Citation Nr: 21015160 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-00 079 DATE: March 16, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, claimed as due to in-service exposure to herbicide agents, is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for obesity is denied. REMANDED Entitlement to service connection for visual impairment is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for restless leg syndrome of the left leg is remanded. Entitlement to service connection for restless leg syndrome of the right leg is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for cerebrovascular disease, claimed as a stroke, is remanded. Entitlement to service connection for balance issues is remanded. Entitlement to service connection for heart disease is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Board concludes that he was exposed to an herbicide agent while at stationed at Udorn Royal Thai Air Force Base (RTAFB). 2. The Veteran's diabetes mellitus, type II, is presumed to be related to his in-service exposure to an herbicide agent. 3. Giving the Veteran the benefit of the doubt, the Veteran’s service-connected diabetes mellitus, type II, more likely than not caused or aggravated the Veteran’s hypertension. 4. Giving the Veteran the benefit of the doubt, the Veteran’s service-connected diabetes mellitus, type II, more likely than not caused or aggravated the Veteran’s erectile dysfunction. 5. Obesity is not a disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for hypertension on a secondary basis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for entitlement to service connection for erectile dysfunction on a secondary basis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for service connection for obesity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1971. The Veteran has received the Republic of Vietnam Campaign Medal and the Vietnam Service Medal. This matter comes to the Board of Veterans' Appeals (Board) from May 2014 and June 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 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, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may also be granted for certain specified diseases on a presumptive basis if a veteran was exposed to Agent Orange during active service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(b), 3.309(e). A veteran is presumed exposed to Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962, through May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Department of Defense has also confirmed to VA that herbicides were used in Thailand during the Vietnam Era. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (AFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. 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 (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. This applies only during the Vietnam Era. The list of diseases associated with exposure to these herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and also stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Lastly, the availability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for diabetes mellitus, type II The Veteran and his representative contend that his diabetes mellitus, type II, is due to in-service exposed to herbicides while stationed in Thailand. A condition precedent for establishing service connection is the presence of a current disability. As an initial matter, the Board notes that the Veteran's VA treatment records confirm a diagnosis of diabetes mellitus, type II, to include confirmation of the diagnosis in a VA examination in January 2014. The Board finds that the first element for establishing service connection has been met. As diabetes mellitus, type II, is one of the diseases presumed to be due to in-service exposure to herbicides, the Veteran need only establish that he either directly was exposed to herbicides or is presumed to have been exposed to herbicides to be entitled to service connection. 38 C.F.R. § 3.307(a)(6)(iii), 38 C.F.R. § 3.309(e). In that regard, the Board notes that the Veteran has consistently asserted that he was exposed to herbicide agents during his service in Thailand in connection with the duties associated with his MOS as a jet engine mechanic. More specifically, in a statement in support of his claim, dated in February 2013, the Veteran reported that while stationed at Udorn RTAFB, he related that he performed work at the base perimeter involving engine trim pads. In his November 2014 notice of disagreement, the Veteran also stated that his living quarter on the base were also close to the perimeter and that he also came into close proximity to the perimeter the process of “performing life sustaining tasks” at the base. This was further demonstrated by way of an ariel photograph, on which the Veteran pointed to various locations on the photograph where he was regularly between 20 and 30 yards of the base perimeter, which included his first barracks, the mail room, the engine trim pads, the F-4 revetments, aircraft maintenance areas, and at times, the location of the bus stop for the base bus. The Veteran has also consistently asserted that as a mechanic he would travel to Vietnam for short missions. For example, in the February 2013 statement, he stated that he travelled to remote radio relay stations in Vietnam as part of supply/delivery runs made via helicopter in support of their mission. Engine mechanics were “part of the flight and support team. Moreover, the Veteran was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. The Board further notes that there is no evidence that directly contradicts the Veteran’s statements in regard to any of the above contentions, and the Court has consistently held that the credible statements of the Veteran cannot be impeached solely on the lack of official confirmation by way of service department records. The Board finds the Veteran's statements concerning in-service exposure to herbicide agents on the perimeter of the Udorn RTAFB and as a result of in-country missions to Vietnam to be credible, and that based on his statements and supporting evidence, the evidence of record supports a finding that the Veteran was exposed to herbicide agents on a facts-found basis. Therefore, herbicide exposure is conceded and the second element for establishing service connection has been met. As outlined above, the Veteran is presumed exposed to herbicide agents, and therefore, the Veteran is entitled to presumptive service connection for diabetes mellitus, type II. As such, service connection for this disability is warranted. 38 C.F.R. §§ 3.307, 3.309. 2. Entitlement to service connection for hypertension 3. Entitlement to service connection for erectile dysfunction The Veteran and his representative contend that the Veteran is entitled to service connection for hypertension and erectile dysfunction as secondary to his service-connected disabilities. The first element for secondary service connection is satisfied in that the Veteran was diagnosed with hypertension and erectile dysfunction, as noted in VA examinations from January 2014. The evidence relating to the final nexus element for secondary service connection is positive. The Veteran was afforded VA examinations in January 2014. The January 2014 VA examiner concluded that the Veteran’s hypertension and erectile dysfunction are more likely than not secondary to the Veteran’s service-connected diabetes mellitus, type II. The VA examiners opinion is probative because it is based on a review of the record and contain a clear conclusion with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). The evidence contained in this opinion further supports the existence of a nexus between the Veteran’s hypertension and erectile dysfunction with the Veteran’s service-connected diabetes mellitus, type II. Therefore, giving every reasonable doubt to the Veteran with respect to these claims, the Board finds that the Veteran’s service-connected diabetes mellitus, type II more likely than not caused or aggravated the Veteran’s hypertension and erectile dysfunction, and that service connection for hypertension and erectile dysfunction are therefore warranted. 4. Entitlement to service connection for obesity The Veteran and his representative contend that the Veteran’s obesity is caused by his service-connected diabetes mellitus, type II. Unfortunately, however, the law precludes the Board from considering the Veteran's claim for service connection for obesity. VA's Office of General Counsel (OGC) has held that obesity is not considered a disease or injury under VA's laws and regulations and may not be service connected on a direct or secondary basis. The Board is bound by the General Counsel's opinion as Chief Legal Officer of the Department. 38 U.S.C. § 7104(c). Consequently, the Veteran's claim of service connection for obesity must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). REASONS FOR REMAND 1. Entitlement to service connection for visual impairment is remanded. 2. Entitlement to service connection for obstructive sleep apnea is remanded. In this case, the Veteran and his representative contend he is entitled to service connection for a visual impairment and obstructive sleep apnea as secondary to his service-connected diabetes mellitus, type II. As will be explained below, the Board finds a remand necessary in order to provide the Veteran with VA examinations to determine the nature and etiology of these claimed disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006); 38 U.S.C. § 5103(d)(2); 38 C.F.R. § 3.159(c)(4)(i). A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. As for the Veteran’s claim for a visual impairment, the Veteran's medical records indicate he is currently diagnosed and being treated for mild cataracts and dry eyes. Therefore, the Board finds adequate evidence of a current disability satisfying the first element under McLendon. While the Veteran was previously afforded a VA examination for his claimed visual impairment, the VA examiner did not adequately address the Veteran’s noted treatment for mild cataracts and dry eyes in the examination. Further, the Veteran and his representative contend his visual impairment is secondary to his service-connected diabetes mellitus, type II. As such, the Board will tentatively find evidence satisfying the second element under McLendon. Regarding the third and fourth elements, there is an indication his visual impairment could be related or aggravated by his service-connected diabetes mellitus, type II, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Board finds a remand necessary so that the Veteran can be afforded an appropriate VA examination and etiological opinion. As for the Veteran’s claim for sleep apnea, the Veteran's medical records indicate he is currently diagnosed and being treated for obstructive sleep apnea. Therefore, the Board finds adequate evidence of a current disability satisfying the first element under McLendon. Further, the Veteran and his representative contend his obstructive sleep apnea is secondary to his service-connected diabetes mellitus, type II. As such, the Board will tentatively find evidence satisfying the second element under McLendon. Regarding the third and fourth elements, there is an indication his obstructive sleep apnea could be related or aggravated by his service-connected diabetes mellitus, type II, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Board finds a remand necessary so that the Veteran can be afforded an appropriate VA examination and etiological opinion. 3. Entitlement to service connection for a left ankle disability is remanded. 4. Entitlement to service connection for a right ankle disability is remanded. 5. Entitlement to service connection for restless leg syndrome of the left leg is remanded. 6. Entitlement to service connection for restless leg syndrome of the right leg is remanded. 7. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 8. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. In this case, the Veteran and his representative contend he is entitled to service connection for bilateral ankle issues (to include swelling), bilateral restless leg syndrome, and bilateral peripheral neuropathy of the lower extremities as secondary to his service-connected diabetes mellitus, type II. As will be explained below, the Board finds a remand necessary in order to provide the Veteran with VA examinations to determine the nature and etiology of these claimed disabilities. See McLendon, 20 Vet. App. at 81-86; 38 U.S.C. § 5103(d)(2); 38 C.F.R. § 3.159(c)(4)(i). A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. As for the Veteran’s claim for bilateral ankle disabilities, the Veteran's medical records indicate he has been treated for ankle swelling. Therefore, giving the Veteran the benefit of the doubt, the Board finds adequate evidence of a current disability satisfying the first element under McLendon. Further, the Veteran and his representative contend his bilateral ankle disabilities are secondary to his service-connected diabetes mellitus, type II. As such, the Board will tentatively find evidence satisfying the second element under McLendon. Regarding the third and fourth elements, there is an indication that his bilateral ankle disabilities could be related or aggravated by his service-connected diabetes mellitus, type II, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Board finds a remand necessary so that the Veteran can be afforded an appropriate VA examination and etiological opinion. As for the Veteran’s claim for bilateral restless leg syndrome, the Veteran's medical records indicate he is currently diagnosed and being treated for bilateral restless leg syndrome. Therefore, the Board finds adequate evidence of a current disability satisfying the first element under McLendon. Further, the Veteran and his representative contend his bilateral restless leg syndrome is secondary to his service-connected diabetes mellitus, type II. As such, the Board will tentatively find evidence satisfying the second element under McLendon. Regarding the third and fourth elements, there is an indication that his bilateral restless leg syndrome could be related or aggravated by his service-connected diabetes mellitus, type II, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Board finds a remand necessary so that the Veteran can be afforded an appropriate VA examination and etiological opinion. As for the Veteran’s claim for bilateral peripheral neuropathy of the lower extremities, the Veteran's medical records indicate he is currently diagnosed and being treated for bilateral peripheral neuropathy of the lower extremities. Therefore, the Board finds adequate evidence of a current disability satisfying the first element under McLendon. Further, the Veteran and his representative contend his bilateral peripheral neuropathy of the lower extremities is secondary to his service-connected diabetes mellitus, type II. As such, the Board will tentatively find evidence satisfying the second element under McLendon. Regarding the third and fourth elements, there is an indication that his bilateral peripheral neuropathy of the lower extremities could be related or aggravated by his service-connected diabetes mellitus, type II, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Board finds a remand necessary so that the Veteran can be afforded an appropriate VA examination and etiological opinion. 9. Entitlement to service connection for cerebrovascular disease, claimed as a stroke, is remanded. 10. Entitlement to service connection for balance issues is remanded. 11. Entitlement to service connection for heart disease is remanded. In this case, the Veteran and his representative contend he is entitled to service connection for cerebrovascular disease, balance issues, and heart disease as secondary to his service-connected diabetes mellitus, type II. While there are no confirmed diagnoses in the record for these claimed disabilities, the Board notes that the Veteran’s treatment records have not been updated since November 2016. Therefore, updated treatment records should be secured on remand before a decision can be made regarding these claims. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding/updated VA treatment records that are not already associated with the claims file that are relevant to the claims on appeal. 2. The RO should obtain, if possible, records of all private evaluations and treatment the Veteran has received for his disabilities. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. If any private records identified are not received pursuant to the RO's request, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 3. Schedule the Veteran an appropriate VA examination and obtain a medical opinion regarding the nature and etiology of the Veteran's visual impairment. The examiner should review the entire claims file, conduct all necessary tests and studies, and opine on whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's visual impairment was either incurred in the Veteran's service or caused or aggravated by his service-connected diabetes mellitus, type II. A complete rationale should be provided in support of the opinion. 4. Schedule the Veteran an appropriate VA examination and obtain a medical opinion regarding the nature and etiology of the Veteran's obstructive sleep apnea. The examiner should review the entire claims file, conduct all necessary tests and studies, and opine on whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's obstructive sleep apnea was either incurred in the Veteran's service or caused or aggravated by his service-connected diabetes mellitus, type II. A complete rationale should be provided in support of the opinion. 5. Schedule the Veteran an appropriate VA examination and obtain a medical opinion regarding the nature and etiology of the Veteran's bilateral ankle disabilities. The examiner should review the entire claims file, conduct all necessary tests and studies, and opine on whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's bilateral ankle disabilities were either incurred in the Veteran's service or caused or aggravated by his service-connected diabetes mellitus, type II. A complete rationale should be provided in support of the opinion. 6. Schedule the Veteran an appropriate VA examination and obtain a medical opinion regarding the nature and etiology of the Veteran's bilateral restless leg syndrome. The examiner should review the entire claims file, conduct all necessary tests and studies, and opine on whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's bilateral restless leg syndrome was either incurred in the Veteran's service or caused or aggravated by his service-connected diabetes mellitus, type II. A complete rationale should be provided in support of the opinion. 7. Schedule the Veteran an appropriate VA examination and obtain a medical opinion regarding the nature and etiology of the Veteran's bilateral peripheral neuropathy of the lower extremities. The examiner should review the entire claims file, conduct all necessary tests and studies, and opine on whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's bilateral peripheral neuropathy of the lower extremities was either incurred in the Veteran's service or caused or aggravated by his service-connected diabetes mellitus, type II. A complete rationale should be provided in support of the opinion. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.