Citation Nr: 21021529 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-14 610 DATE: April 13, 2021 ORDER Entitlement to service connection for type 2 diabetes mellitus due to herbicide exposure is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy as secondary to type 2 diabetes mellitus is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy as secondary to type 2 diabetes mellitus is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy as secondary to type 2 diabetes mellitus is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy as secondary to type 2 diabetes mellitus is remanded. Entitlement to service connection for hypertension as secondary to type 2 diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction as secondary to type 2 diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran has type 2 diabetes mellitus. 2. It is as likely as not he set foot on the landmass of Vietnam, so it must be presumed that he was exposed to herbicides (Agent Orange) while there. 3. Moreover, absent any affirmative indication to the contrary, his type 2 diabetes mellitus is presumptively associated with that exposure to herbicides (Agent Orange) while Vietnam. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for type 2 diabetes mellitus since presumptively incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 from July 1963 to November 1966. In January 2019, he testified in support of these claims during a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. In September 2019, the Board of Veterans’ Appeals (Board/BVA) denied the Veteran’s claim of entitlement to service connection for PTSD. He appealed the Board’s denial of that claim to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). However, the Board instead temporarily postponed (“stayed”) adjudication of the several other claims he also had appealed to the Board – namely, for service connection for type 2 diabetes mellitus and for several other conditions alleged to be complications of, so secondary to, the type 2 diabetes mellitus – specifically, hypertension, bilateral (left and right) upper and lower extremity peripheral neuropathy, and erectile dysfunction. In January 2020, once that stay was lifted, the Board remanded the claim for service connection for type 2 diabetes mellitus back to the local Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) for further development and consideration. The Board also remanded the derivative claims for the several other conditions alleged to be complications of the type 2 diabetes mellitus – the hypertension, bilateral (left and right) upper and lower extremity peripheral neuropathy, and erectile dysfunction. The Court (CAVC) since has issued an Order in October 2020 granting a Joint Motion for Remand (JMR), vacating the Board’s decision denying the claim for service connection for PTSD, so this claim is again before the Board. All the remaining claims also are again before the Board concerning the type 2 diabetes mellitus and several complications since they continued to be denied on remand. In this decision the Board is granting the claim for service connection for type 2 diabetes mellitus but, instead, again remanding all remaining claims – both for the several complications of the diabetes and for PTSD. SERVICE CONNECTION 1. Entitlement to service connection for type 2 diabetes mellitus due to exposure to herbicides (including especially the dioxin in Agent Orange) The Veteran contends that he is entitled to service connection for type 2 diabetes mellitus because it was caused by his exposure to herbicides, including especially the dioxin in Agent Orange, during his service aboard the USS Bennington (CVS-20) off the coast of Vietnam. He also claims that he left that vessel and flew to Da Nang to repair damaged aircraft. For the reasons and bases that will be discussed, the Board finds the evidence of record supports his claim, so it now must be granted. Service connection may be granted on a direct basis for disability directly resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, service connection on this basis requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As for herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War era (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii).   The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The list of diseases presumptively associated with exposure to certain herbicide agents includes type 2 diabetes mellitus (also known as adult-onset diabetes). 38 C.F.R. § 3.309(e). For purposes of applying the herbicide presumption, “service in Vietnam” includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). In an important precedent case, the Federal Circuit Court held that “service in the Republic of Vietnam” includes service on the landmass, inland waterways and in the territorial sea extending 12 nautical miles from the shores of that nation. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). As a result, the presumption of exposure to herbicide agents extends to Veterans who served within that territorial area, and such Veterans are entitled to presumptive service connection under 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground (landmass) or in the inland waters of Vietnam. Since the Veteran has the requisite diagnosis of type 2 diabetes mellitus, the dispositive issue thus is whether he also had qualifying service in Vietnam to, in turn, warrant presuming his type 2 diabetes mellitus is owing to that service. His DD Form 214 shows that he received the Republic of Vietnam Service Medal with Bronze Star and a National Defense Service Medal. However, while certainly commendable in their own right, these medals are insufficient in and of themselves to establish service in the Republic of Vietnam because they were given to servicemembers who did not serve inland or within the territorial waters of Vietnam. Haas v. Peake, 525 F.3d 1168, 1196 (Fed. Cir. 2008), rev’d in part by Procopio, 913 F.3d at 1380. In January 2020, because the record on appeal did not contain any information regarding whether the USS Bennington (CVS-20) had navigated within the required 12-nautical mile territorial sea off the coast of the Republic of Vietnam to, in turn, warrant presuming the Veteran was exposed to Agent Orange, the Board remanded this claim back to the RO (AOJ) to see whether this could be confirmed. In addition, the remand was to try and substantiate the Veteran’s contention that he was sent to Da Nang to service airplanes. To this end, this additional development would include obtaining any available deck logs or other service records that might tend to show servicemen leaving the ship for Da Nang during this period. Logbooks since obtained by VA and associated with the claims file for the USS Bennington (CVS-20) show that at no point while the Veteran was serving aboard the ship did it enter the territorial sea within 12 nautical miles of Vietnam, despite being very close at Yankee Station in the Gulf of Tonkin. See December 2020 Records Research Response; December 2020 Herbicide Exposure Verification Memorandum. That said, while the Naval History and Heritage Command (NHHC) does not maintain a command history for the aviation unit to which the Veteran was assigned (Air Anti-submarine Squadron 38 (VS-38)), an Aviation Historical Summary indicates that, while assigned to the USS Bennington (CVS-20) from late July to September 1965, the VS-38 helped furnish surface and subsurface surveillance during Yankee Team operations off Vietnam. Turning next to the lay evidence, the Veteran consistently has reported that, while working in Aviation Metal-Smith Hydraulics (AMH-3) as part of VS-38 aboard the USS Bennington (CVS-20), he was flown into Da Nang, Vietnam, on several occasions to repair “tail hooks” and other major hydraulic problems that prevented aircraft from returning safely to the carrier. See November 2015 Notice of Disagreement (NOD); February 2016 Statement. He reiterated this contention during his January 2019 videoconference hearing before this Board.   Additionally, he submitted a lay statement from a fellow serviceman, M.J., who confirmed that the Veteran had shared experiences of flying in and out of Da Nang. See also April 2016 C.E.H. Statement (remembers looking up Da Nang in the atlas to see how far away the Veteran was from home). The Board must consider lay evidence when determining whether there was service in Vietnam or exposure to herbicide agents. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (vacating the Board’s decision for failing to address certain pieces of evidence other than military personnel records regarding service in Vietnam). There is no requirement that service in Vietnam be specifically recorded in a Veteran’s service records to support a finding that he served in Vietnam. Id. The Veteran is competent to report that he flew into Da Nang to perform aircraft repairs, and the fact that the record shows consistent statements over the course of many years that he flew into Da Nang while aboard the USS Bennington (CVS-20) lends credibility to his contention of having done that. Therefore, this lay evidence is significantly probative evidence towards establishing that he stepped foot in Vietnam during the applicable period. Moreover, he has given credible hearing testimony under oath regarding remembering experiencing a bombing attack while repairing planes at the Da Nang base. The evidence the Veteran submitted regarding the question of whether he set foot in Vietnam is competent, credible and consistent with the circumstances of his service, therefore, ultimately probative to establish this as fact. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The Board therefore finds that it is at least as likely as not that he set foot in Da Nang, Vietnam. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in his favor, the Board finds that he served in Vietnam and, therefore, is entitled to the presumption that he was exposed to herbicides (Agent Orange) while there. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim and not only the ultimate disposition).   As the Veteran has a diagnosis of type 2 diabetes mellitus, it additionally must be presumed he has this disease because of his presumed exposure to Agent Orange in Vietnam, absent any affirmative indication otherwise. 38 C.F.R. §§ 3.307(a); 3.309(e). Thus, this claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. In the September 2019 decision, the Board denied this claim for service connection for PTSD. The Veteran appealed that decision to the higher Court (CAVC). In granting an October 2020 JMR, the CAVC vacated the Board’s decision denying this claim and remanded it back to the Board for further proceedings consistent with agreement in the JMR. Specifically, in granting the JMR, the CAVC agreed the Board had erred in failing to ensure VA had complied with its duty to assist under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) by obtaining service department records from the Joint Services Records Research Center (JSRRC) to attempt to verify the Veteran’s claimed stressors. Remand of this claim, therefore, is necessary to undertake this development. In directing its research, the RO should adhere to the holding of Gagne v. McDonald, 27 Vet. App. 397 (2015), wherein the Court held that VA’s duty to assist is not bound by the JSRRC’s 60-day limitation for stressor verification requests. The CAVC found that VA was obligated under its duty to assist to submit multiple 60-day requests to the JSRRC for records of a stressor event. Id. at 404. The CAVC determined that the fact that multiple record searches would burden JSRRC employees does not mean that those efforts would be “futile.”   Following development of the claimed stressors, the Veteran should be afforded a VA compensation examination for an opinion concerning whether he has PTSD because of any confirmed stressor during his service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA’s duty to assist includes providing a medical examination for an opinion when necessary to decide a claim). 2. Entitlement to service connection for right lower extremity peripheral neuropathy as secondary to type 2 diabetes mellitus is remanded. 3. Entitlement to service connection for right upper extremity peripheral neuropathy as secondary to type 2 diabetes mellitus is remanded. 4. Entitlement to service connection for left lower extremity peripheral neuropathy as secondary to type 2 diabetes mellitus is remanded. 5. Entitlement to service connection for left upper extremity peripheral neuropathy as secondary to type 2 diabetes mellitus is remanded. 6. Entitlement to service connection for hypertension as secondary to type 2 diabetes mellitus is remanded. 7. Entitlement to service connection for erectile dysfunction as secondary to type 2 diabetes mellitus is remanded. Like his type 2 diabetes mellitus, the Veteran contends that all these other claimed conditions also are the result of his exposure to Agent Orange in Vietnam, either directly owing to that service or because they are complications of, so secondary to, his type 2 diabetes mellitus that the Board has determined in this decision is a service-connected disability because of that service. These conditions, however, are not listed among those that are presumptively associated with exposure to Agent Orange. 38 C.F.R. § 3.309(e) (peripheral neuropathy, as an example, must be a specific type, “early onset”, and have manifested within a specified time after last exposure).   However, in this circumstance, when the conditions being claimed are not presumptively associated with exposure to Agent Orange, the Veteran nevertheless may establish entitlement to service connection with proof of actual causation, that is, with evidence directly linking the conditions to said exposure in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). Moreover, service connection is permissible on the additionally claimed secondary basis for disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). During his January 2019 hearing before this Board, the Veteran testified that he believes these conditions are secondary to his type 2 diabetes mellitus, again, meaning complications of his diabetes. A preliminary review of the record reveals that he has the requisite diagnoses of bilateral (left and right) upper and lower peripheral neuropathy, hypertension, and erectile dysfunction. Additionally, because of this decision, his type 2 diabetes mellitus is now considered to be a service-connected disability. Thus, he need only establish these other conditions being claimed are either directly due to his service or secondary to his diabetes. However, there is no medical opinion of record indicating whether these other conditions are related to (caused or aggravated by) his now service-connected type 2 diabetes mellitus. Consequently, this medical comment is needed before deciding the appeal of these other claims. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Board sees the Veteran submitted private Disability Benefits Questionnaires (DBQs) regarding his hypertension and erectile dysfunction. However, neither DBQ addresses the etiology of these claimed conditions, including insofar as whether they are related or attributable to his type 2 diabetes mellitus.   Thus, medical opinions are needed addressing whether the Veteran’s current peripheral neuropathy of his upper and lower extremities, hypertension, and/or erectile dysfunction are directly related to his service – from his presumed exposure to Agent Orange, or alternatively secondarily related to his service, specifically, caused or aggravated by his service-connected type 2 diabetes mellitus. Accordingly, these claims are REMANDED for the following action: 1. Attempt to verify the Veteran’s reported stressor of the 1963 death of a plane captain from a propeller during flight operations aboard the USS Bennington (CVS-20). See, e.g., April 2015 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD. If it is necessary to submit multiple requests spanning 60-day timeframes, then this must be done pursuant to the holding in Gagne v. McDonald, 27 Vet. App. 397 (2015). All steps taken to attempt to corroborate this stressor must be documented in the claims file and, if corroboration is not possible, then this should be documented in the claims file, as well, and the Veteran and his representative appropriately notified. 2. After the Veteran’s reported stressors have been developed to the extent possible, schedule him for a mental status examination to determine the nature and etiology of any PTSD or other mental illness. A copy of this decision and remand and all relevant medical and other records must be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran’s lay assertions, and undertake any indicated testing and evaluation. All testing indicated by the current DBQ format must be addressed. If the diagnosis of PTSD is confirmed, the examiner must explain how the diagnostic criteria are met and opine on whether it is at least as likely as not the PTSD is related to or the result of a verified in-service stressor. The examiner is asked to discuss all claimed in-service stressors. Similarly, if some other mental disorder diagnosis is determined warranted, either in addition to or in lieu of PTSD, indicate whether it at least as likely as not originated during the Veteran’s service, or manifested to a compensable degree within a year of his discharge from service (if a psychosis according to 38 C.F.R. § 3.384), or otherwise is related or attributable to his service. The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, regardless of whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority.   3. Also provide the Veteran a VA medical examination with an appropriate clinician for opinions concerning the etiology of his bilateral (left and right) upper and lower extremity peripheral neuropathy, hypertension, and erectile dysfunction, which he is partly alleging are complications of, so secondary to, his service-connected type 2 diabetes mellitus. A copy of this decision and remand and all relevant medical and other records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran’s lay assertions, and undertake any indicated studies. All testing indicated by the current DBQ format must be addressed. Based on the results of the Veteran’s physical examination, his statements regarding the development and treatment of these conditions, and review of the claims file, the examiner should answer the following questions: (a.) Is it at least as likely as not (a 50 percent probability or greater) the Veteran’s bilateral upper and lower extremity peripheral neuropathy, hypertension, and erectile dysfunction are directly related to his service – and, specifically, to his presumed exposure to Agent Orange in Vietnam, even accepting these conditions are not amongst those presumptively associated with said exposure. (b.) Alternatively, is it at least as likely as not (a 50 percent probability or greater) the Veteran’s bilateral upper and lower extremity peripheral neuropathy, hypertension, and/or erectile dysfunction are (i) caused OR (ii) aggravated by his service-connected type 2 diabetes mellitus? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the bilateral upper and lower extremity peripheral neuropathy, hypertension, and/or erectile dysfunction by the service-connected type 2 diabetes mellitus. The absence of evidence of treatment for bilateral upper and lower extremity peripheral neuropathy, hypertension, and/or erectile dysfunction in the Veteran’s service treatment records (STRs) or even post-service treatment records before initial diagnoses cannot be the sole reason for providing an unfavorable opinion, certainly not in the context of secondary service connection. However, it is permissible to consider this as one of several factors – provided there is explanation of why it is reasonable to expect documentation of specific complaints, etc., in the treatment records. The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority.   If the inability to provide an opinion without resorting to mere speculation is due to a deficiency in the record (additional facts are required), develop the claim to the extent necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.