Citation Nr: 21015359 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-53 505 DATE: March 17, 2021 ORDER Entitlement to service connection for type 2 diabetes mellitus is granted. REMANDED Entitlement to service connection for a heart disability, to include diagnoses of congestive heart failure and atrial fibrillation, is remanded. Entitlement to service connection for progressive supra-nuclear palsy is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran served in the U.S. Air Force at U-Tapao Royal Thai Air Force Base during the Vietnam Era as a jet engine mechanic and crew chief, and had duties near the flight line. 2. The Veteran’s type 2 diabetes mellitus is etiologically related to service. CONCLUSION OF LAW Type 2 diabetes mellitus is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1962 to August 1965 and in the U.S. Air Force from August 1967 to August 1984. He died on August [REDACTED], 2019. The appellant is his surviving spouse, and has been recognized as a substituted claimant in an August 2020 administrative decision. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). VA has also recognized a special consideration of herbicide exposure on a factual basis that should be extended to Veterans whose duties placed them on or near the perimeters of Royal Thai Air Force bases during the Vietnam Era, from February 28, 1961, to May 7, 1975. If the veteran is presumed to have been exposed to herbicide agents, the veteran is entitled to a presumption of service connection for certain disorders, to include type 2 diabetes mellitus. See 38 C.F.R. § 3.309(e). Nevertheless, the availability of presumptive service connection for a disability based on exposure to herbicides pursuant to 38 C.F.R. § 3.307(a)(6) does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes 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 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); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The appellant contends that service connection for type 2 diabetes mellitus is warranted. The appellant asserts that type 2 diabetes mellitus was caused by exposure to designated herbicide exposure during active service. In this regard, service personnel records indicate that during the relevant period from 1971 to 1972, the Veteran was assigned to the 307 Field Maintenance Squadron, which was based at U-Tapao Royal Thai Air Force Base (U-Tapao RTAFB). The Veteran’s military occupational specialty (MOS) during this period was listed as jet engine mechanic, but military personnel records indicate that the Veteran also served as crew chief. There are two issues to determine if service connection is warranted in this claim on a presumptive basis: whether the Veteran was directly exposed to designated herbicide agents and whether the Veteran had an enumerated disease associated with designated herbicide exposure. The Board finds that the Veteran’s duties as a member of the 307 Field Maintenance Squadron would have brought him to the end of the flight line on a routine basis, regularly exposing him to the perimeter of the base, where the Department of Defense and VA have conceded use of tactical herbicides at Royal Thai Air Force bases. Exposure to herbicides is established. Private post-service treatment records dated June 2010 document a diagnosis of type 2 diabetes mellitus, a listed presumptive herbicide condition under 38 C.F.R. § 3.309(e). The preponderance of the evidence favors the claim and service connection for type 2 diabetes mellitus is warranted. The grant of service connection for type 2 diabetes mellitus due to conceded tactical herbicide exposure at U-Tapao RTAFB renders moot the appellant’s other theories of service connection. REASONS FOR REMAND Further development is required in connection with the claims of service connection for congestive heart failure and atrial fibrillation, progressive supra-nuclear palsy, hypertension, and sleep apnea. The duty to assist requires provision of an examination when there is a current disability, an injury in service, and a possible nexus between them. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant contends that the Veteran’s congestive heart failure and atrial fibrillation, progressive supra-nuclear palsy, hypertension, and sleep apnea are due to his in-service exposure to Agent Orange. As found herein, exposure to herbicides is established. Post-service treatment records document diagnoses of congestive heart failure, atrial fibrillation, progressive supra-nuclear palsy, Bell’s palsy, hypertension, and sleep apnea. The appellant has presented sufficient evidence to raise the possibility of a nexus regarding the claims of service connection for a heart disability, progressive supra-nuclear palsy, hypertension, and sleep apnea. Therefore, VA medical opinions for the claimed heart disability, progressive supra-nuclear palsy, hypertension, and sleep apnea are warranted. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified VA clinician to determine the nature and etiology of the claimed heart disability. The claims folder must be reviewed in conjunction with the opinion. The Board notes that the record contains diagnoses of congestive heart failure and atrial fibrillation. For each disability, the examiner must opine as to whether such was at least as likely as not caused or aggravated by service, to include exposure to herbicides. The examiner must also opine as to whether the Veteran had a diagnosis of ischemic heart disease, and if so, whether such caused the Veteran’s congestive heart failure and or atrial fibrillation. A full and complete rationale, to include authorities, is required for all opinions expressed. 2. Obtain a medical opinion from a qualified VA clinician to determine the nature and etiology of the claimed progressive supra-nuclear palsy. The claims folder must be reviewed in conjunction with the opinion. The examiner must opine as to whether the diagnosed progressive supra-nuclear palsy was at least as likely as not caused or aggravated by service, to include exposure to herbicides. A full and complete rationale, to include authorities, is required for all opinions expressed. 3. Obtain a medical opinion from a qualified VA clinician to determine the nature and etiology of the claimed hypertension. The claims folder must be reviewed in conjunction with the opinion. The examiner must opine as to whether the diagnosed hypertension was at least as likely as not caused or aggravated by service, to include exposure to herbicides, or a service-connected disability, to include diabetes mellitus, type II. The reviewer must also discuss recent National Academy of Science (NAS) finding elevating the possibility of a nexus between hypertension and herbicide exposure. A full and complete rationale, to include authorities, is required for all opinions expressed. 4. Obtain a medical opinion from a qualified VA clinician to determine the nature and etiology of the claimed sleep apnea. The claims folder must be reviewed in conjunction with the opinion. The examiner must opine as to whether the diagnosed sleep apnea was at least as likely as not caused or aggravated by service, to include exposure to herbicides. A full and complete rationale, to include authorities, is required for all opinions expressed. 5. Then, readjudicate the claims on appeal. If the benefits sought remain denied, issue a supplemental statement of the case and then return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.