Citation Nr: 21021633 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-45 842 DATE: April 13, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is granted. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus, type II, is granted. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus, type II, is granted. REMANDED Entitlement to service connection for a kidney disability, to include as due to herbicide agent exposure, and/or as secondary to service-connected diabetes mellitus, type II, is remanded. Entitlement to service connection for a prostate disability, to include as due to herbicide agent exposure, and/or as secondary to service-connected diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus, type II, is related to his active service, including herbicide agent exposure. 2. The Veteran’s right lower extremity peripheral neuropathy is proximately due to his service-connected diabetes mellitus, type II. 3. The Veteran’s left lower extremity peripheral neuropathy is proximately due to his service-connected diabetes mellitus, type II. 4. The Veteran’s right upper extremity peripheral neuropathy is proximately due to his service-connected diabetes mellitus, type II. 5. The Veteran’s left upper extremity peripheral neuropathy is proximately due to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154, 5107; 5121, 5121A, 38 C.F.R. §§ 3.303 , 3.307, 3.309, 3.1000. 2. The criteria for service connection for right lower extremity peripheral neuropathy as secondary to diabetes mellitus, type II are met. 38 U.S.C. §§ 1110, 5107, 5121, 5121A; 38 C.F.R. §§ 3.102, 3.310, 3.1000. 3. The criteria for service connection for left lower extremity peripheral neuropathy as secondary to diabetes mellitus, type II are met. 38 U.S.C. §§ 1110, 5107, 5121, 5121A; 38 C.F.R. §§ 3.102, 3.310, 3.1000. 4. The criteria for service connection for right upper extremity peripheral neuropathy as secondary to diabetes mellitus, type II are met. 38 U.S.C. §§ 1110, 5107, 5121, 5121A; 38 C.F.R. §§ 3.102, 3.310, 3.1000. 5. The criteria for service connection for left upper extremity peripheral neuropathy as secondary to diabetes mellitus, type II are met. 38 U.S.C. §§ 1110, 5107, 5121, 5121A; 38 C.F.R. §§ 3.102, 3.310, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1967. The Veteran died in August 2016. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision and a September 2013 rating decision. The Appellant was accepted as the substitute claimant by the Agency of Original Jurisdiction in January 2017. As such, the Appellant is entitled to any benefits due and unpaid to the Veteran at the time of his death under existing ratings or decisions or based on evidence in the file at the date of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. In January 2020, the Appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is granted. Prior to his death, the Veteran indicated that his diabetes mellitus, type II, was related to his active service. Specifically, the Veteran maintained that he sustained herbicide agent exposure while stationed at Camp Friendship, which was adjacent to Korat Royal Thai Air Force Base in Thailand. For the reasons discussed below, service connection for diabetes mellitus, type II is warranted. Service connection is established when the following elements are satisfied: (1) the existence of 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 disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2012); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). The presumption is rebuttable. 38 C.F.R. § 3.307(d). Also, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The diseases associated with herbicide exposure for purposes of the presumption include diabetes mellitus, type II. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). If the veteran was exposed to an herbicide agent (to include Agent Orange) during active service, diabetes mellitus, type II shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. VA has acknowledged that herbicides were used on certain base perimeters in Thailand during the Vietnam era, although the herbicides were of the commercial variant. Nonetheless, special consideration of herbicide exposure on a facts-found or direct basis can be extended to those veterans whose duties placed them on or near the perimeters of certain Thailand military bases, including the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. This allows for presumptive service connection of the diseases associated with herbicide agent exposure. Further, if a veteran served on one of the above air bases during the Vietnam era 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 can be acknowledged on a facts-found or direct basis. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s post-service treatment records indicate that he had a current diagnosis of diabetes mellitus, type II. The Veteran believed that while stationed at Camp Friendship, adjacent to Korat Royal Thai Air Force Base, his duties as a construction machine operator brought him to the base perimeter and contributed to his herbicide agent exposure. See DD Form 214, Certificate of Release or Discharge from Active Duty; see also November 2013 Notice of Disagreement. Specifically, the Veteran advised that while in Thailand, he constructed airports and witnessed airplanes spraying herbicide agents. See November 2013 Notice of Disagreement. The Appellant stated that the Veteran told her that he was stationed at Camp Friendship, adjacent to Korat Royal Thai Air Force Base, performed perimeter roadwork, and was sprayed with herbicide agents. See January 2020 Hearing Transcript. The Veteran’s claims folder contains a December 2011 Memorandum for Herbicide Exposure that provides that information required to corroborate exposure to herbicides in service is insufficient to send to the United States Army and Joint Services Records Research Center (JSRCC) and/or insufficient to allow for meaningful research of records. The memorandum states that evidence revealed that the Veteran served at one of the Royal Thai Air Force Bases, but failed to establish that his duties regularly involved him working along the perimeter of the base. As mentioned above, the Veteran’s and the Appellant’s statements indicate that he had contact with the base perimeter while stationed adjacent to Korat Royal Thai Air Force Base. The Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additional evidence supports the Veteran’s statements that he served near the perimeter of Korat Royal Thai Air Force Base. The Veteran’s service personnel records demonstrate that he was stationed in Thailand from April 1966 to April 1967 and was attached to the 561st Engineer Company and 44th Engineer Company. Evidence regarding the 561st Engineer Company Unit History provides that during this time, the Unit was performing construction on the Freedom Highway and completed a phased move to Camp Friendship. Accordingly, the Board finds the Veteran’s account of his service on or near the perimeter of the Korat Royal Thai Air Force Base to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, the Board finds no basis in the record to question the Veteran’s credibility regarding these statements. In sum, the Veteran’s statements, taken in conjunction with the information regarding herbicide use in Thailand, support a finding that the Veteran was exposed to herbicides during his active service while stationed adjacent to Korat Royal Thai Air Force Base. The Veteran’s post-service treatment records reflect a diagnosis of diabetes mellitus, type II. Therefore, service connection for diabetes mellitus, type II for accrued and substitution purposes is warranted on a presumptive basis. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000. 2. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus, type II, is granted. 3. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus, type II, is granted. 4. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus, type II, is granted. 5. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus, type II, is granted. The Veteran’s claims folder shows that his bilateral upper and lower extremity peripheral neuropathy was related to his service-connected diabetes mellitus, type II. For the reasons discussed below, the Board finds that service connection is warranted. Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the of the nonservice-connected disease, will be service-connected. § 3.310(b). Secondary service connection under § 3.310 entails “any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition.” Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, in order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Prior to his death, the Veteran had a diagnosis of bilateral upper and lower extremity neuropathy. The Veteran’s post-service treatment records demonstrate extremity weakness and numbness. Multiple private treatment records indicate that the Veteran’s sensorimotor polyneuropathy was secondary to his diabetes. Additionally, a May 2001 private treatment record states that the Veteran’s diabetes contributes to his poly-neuropathy. A February 2012 private medical opinion states that the Veteran has neurological problems and that it is probable that his diabetes significantly contributes to these problems. The Veteran’s VA treatment records show that he was diagnosed with diabetic neuropathy and also state that he has diabetes mellitus, type II with neuropathy. Based on the above medical evidence, the criteria for secondary service connection for bilateral upper and lower extremity peripheral neuropathy have been met, as these disabilities have been shown to be proximately due to his service-connected diabetes mellitus, type II. See 38 C.F.R. § 3.310(a). In sum, the preponderance of the evidence weighs in favor of service connection for bilateral upper and lower extremity peripheral neuropathy. In the absence of any probative evidence to the contrary, entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy as secondary to the Veteran’s service-connected diabetes mellitus, type II, is granted. See 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.310, 3.1000.   REASONS FOR REMAND 6. Entitlement to service connection for a kidney disability, to include as due to herbicide agent exposure, and/or as secondary to service-connected diabetes mellitus, type II, is remanded. 7. Entitlement to service connection for a prostate disability, to include as due to herbicide agent exposure, and/or as secondary to service-connected diabetes mellitus, type II, is remanded. As noted above, the Board determined that the Veteran sustained herbicide agent exposure during his active service while stationed adjacent to Korat Royal Thai Air Force Base. VA has established a presumption of service connection for certain diseases found to be associated with herbicide exposure. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). However, the Veteran’s post-service treatment records do not demonstrate that he was diagnosed with a kidney disability or prostate disability that qualifies for the presumption of service connection based on herbicide agent exposure under 38 C.F.R. § 3.309(e). Accordingly, service connection on a presumptive basis under § 3.309(e) cannot be established for the Veteran’s disabilities. Although presumptive service connection based on herbicide agent exposure is not available for the claims for service connection for a kidney disability and prostate disability, service connection may still be established with proof of direct causation or secondary. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the “availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange”); cf. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the claims folder should be forwarded to an appropriate examiner for a medical opinion regarding whether there was a relationship between the Veteran’s kidney disability and his prostate disability and his in-service exposure to herbicides and his service-connected diabetes mellitus, type II. See Combee, 34 F.3d at 1042. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s kidney disability. The examiner must review the claims file. The examiner must: (a.) Identify all kidney disabilities found to be present prior to the Veteran’s death. (b.) Opine whether any identified kidney disability was at least as likely as not (50 percent probability or greater) related to in-service exposure to herbicide agents. The examiner is advised that a negative opinion cannot be based solely on the fact that an identified kidney disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. (c.) Opine whether any identified kidney disability was at least as likely as not (50 percent probability or greater) caused by his service-connected diabetes mellitus, type II. (d.) Opine whether any identified kidney disability was at least as likely as not (50 percent probability or greater) aggravated by his service-connected diabetes mellitus, type II. NOTE: The examiner is advised that a “permanent worsening” is not required to establish aggravation. Aggravation may include temporary worsening, or flare-ups, of a disability. A complete rationale must be provided for all opinions and conclusions reached. 2. Obtain a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s prostate disability. The examiner must review the claims file. The examiner must: (a.) Identify all prostate disabilities found to be present prior to the Veteran’s death. (b.) Opine whether any identified prostate disability was at least as likely as not (50 percent probability or greater) related to in-service exposure to herbicide agents. The examiner is advised that a negative opinion cannot be based solely on the fact that an identified kidney disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. (c.) Opine whether any identified prostate disability was at least as likely as not (50 percent probability or greater) caused by his service-connected diabetes mellitus, type II. (d.) Opine whether any identified prostate disability was at least as likely as not (50 percent probability or greater) aggravated by his service-connected diabetes mellitus, type II. NOTE: The examiner is advised that a “permanent worsening” is not required to establish aggravation. Aggravation may include temporary worsening, or flare-ups, of a disability. A complete rationale must be provided for all opinions and conclusions reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.