dysfunction. The examiner is asked to opine whether the Veteran’s erectile dysfunction is etiologically related to his service, to include his conceded herbicide agent exposure in Thailand, or otherwise caused by or aggravated by any of the Veteran’s service connected disabilities, to include CAD and diabetes mellitus type II. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.