Citation Nr: 21015968 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-45 207 DATE: March 18, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is granted. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is granted. Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for bilateral lower extremity neuropathy, to include as due to herbicide exposure and/or service-connected diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. The Veteran is presumed to be exposed to herbicide agents along the demilitarized zone (DMZ) in South Korea during service. 2. The Veteran has a diagnosis of diabetes mellitus, type II. 3. The Veteran’s hypertension is at least as likely as not related to his military service, to include exposure to herbicides while serving in along the DMZ in South Korea. 4. The Veteran’s PTSD is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, have been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for hypertension, to include as due to herbicide exposure, have been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have been met. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from October 1966 to April 1969. In March 2019, the Board remanded the above claims for additional development. These issues have since returned to the Board for adjudication. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Regarding service connection due to Agent Orange exposure, VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. Specifically, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, 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)(iv). 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is granted. The Veteran contends that he has diabetes that is due to his service in South Korea, on the DMZ. Specifically, the Veteran reported that he was exposed to herbicides while serving in the DMZ area in 1968. See June 2013 Notice of Disagreement (NOD). In evaluating the Veteran’s claim for service connection on a presumptive basis under 38 C.F.R. § 3.309(e), the Board concedes a current diagnosis as the record is clear that the Veteran has a diagnosis for diabetes mellitus, type II. See, e.g., January 2010 VA internal medicine note. Diabetes mellitus, type II is also a disease enumerated in 38 C.F.R. § 3.309(e) for presumptive service connection due to herbicide exposure. Thus, at issue is whether the Veteran was exposed to herbicides during service. Under section 3.307(a)(6)(iv), a Veteran who served between April 1, 1968, and August 31, 1971, in a unit, that as determined by the Department of Defense, operated in or near the Korean DMZ, in an area where herbicides were known to be applied, shall be presumed to be exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iv). The Veteran’s military records confirm the Veteran’s lay statements that he served in Pusan, South Korea and along the DMZ in and around April 1968 and April 1969 as an equipment specialist. As the Veteran’s lay statements are supported by his military records, the Board finds the Veteran’s lay statements regarding serving along the DMZ credible as well as probative. In this case, the veteran has established that he was stationed in an area where herbicide agents were used. Moreover, the evidence clearly reflects that herbicide agents were used during the relevant time period when the veteran was stationed at that location. The official evidence also shows that the herbicides used in South Korea were also used in the Republic of Vietnam and are among the herbicide agents specified in the requirements of 38 C.F.R. § 3.307(a)(6). The evidence further reflects that herbicides were used in the area near the South Korean side of the DMZ, where the veteran was stationed, during the relevant period, that is, while the veteran was there. In this particular case, it does not appear that there are any additional official records available which may assist in determining whether the veteran was actually individually exposed to herbicides in service, or, if so, what his level of exposure might have been. However, given the official confirmation of amount of herbicide used, the locations covered with defoliant, and the evidence as to where the veteran was stationed, the Board believes that the positive and the negative evidence as to whether the veteran actually incurred exposure to a herbicide in this particular case is at least in equipoise. Where the evidence that the veteran was exposed to herbicide is in equipoise, reasonable doubt as to exposure must be resolved in the veteran’s favor. 38 U.S.C.A. § 5107(b). Having resolved doubt as to herbicide exposure in the Veteran’s favor, the presumption that the Veteran’s exposure was etiologically related to post-service development of diabetes mellitus type II is applicable. With application of the presumption, the Board finds that the Veteran incurred diabetes mellitus type II in service or as a result of service. Thus, service connection for diabetes mellitus, type II on a presumptive basis is granted. 2. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is granted. The Veteran contends that he has hypertension that is due to his service in South Korea, on the DMZ. Alternatively, the Veteran contends that his hypertension is related to his now service-connected diabetes. The Board notes that the Veteran has been diagnosed with hypertension. See, e.g., January 2010 VA internal medicine note. Thus, he has a current disability. Additionally, on the issue of in-service incurrence, as noted above, the Veteran contends that his hypertension is related to his military based on herbicide exposure therein. As noted above, the Board finds that the Veteran is presumed to have been exposed to herbicide agents coincident to his service in South Korea along the DMZ. Thus, exposure to herbicides is presumed. With regard to a link between the Veteran’s herbicide exposure and hypertension, this can either be established by presumption or with direct evidence of a link. For presumptive purposes, VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The Board notes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include hypertension. Thus, service connection cannot be awarded on a presumptive basis. However, the Veteran’s claim may still be established on a direct basis with evidence of a nexus between his exposure to herbicides in service and his currently diagnosed hypertension. As to evidence of a direct link, on November 15, 2018, the National Academies of Sciences, Engineering, and Medicine moved hypertension to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category,” indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicides, including Agent Orange. See Hypertension Upgraded in Latest Biennial Review of Research on Health Problems in Veterans That May Be Linked to Agent Orange Exposure During Vietnam War (Nov. 15, 2018), http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137 (last visited Dec. 12, 2019). Based on this finding, the Board finds that there is sufficient scientific evidence to etiologically link the Veteran’s hypertension to his presumed exposure to herbicides while serving in South Korea. As such, the Board has found that all elements of service connection for hypertension are met, and service connection is granted. 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted. The Veteran contends that he has PTSD that is related to his military service. Specifically, he reported in May 2013 that he was stationed on a barge during his service in the Republic of Korea and discovered two baby boys that had experienced head trauma. He reported that he pulled the bodies out of the water and notified the military police. The Board concludes that the Veteran has a current disability that is related to his military service in South Korea. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The December 2019 VA examination shows the Veteran has a current diagnosis of PTSD. There is also evidence of an in-service incurrence, as the Veteran was seen for complaints of nervousness. See August 1968 service treatment records (STRs). As such, the first and second elements of service connection, a diagnosis and in-service incurrence, respectively, have been met. Thus, the question becomes whether the current disability is related to service. The Board notes that the Veteran’s identified stressors have not been verified. Thus, they cannot serve as the basis for a nexus. However, the evidence in favor of the claim includes a probative nexus opinion by the December 2019 VA examiner that links his PTSD directly to his symptoms in active service. While the December 2019 VA examiner did conclude that the Veteran’s PTSD was at least as likely as not (50 percent or greater probability) incurred in or caused by his claimed in-service event, specifically his witnessing of dead babies in the water and other dead bodies of adults on the streets in Korea, a basis that cannot support the claim for service connection, the examiner also reasoned that a relationship exists between his PTSD and his psychiatric symptoms in service. The examiner noted that there are several STRs that indicated symptoms of PTSD as well as depressive and anxiety symptoms. The examiner also noted that his records show a lengthy history of psychiatric medications related to PTSD symptoms. The examiner’s opinion as to the link between these symptoms and his current diagnosis is probative, because it is based on an accurate medical history, considers the Veteran’s lay statements and STRs, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given the December 2019 VA examiner’s probative opinion, a nexus has been established. Upon review of the record, the Board finds that the preponderance of the evidence supports the Veteran’s service connection claim for an acquired psychiatric disorder, to include PTSD. Accordingly, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral lower extremity neuropathy, to include as due to herbicide exposure and/or service-connected diabetes mellitus, type II, is remanded. The Veteran contends that he has bilateral lower extremity neuropathy that is related to his now service-connected diabetes. The Veteran’s VA treatment records indicate treatment of diabetic neuropathy. See, e.g., October 2020 VA treatment plan. At the outset, the Board notes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list includes early-onset peripheral neuropathy. As the medical evidence of record does not show that the Veteran’s peripheral neuropathy manifested within one year of being exposed to herbicides in South Korea, the Veteran’s peripheral neuropathy cannot be classified as early-onset peripheral neuropathy. Therefore, service connection for bilateral lower extremity neuropathy cannot be granted on a presumptive basis. As to whether the Veteran’s bilateral lower extremity neuropathy service connection claim may otherwise be granted, while the Board regrets the additional delay, the Veteran has not yet undergone a VA examination for his bilateral lower extremity neuropathy. Therefore, a remand is necessary to obtain a VA examination to determine the nature and etiology of the Veteran’s bilateral lower extremity neuropathy. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral lower extremity neuropathy. 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 bilateral lower extremity neuropathy at least as likely as not related to service, to include in-service exposure to herbicide agents. The examiner is advised that a negative opinion cannot be based solely on the fact that the bilateral lower extremity neuropathy is not presumptively associated with exposure to herbicide agents. (b) Is the Veteran’s bilateral lower extremity neuropathy at least as likely as not proximately due to service-connected diabetes mellitus, type II. Is the bilateral lower extremity neuropathy at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected diabetes mellitus, type II. The examiner must provide a rationale to support the opinion(s). 2. The agency of original jurisdiction should ensure that compliance with the remand instructions has occurred. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.