Citation Nr: 21014435 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-21 097 DATE: March 12, 2021 ORDER Entitlement to service connection for chloracne, to include as due to herbicide agent exposure is denied. REMANDED Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and/or secondary to his service-connected PTSD is remanded. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus is remanded. FINDINGS OF FACT The evidence does not show that the Veteran has had chloracne at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW The criteria for service connection for chloracne are not met. 38 U.S.C. §§ 1110, 1131, 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 in the United States Air Force from October 1966 until his honorable discharge in October 1970, to include service as an Administrative Specialist at the U-Tapao Royal Thai Air Force Base from January 4, 1969 until February 10, 1970 with service at Detachment 30, 10th Weather Squadron. These matters come before the Board of Veterans’ Appeals (Board) on appeal from the June 2014 and July 2017 rating decisions by the Huntington, West Virginia Regional Office (RO) of the United States Department of Veterans Affairs (VA). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including type II diabetes mellitus, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has determined that special consideration should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, to include U-Tapao Royal Thai Air Force Base, Ubon Royal Thai Air Force Base, Nakhon Phanom Royal Thai Air Force Base, Udorn Royal Thai Air Force Base, Takhli Royal Thai Air Force Base, Korat Royal Thai Air Force Base, and Don Muang Royal Thai Air Force Base. If a Veteran served on one of these air bases 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 MOS, performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include chloracne or other acneform disease consistent with chloracne and type II diabetes mellitus. 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for chloracne, to include as due to herbicide agent exposure The Veteran asserts that his chloracne is related to in-service herbicide agent exposure. The Board finds, however, that there is not evidence showing any current disability. The record does not contain a diagnosis of chloracne nor other acneform disease consistent with chloracne. At the core of service connection is functional impairment, which can be a disability even if there is no underlying diagnosis. Here there is no assertion of functional limitation due to chloracne. In the absence of a disability during the pendency of the claim, service connection cannot be established. Accordingly, entitlement to service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 50 percent for PTSD is remanded. The March 2012 VA examination, the July 2017 VA examination, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood and chronic sleep impairment) [both from the March 2012 VA examination with no other symptoms]. However, the July 2017 VA examiner found that the Veteran had symptoms associated with a 50 percent rating (flattened affect; and circumstantial speech, circumlocutory or stereotyped speech) with no other symptoms found. The Board notes that the Veteran’s Board testimony, the Veteran asserted symptoms of intrusive thoughts of trauma, depression, anxiety, sleep problems, and anger problems on a weekly basis. However, neither VA examination found these symptoms to be present and the Veteran did not endorse the symptoms prior to the testimony. These additional symptoms appear to be describing a worsening of his disability. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). For the above reasons, remand is required for an additional VA examination. 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and/or secondary to his service-connected PTSD is remanded. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, has a presumptive disease during the pertinent presumptive period, or is service-connected for a disability that may have caused or aggravated the Veteran’s disability; and (3) indicates that the claimed disability may be associated with the in-service event, injury, disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran was diagnosed with hypertension in February 2011; the Veteran is service-connected for PTSD; and the Veteran’s hypertension may be related to his service-connected PTSD. Because there is evidence of currently diagnosed disabilities, a service-connected disability, and an indication that the current disabilities may be associated with the service-connected disability, remand for a VA examination is required. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because no examiner has opined whether the Veteran’s disability is at least as likely as not (50 percent probability or greater) was caused or aggravated beyond its natural progression by his service-connected PTSD. 3. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure is remanded. During the Board hearing, the Veteran testified that he was assigned to a small weather detachment as an administrative person stationed in the base operations building directly on the flight line and the base perimeter. Furthermore, the Veteran testified that he was the only administrative person assigned to the unit and also had duties as “the gopher” for the squadron, which required him to run errands, resulting in traveling all over the base at times “near barrels” that were located all over the base with spillage of Agent Orange getting on his hands that he rubbed into his hands with a rag. The Board notes that the Control Tower and Headquarters building were both located at the center of the U-Tapao Royal Thai Air Force Base directly on the western side of the flight line and neither of the buildings were on the base perimeter. Furthermore, the Board notes that the record indicates that the Veteran was the only administrative person assigned to the unit and that he spent considerable time performing his administrative duties. However, although the record clearly indicates that he performed considerable duties in the office, there is no evidence to support the Veteran’s assertions of duties being a “Gopher.” Because the Veteran’s personnel records appear to be incomplete, remand is required to obtain the complete personnel records to obtain his performance reviews and any other evidence to support the Veteran’s additional duties. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus is remanded. Finally, because a decision on the remanded issue of entitlemen to service connection for type II diabetes mellitus due to herbicide agent exposure could significantly impact a decision on the issue of entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus, the issues are inextricably intertwined. A remand of the claim for entitlement to service connection for erectile dysfunction is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the entire period on appeal, including but not limited to the C.W. Bill Young VAMC (Bay Pines), Palm Harbor CBOC, and Laughlin VA CBOC. 2. Obtain the Veteran’s complete service personnel records. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to document the severity of the service-connected PTSD. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire should be utilized. 4. After any additional records are associated with the claims file, schedule the Veteran for a VA examination for his hypertension. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is the Veteran’s hypertension at least as likely as not proximately due to his service-connected PTSD? Why do you say so? (b) Is the Veteran’s hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected PTSD? Why do you say so? 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.