Citation Nr: 21011240 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 19-21 276 DATE: March 1, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents, is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, is granted. FINDINGS OF FACT 1. The most probative evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his service at Ubon Royal Thai Air Force Base; therefore, service connection is presumed for his diabetes mellitus. 2. The most probative evidence is at least in equipoise as to whether the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities was proximately due to, a result of, or aggravated by his service-connected diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1952 to March 1956, and from March 1956 to February 1972. He died in 2018. The appellant is his surviving spouse who has been substituted as the claimant. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. The appellant requested a Board hearing on her VA Form 9 in July 2019. Nevertheless, the appellant’s attorney submitted a letter in December 2020 asking that the hearing request be withdrawn. Accordingly, the hearing request has been withdrawn. Legal Criteria – Service Connection 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; 38 C.F.R. § 3.303(a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. Any increase in severity of a nonservice-connected disorder that is proximately due to or the result of a service-connected disorder will also be service-connected. 38 C.F.R. § 3.310. Service connection for certain disorders, including diabetes mellitus type II, may be granted on a presumptive basis if a veteran was exposed to herbicide agents during military service. 38 C.F.R. § 3.309(e). For veterans who served on the ground in Vietnam or within its territorial waters during the Vietnam era, exposure to herbicide agents is conceded. In other circumstances, exposure to herbicide agents is a finding of fact left to the adjudicator. VA has determined that special consideration of exposure to herbicide agents on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases. As such, exposure to herbicide agents should be conceded on a facts-found or direct basis as shown by occupational specialty, performance evaluations, or other credible evidence. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176-77 (2016). Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicide agents The Board finds that the most probative evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his service at Ubon Royal Thai Air Force Base during active military service. Therefore, his diabetes mellitus type II is presumed to be service connected. 38 C.F.R. § 3.309(e). Military personnel records confirm that the Veteran was stationed at Ubon in 1970 and 1971. A performance evaluation for the period between April 1970 and April 1971 described the Veteran’s duties as “airborne navigational aids technician” who “supervises the inspections, modifications, repairs and installations of Navigational Aids equipment on F-4 aircraft. Conducts training for unskilled personnel as required. Additional duty: security NCO.” There is also a form showing that the Veteran requested authorization for temporary duty with another airman, Sergeant T.S., to attend a technical conference in Michigan in January 1971. The record reflects a statement submitted by Sergeant T.S. dated December 2018. He stated, among other things, that the Veteran was his supervisor when they were stationed at Ubon in 1971. He reported that their squadron worked just north of the main runway and that one of their jobs was to attempt to keep aircraft from aborting their mission due to faulty navigation equipment just before takeoff. He stated that this regularly required them to perform maintenance tasks in a defoliated area about six or seven hundred feet from the base perimeter which the airmen called the “last chance area.” When not working in the “last chance area”, Sergeant T.S. stated that he and the Veteran worked in the 8th AMS Maintenance building which was about 500 feet from the perimeter fence. He further stated that they lived in open-air screened enclosures located within 50 to 100 feet of the perimeter fence line, that electric fans would circulate the air for cooling purposes, and that shuttle buses drove them to their duty station through a route along the perimeter fencing areas with the windows rolled down. He also indicated that he attended a technical conference with the Veteran in 1971, and that their return flight to Bangkok was rerouted to Saigon because of fueling issues. He stated that he remembered the portion of the flight from Saigon to Bangkok clearly because he could see flashes from the fighting at night in the area they were flying over. The appellant also submitted a statement in support of the appeal. She reported, among other things, that the Veteran had told her that his plane had stopped in Saigon on the way back to Thailand, and that he told her that he had gone to walk around to see what had happened during the war. She indicated that the Veteran would occasionally talk about the time he spent in Saigon and what was happening to the city at the end of the war. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the appellant shall prevail upon the issue. 38 U.S.C. § 5107(b). The Board finds that the most probative evidence, including the credible lay testimony of Sergeant T.S. and the appellant, reaches the level of equipoise as to whether the Veteran was exposed to herbicide agents during military service. The Board also notes that the performance evaluation from April 1971 lists additional duties of “security NCO”, and that airmen assigned to security duties have been noted to have had higher levels of contact with base perimeters. The Board therefore concludes that, with the benefit of the doubt resolved in the appellant’s favor, a grant of service connection for diabetes mellitus type II on a presumptive basis is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to diabetes mellitus type II The Board finds that the most probative evidence is at least in equipoise as to whether the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities is proximately due to, a result of, or aggravated by service-connected diabetes mellitus type II. Therefore, service connection is warranted. Private medical records show that the Veteran underwent treatment for peripheral neuropathy in April 2015. Electromyographic testing showed, among other things, “electrophysiologic evidence of bilateral ulnar neuropathies across the elbows, manifesting with slow conduction velocities across those segments…” The physician, Dr. M.K., also noted that there was “abnormality of gait” and that the “combination of decreased multimodality sensation in a stocking-like distribution and drop-off of DTR’s would be consistent [with] a neuropathy.” He added that “[diabetes mellitus] would be overwhelmingly the likely cause, but other contributors will be screened via forthcoming labs ordered below.” The record does not show any further reports of follow-up testing, or any evidence to exclude diabetes mellitus as a cause of the Veteran’s neuropathic symptoms. The Board finds that the above evidence is sufficient, under an equipoise standard, to show that the Veteran’s symptoms of peripheral neuropathy were at least as likely as not proximately due to or a result of his diabetes mellitus type II, which has herein been found to be service-connected. See 38 C.F.R. § 3.310. Dr. M.K. diagnosed symptoms of peripheral neuropathy and indicated that the cause of the symptoms would “overwhelmingly” be likely due to diabetes mellitus. Thus, the Board finds that service connection for peripheral neuropathy of the bilateral upper and lower extremities on a secondary basis to diabetes mellitus is warranted. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.