Citation Nr: 21011834 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-18 188 DATE: March 2, 2021 ORDER Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides is granted. REMANDED Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to service-connected disease or injury or as due to exposure to herbicides is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to service-connected disease or injury or as due to exposure to herbicides is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to service-connected disease or injury or as due to exposure to herbicides is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to service-connected disease or injury or as due to exposure to herbicides is remanded. Entitlement to service connection for diabetic retinopathy, to include as due to service-connected disease or injury is remanded. FINDINGS OF FACT 1. The Veteran served at the Royal Thai Air Force Base in Takhli, Thailand from October 1968 to October 1969. 2. Based on his credible assertions of performing various duties in the defoliated perimeter of the Air Force Base in Takhli, Thailand, and resolving all doubt in his favor, the Veteran is found to have been exposed to herbicide agents during his active service. 3. The Veteran has a current diagnosis of type II diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 1112, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1966 to February 1970. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (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). Pertinent VA law and regulations provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to certain designated herbicide agents (i.e., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). The diseases that are listed at 38 C.F.R. § 3.309(e), to include diabetes mellitus, shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Pursuant to its duty to assist, VA has established a procedure for Regional Offices to verify exposure to herbicides in Thailand during the Vietnam Era. See Compensation and Pension (C&P) Bulletin, May 2010. In the May 2010 bulletin, Compensation and Pension indicated that it had determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), Compensation and Pension has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. Given this information, Compensation and Pension has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. Significantly, Compensation and Pension stated that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” Compensation and Pension indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases with duties requiring entry into defoliated areas as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter requiring direct contact with herbicide on a facts found basis, as shown by military occupational specialty, performance evaluations, or other credible evidence. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides The Veteran contends that his diabetes mellitus is due to Agent Orange exposure during his service in Thailand. The Veteran has been diagnosed with Diabetes Mellitus, Type II since at least August 2003. See August 2003 private treatment records. The Veteran’s service personnel records confirm that the Veteran was stationed in Takhli, Thailand from October 1968 to October 1969 as a “shipping clerk.” He testified that his primary duty was to control the shipping of inbound and outbound personal effects of airmen serving at the base. These records do not show any collateral security duties. In May 2015, the Veteran submitted several handwritten letters he sent to his wife during his service in Thailand between 1968 and 1969. Many of the letters reference his training as a security police augmentee, requiring running, crawling, marching, and gun exercises. The Veteran testified during the January 2021 Board hearing that he attended training as a security police augmentee and conducted exercises near the base perimeter and in the areas that had been de-foliated. He testified that he thought his skin and clothes made contact with the herbicide. There is no presumption of exposure but rather the requirement that the Veteran demonstrate that his disability was caused by a disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Here, it is physical contact of some nature with the herbicide agents that is necessary. The Veteran’s statements as to his service duties bringing him to the perimeter of the Air Force Base in Takhli, Thailand are consistent with the evidence of record. The Board finds that the Veteran’s reports of security police augmentee training are credible as they are consistent with his rank and occupation. The Veteran’s military personnel records are extremely positive and reflect superior work ethic. It is reasonable that a shipping clerk would be required to carry out a training in order to supplement the base police force. This is supported by the letters he sent to his spouse during that timeframe. The Veteran credibly reported completing his trainings on the base perimeter. As such, and with no evidence to weigh against those statements, the Board finds that the credible evidence of record supports a finding on a direct basis that the Veteran’s particularly described training as a security police augmentee required him to enter areas on the perimeter of the Air Force Base in Takhli, Thailand and had physical contact with a designated herbicide agent. Accordingly, service connection for type II diabetes mellitus is warranted on a presumptive basis. The appeal is granted. REASONS FOR REMAND 2. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to service-connected disease or injury is remanded. 3. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to service-connected disease or injury is remanded. 4. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to service-connected disease or injury is remanded. 5. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to service-connected disease or injury is remanded. 6. Entitlement to service connection for diabetic retinopathy, to include as due to service-connected disease or injury is remanded. The Veteran has not been afforded a VA examination for his diabetes and complication of his diabetes. The Veteran contends that his right and left, upper and lower extremity peripheral neuropathies and retinopathy are caused by his diabetes. It is not clear based on the treatment records in the claims file whether the Veteran currently has complications from his diabetes, to include the issues on appeal. October 2014 private treatment records reflect diabetes retinopathy. August 2017 VA treatment records explicitly state diabetes mellitus without retinopathy or any other complications, but also note neuropathy in the feet and fingers. The Board cannot make a fully informed decision on these issues because no VA examiner has provided an opinion. Accordingly, an examination is required on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate with the claims file. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private providers and associate them with the claims file. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of and peripheral neuropathy in his extremities. The examiner is asked to list all of the Veteran’s peripheral neuropathy diagnoses and provide an opinion for each on: (a.) whether the peripheral neuropathy is at least as likely as not caused by an in-service injury, event, or disease, including exposure to Agent Orange on a direct basis. (b.) whether the peripheral neuropathy is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of retinopathy. The examiner is asked to determine if the Veteran has retinopathy and if so, provide an opinion on whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. 5. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.