Citation Nr: 21021527 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 19-14 879 DATE: April 13, 2021 ORDER Entitlement to service connection for diabetes mellitus as due to herbicide exposure is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the upper extremities as due to diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the lower extremities as due to diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction as due to diabetes mellitus is remanded. FINDING OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran set foot in the Republic of Vietnam during the requisite period and is therefore presumed to have been exposed to herbicides during service. 2. Diabetes mellitus is a disease VA recognizes as associated with herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Air Force from April 1962 to April 1966. This matter is on appeal from a January 2018 rating decision. The Veteran was afforded a February 2021 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). With respect to herbicide exposure, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 and has a disease listed at 38 C.F.R. § 3.309 (e) shall be 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). Diseases associated with herbicide exposure for purposes of the presumption include leukemia, ischemic heart disease, diabetes mellitus and prostate cancer. 38 C.F.R. § 3.309 (e). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third elements for certain chronic disabilities such as diabetes mellitus is through a demonstration of continuity of symptomatology. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b), Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Diabetes mellitus The Veteran contends that his diabetes mellitus is related to his exposure to herbicides during his active duty service. Review of the medical treatment record shows a diagnosis for diabetes mellitus and treatment for the condition. As such, the Board finds the Veteran with a current disability. Review of the Veteran’s DD 214 form shows the Veteran’s military occupational specialty (MOS) as an aircraft mechanic. Review of the Veteran’s military record shows in an July 1964 order to the 62nd Troop Carrier Wing stationed at McChord base, the Veteran was one of several service members designated as “non-crew members” and required to participate “frequently and regularly in serial flight” as scanners from July to September 1964. In January 1965 the Veteran was granted top secret security clearance. In a January 1966 performance evaluation, the Veteran’s duties were described as an assistance crew chief on C-124 aircraft and responsible for performing aircraft maintenance “at home and en-route stations” as well as pre- and post-flight inspection. The Veteran was also noted to have additional duties in performing inflight duties as a scanner and serve as a security guard on “classified missions.” In a December 2016 email correspondence with the Air Force Historical Research Agency, the Veteran requested information on the 62nd Air Transport Wing and a statement on whether it was “likely, highly likely, or not likely at all that [the Veteran] landed in Vietnam”. The responding archivist provided documentation from the 62nd Air Transport Wing to indicate that the group made flights to Vietnam but also noted that they were unable to state whether a particular individual had traveled to Vietnam as part of those flights. In a followup response, the archivist noted that the Veteran had orders “sending the Veteran to the Pacific area…an official transcription of the official unit history noting that once the unit deployed, they did conduct flights into Vietnam.” The archivist opined: “While it is plausible that the crew chief flew with the aircraft, and may indeed even be probable, it is not my place to make any declarative statement.” The Veteran submitted a document which listed the number of flights performed by the 62nd Air Transport Wing from January to December 1965. The document indicated that C-124 aircraft were used and made flights from McChord base to Vietnam and back to include “X-ray missions.” In May 2017 the Veteran stated that he participated in missions flying in and out of Vietnam. In an August 2017 request for information from the Air Force Historical Research Agency, VA requested verification on whether the Veteran’s assigned group flew into Vietnam from November 1962 to July 1963 to drop off troops and equipment. In December 2017 a DPRIS response found they were unable to document the Veteran’s exposure to herbicide or was aboard aircraft that transported herbicides or was used for unit personnel dismounting into Vietnam during the requested period. In a May 2019 form 9 statement, the Veteran noted that “although my visits to Vietnam are not documented in my records”, the Veteran stated that his performance reports show him as an assistant crew chief on C-124 aircraft; along with the archivist report that his squadron flew sorties in an out of Vietnam during his service, the Veteran asserted that he flew in and out of Vietnam more than 20 times and his testimony should be considered credible. In an October 2019 Veteran Service Officer (VSO) statement, the officer stated the Veteran was a flying crew chief on C-124 aircraft during the Vietnam war and his duties were to fix any maintenance issues with the aircraft, add oil to the engines, and assist with refueling. The VSO stated that the C-124 aircraft was one of the largest cargo planes in use at the time and the Veteran would had needed to deplane in order to perform his duties. The VSO notes that the C-124 aircraft’s role was to fly cargo needed by warfighters from the United States to Vietnam. At the Veteran’s February 2021 hearing, the Veteran’s representative testified that the Veteran has stated that he was a flight mechanic on C-124 planes hauling bombs into Vietnam and transporting bodies of dead service-members back to the United States. The representative stated that the Veteran reported that while the plane was dropping off cargo, the Veteran was required to deplane in order to perform his mechanic duties to ensure the planes were flight-worthy and able to make the return flight. The Veteran testified that he would fly from the United States into Vietnam, unload weapons and load the bodies to bring back. The Veteran stated that once the body bags were placed on the aircraft, they were not taken off the plane until they returned to the United States, and “so, eight or nine days there we were, we had these body bags with Agent Orange on the outside of it…and we didn’t know what it was.” The Veteran testified that while in Vietnam he got off the plane to assist the load master with unloading the bombs from the plane and loading the bodies onto the plane for two to four hours each trip. Despite the fact that there is no clear evidence of herbicide exposure due to his Vietnam service shown in the record, the Veteran’s statements of his duties involving working with aircraft performing Vietnam missions and deplaning to perform maintenance on the aircraft before and after flights are facts consistent with the circumstances and conditions of his service and duties as an aircraft mechanic during the Vietnam era. Because the use of herbicide agents at various Air Force bases during the Vietnam era is recognized, the Board finds the appellant’s account of the Veteran’s duties and herbicide exposure during service to be credible. The Board finds the evidence of record does not contradict the Veteran’s statements regarding his duties and contentions of herbicide exposure. Considering the competent and credible evidence of record, the Board finds the evidence is at least in equipoise. As such, the benefit of the doubt is resolved in the Veteran’s favor and finds that the Veteran was present in Vietnam and exposed to herbicides during his active duty service. Therefore, the Veteran’s diabetes mellitus are presumed to be associated with his in-service herbicide exposure. REASONS FOR REMAND The Board finds that remand for additional development is warranted. The Veteran has asserted that his bilateral peripheral neuropathy in his upper and lower extremities as well as erectile dysfunction are due to his diabetes mellitus. As addressed above, the Board has granted service connection for diabetes mellitus. At the Veteran’s February 2021 hearing, the Veteran testified that doctors had told him that his neuropathy was due to diabetes. Review of the medical treatment record shows the Veteran’s active problems as “diabetic peripheral neuropathy associated with diabetes mellitus.” However, it is unclear where the neuropathy has been diagnosed in the upper or lower extremities, as the medical treatment record also shows findings or impressions of ulnar neuropathy affecting the Veteran’s right hand and normal sensations in the Veteran’s feet, and no statement or findings have been made to explain the finding of the conditions and symptoms in relation to diabetes. Review of the medical treatment record also shows an impression for erectile dysfunction and treatment for the condition but no statement on the etiology of the condition. The Board notes that review of the medical treatment record shows no opinion regarding the etiology of the claimed issues in regard to the Veteran’s diabetes mellitus. Review of the claims record also does not show that any VA examination have been held regarding the nature and etiology of the Veteran’s claimed issues. As such, the Board finds that remand for additional development and examination is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. After all outstanding records have been associated with the claims file , schedule the Veteran for a VA examination to determine the nature and etiology of his claimed neuropathy of the upper and lower extremities, and erectile dysfunction disabilities. The record and a copy of this remand must be made available to the examiner. The VA examiner should opine as to the following: (a.) Identify the Veteran’s current diagnoses to include, if warranted, neuropathy of the upper and lower extremity and erectile dysfunction. For each diagnosed disorder, the examiner is asked to answer: (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s neuropathy of the upper extremity disability is due to his service-connected diabetes mellitus. (c.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s neuropathy of the lower extremity disability is due to his service-connected diabetes mellitus. (d.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s erectile dysfunction disability is due to his service-connected diabetes mellitus. (e.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s neuropathy of the upper extremity disability is aggravated by his service-connected diabetes mellitus. (f.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s neuropathy of the lower extremity disability is aggravated by his service-connected diabetes mellitus. (g.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s erectile dysfunction disability is aggravated by his service-connected diabetes mellitus. In addressing any of the above, the VA examiner should note that “Aggravation” is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of all diagnosed disabilities prior to aggravation. If a baseline cannot be established, the examiner should explain why. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.