Citation Nr: 21010846 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-41 040A DATE: February 25, 2021 ORDER Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for hypertension or high blood pressure is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for peripheral neuropathy of the left leg and left foot is remanded. Entitlement to service connection for peripheral neuropathy of the right leg and right foot is remanded. Entitlement to service connection for peripheral neuropathy of the left hand is remanded. Entitlement to service connection for peripheral neuropathy of the right arm and right hand is remanded. FINDINGS OF FACT 1. There is no persuasive evidence that the Veteran was exposed to herbicides during his active duty service. 2. The Veteran’s type II diabetes mellitus is not etiologically related to his active duty service, or claimed herbicide exposure therein. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus, to include as secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 1137, 1154, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served active duty from June 1966 to June 1969. These matters are on appeal before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board notes that the original appeal included a service connection claim for posttraumatic stress disorder (PTSD). However, during the pendency of the appeal, in a December 2020 rating decision, the RO granted service connection for PTSD with a 30 percent evaluation effective December 8, 2011, 100 percent evaluation from August 26, 2014, and 30 percent evaluation from October 1, 2014. As the decision is a full grant of those benefits and the Veteran has not appealed the decision, the claim is no longer before the Board for appellate review. Therefore, the merits of the claim will not be addressed in this decision. Lastly, in February 2019, the Board remanded the claims for further development to verify the Veteran’s service time in Korea beyond February 1968. They have since been returned to the Board for appellate review. Entitlement to service connection for type II diabetes mellitus, to include as secondary to herbicide exposure, is denied. Initially, the Board notes the Veteran has been diagnosed with diabetes mellitus as early as 2002. Available records note that he was treated for uncontrolled diabetes mellitus as early as September 2008. Thus, his disability was not factually shown during service and did not manifest to a compensable degree within one year of separation from service. There is also no continuity of symptomatology as the Veteran’s medical records do not reflect he was treated for symptoms of diabetes mellitus before 2008. The Veteran asserts that his diabetes mellitus is due to herbicide exposure while he was stationed in Korea. He has not asserted that his disability is related to any other injury, event, or cause while in service. His DD 214 confirms he served in Korea. Accordingly, the Board will first address whether the Veteran was exposed to herbicides while on active duty. To establish presumptive service connection for a disease associated with exposure to certain herbicide agents, a claimant can show, in pertinent part, that he served between April 1, 1968 and August 31, 1971 in a unit that, as determined by the Department of Defense, “operated in or near the Korean 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). The Veteran contends that his service records are inaccurate and that he served in Korea when herbicides were present. Specifically, he indicated in his December 2014 VA Form 9 that he was scheduled to leave Korea at a certain time but did not do so for several months later as his duty was extended. During an April 2018 Board hearing, he testified that he served in Korea for 18 months beginning in June 1967 to April… but then stated that he didn’t remember. While the Veteran has repeatedly asserted that his records are incorrect, his personnel records show that he served in Korea from October 20, 1966 to February 14, 1968. Records further show that he was en route to Fort Irwin, California on February 19, 1968 and assigned as a recovery sergeant there in April 1968. See DA Form 20. Moreover, service treatment records show the Veteran was evaluated and treated at Fort Irwin, California in April 1968 at the time the Veteran claims he was in Korea. The Board notes the Veteran previously sent a request to have his records corrected to reflect his claimed extended service in Korea. The claims file contains his request for correction of his DD 214 and other records to indicate that he was serving in Korea in April 1968. However, an October 2013 response shows that only his social security number and rank required correction. He was also sent a copy of his DA Form 20. In a November 2020 letter, the RO instructed the Veteran on how to have his records corrected if he believed they contain inaccurate information about his service in Korea. To date, VA has not received any documentation showing that his duty in Korea was extended, that he served there beyond February 1968, or that any correction is needed. For the reasons stated above, the Veteran is not entitlement to the presumption of exposure to herbicides. Even though the Veteran is not entitled to the presumption pursuant to 38 C.F.R. § 3.307(a)(6)(iii), he may, nonetheless, establish service connection if he has put forth sufficient evidence to demonstrate by an equipoise standard that he was actually exposed to herbicides. During the Board hearing, the Veteran testified that chemicals were being sprayed in Korea since 1955 and he was exposed while in there as he was responsible for going to recover items in the area. A December 2011 letter from a fellow servicemember indicates that the Veteran was exposed to chemicals while serving in Korea. Lastly, the Veteran testified that he went to the infirmary to be treated for symptoms associated with herbicide exposure. However, there is no evidence of record to show that the Veteran was exposed to any herbicides while in Korea and that herbicides were used at the time when he was stationed there. The type of chemicals that were sprayed while he was in Korea are beyond the knowledge of a lay person. The Board notes that the Veteran has not indicated that his type II diabetes mellitus is directly related to service other than his claimed exposure to herbicides while stationed in Korea. Therefore, direct service connection by means other than herbicide exposure is not addressed in this decision as it has not been raised by the Veteran or the evidence of record. Based on the totality of the evidence, the Board finds the Veteran was not exposed to herbicides, to include Agent Orange, while in service, either on a presumptive or direct basis. The Veteran has offered no other theory as to how his diabetes mellitus might be related to service. Therefore, without persuasive evidence he was actually exposed to herbicides, service connection for diabetes mellitus, type II is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for hypertension or high blood pressure is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for peripheral neuropathy of the left leg and left foot is remanded. Entitlement to service connection for peripheral neuropathy of the right leg and right foot is remanded. Entitlement to service connection for peripheral neuropathy of the left hand is remanded. Entitlement to service connection for peripheral neuropathy of the right arm and right hand is remanded. The Board notes that the Veteran has asserted that all of the above-referenced disabilities are related to his non-service connected type II diabetes. As indicated in this decision, the Board has found the Veteran is not entitled to service connection for type II diabetes mellitus. Nevertheless, during the April 2018 Board hearing, the Veteran asserted that these conditions began in service (prior to his diagnosis of type II diabetes mellitus). Regarding the Veteran’s eye disability, he testified that he experienced eye discharge and was prescribed eye drops in service. Post-service treatment records show the Veteran was diagnosed with an eye condition. Concerning his claim for hypertension, the Veteran testified that he was monitored for high blood pressure in service. Service treatment records show that he began having routine checks of his blood pressure in September 1967, while in service. The Veteran also testified that his erectile dysfunction began in service when he was diagnosed with a sexually transmitted disease. Service treatment records show that he was diagnosed with and treated for urethritis. See November 1967 and January 1968 treatment records. Furthermore, during the Board hearing, the Veteran testified that he experienced tingling in his legs and feet during service. An April 1968 service treatment record shows that the Veteran’s great toe was treated following an injury. Lastly, he testified that, in service, he experienced tingling and soreness that began in his fingertips and went up to his arms, as well as, hand cramps that caused him to drop his wrench while working. See April 2018 Board hearing transcript. A review of the claims file shows that the Veteran has been diagnosed with disabilities related to the claims. However, he has not been afforded a VA examination to determine the nature and etiology of the disabilities. Therefore, on remand, he should be scheduled for an examination and a medical opinion should be obtained. The matters are REMANDED for the following action: 1. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any eye disability, other than diabetic retinopathy, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Board notes that the Veteran has been diagnosed with diabetic retinopathy. However, during an April 2018 Board hearing, the Veteran testified that he had an eye condition while in service that caused his eyes to produce a discharge. He also stated that the problem was treated with eye drops. If the Veteran is found to have an eye disability, other than diabetic retinopathy, the examiner should opine as to whether it is at least as likely as not that disorder is related to his military service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history,” 38 C.F.R. § 4.1, of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any hypertension or high blood pressure that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Board notes that the Veteran has been diagnosed with hypertension. In an April 2018 Board hearing, the Veteran testified that his blood pressure was closely monitored and routinely checked. Service treatment records show his blood pressure was routinely checked beginning in September 1967. If the Veteran is found to have hypertension the examiner should opine as to whether it is at least as likely as not that disorder is related to his military service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history,” 38 C.F.R. § 4.1, of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any erectile dysfunction that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Board notes that the Veteran has been diagnosed with an erectile disorder. In an April 2018 Board hearing, the Veteran testified that he began having erectile problems when he was diagnosed with a sexually transmitted disease and it has continued. Service treatment records show he was diagnosed with urethritis. See November 1967 and January 1968 records. If the Veteran is found to have erectile dysfunction the examiner should opine as to whether it is at least as likely as not that disorder is related to his military service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history,” 38 C.F.R. § 4.1, of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any peripheral neuropathy of the left foot, left leg, right foot, or right leg, other than diabetic neuropathy, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Board notes that the Veteran has been diagnosed with diabetic neuropathy. However, in an April 2018 Board hearing, the Veteran testified that he had tingling in his feet and legs while in service, prior to his diagnosis of type II diabetes mellitus. Service treatment records also show he was treated for a great toe injury. If the Veteran is found to have neuropathy of the left foot and left leg, or right foot and right leg, other than diabetic neuropathy, the examiner should opine as to whether it is at least as likely as not that disorder is related to his military service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history,” 38 C.F.R. § 4.1, of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any peripheral neuropathy of the left hand, and right hand, or right arm, other than diabetic neuropathy, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Board notes that the Veteran has been diagnosed with diabetic neuropathy. However, in an April 2018 Board hearing, the Veteran testified that he experienced tingling, soreness, and hand cramps that caused him to drop his wrench while performing duties in service. If the Veteran is found to have peripheral neuropathy of the left hand, right arm, or right hand, other than diabetic neuropathy, the examiner should opine as to whether it is at least as likely as not that disorder is related to his military service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history,” 38 C.F.R. § 4.1, of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.