Citation Nr: 21021644 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-16 053 DATE: April 13, 2021 ORDER Service connection for coronary artery disease is granted. Service connection for diabetes mellitus type II is granted. Service connection for erectile dysfunction, as secondary to coronary artery disease and/or diabetes mellitus type II, is granted. REMANDED Entitlement to service connection for hypertension, to include as a result of herbicide exposure or secondary to diabetes mellitus type II, is remanded. Entitlement to service connection for peripheral neuropathy, to include as a result of herbicide exposure or as secondary to diabetes mellitus type II, is remanded. FINDINGS OF FACT 1. The evidence of record supports finding that the Veteran served in Vietnam. 2. The Veteran has a current diagnosis of coronary artery disease. 3. The Veteran has a current diagnosis of diabetes mellitus type II. 4. The Veteran has a current diagnosis of erectile dysfunction, which is due to his coronary artery disease and/or diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for coronary artery disease as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for presumptive service connection for diabetes mellitus type II as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for secondary service connection for erectile dysfunction due to coronary artery disease and/or diabetes mellitus type II are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in Navy from April 1966 to January 1970. His decorations include a Vietnam Service Medal. Service Connection 1. Service connection for coronary artery disease. 2. Service connection for diabetes mellitus type II. 3. Service connection for erectile dysfunction. The Veteran contends that while serving aboard the USS Harry E. Hubbard, he did three tours in Vietnam. First, in 1967, he did a lot of shore bombardment harassment and interdiction with assistance with amphibious landings many times. He was also along the DMZ and Duong Tri on amphibius assaults and amphibious landings. To ensure shooting accuracy, he was only 6,000 to 8,000 yards off the Vietnam coast. Second, in 1968, he went on attack runs with watercrafts and he was put on a Swift Water Craft on December 20, 1968, to spend the day on the Delta. He went ashore at Qui Nhon for a short stay, and spent 26 days on the gun line in very close proximity of the Vietnam coast and Inlet River waterway. Third, in 1969, he was in water near Japan and Australia when an accident occurred where an aircraft carrier hit a submarine and he was on search and rescue looking for survivors. Part of the ship that was hit was towed to Subic Bay. See the March 2011 statement, December 2013 notice of disagreement. Any 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, 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)(iii). The United States Court of Appeals for the Federal Circuit (Court) recently held that 38 U.S.C. § 1116 unambiguously expressed Congress’ intent that those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of herbicide exposure. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). On June 25, 2019, the Blue Water Navy Vietnam Veterans Act of 2019 was signed into law, which extends the presumption of exposure to herbicide agents to those veterans who served within the 12 nautical miles of Vietnam. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019). This law took effect on January 1, 2020. In this case, the Board finds that the Veteran had service in Vietnam. Service personnel records confirm that he served aboard the USS Hubbard from February to September 1967, and from February to October 1968, which was in the waters of Vietnam from April 25, 1967, to May 14, 1967; May 26, 1967, to June 21, 1967; July 29, 1967, to August 24, 1967; August 28, 1968, to September 5, 1968; October 2, 1968, to October 30, 1968; November 14, 1968, to December 1, 1968, and December 17, 1968, to January 7, 1969. In addition, the Veteran’s DD 214 indicates that his military occupation was pipefitter and that there was shipboard fire fighting on November 28 and 29, 1966. He was awarded a Vietnam Service Medal and National Defense Service Medal. The Veteran also submitted a letter dated in June 1967 written by the commander of the USS Harry E. Hubbard, P.R. Bush, indicating that they were patrolling “well within enemy gun range about five miles off the coastline”; photographs printed in January 1969 showing himself aboard a swift boat, which he indicated was headed to Qui Nhon; and 27 statements from 22 veterans who served with the Veteran on the USS Harry E. Hubbard. The statements support various contentions of the Veteran, including being within five or less nautical miles from the coast of Vietnam, drinking contaminated water, and doing amphibious landings on shore. In light of the above, the Board finds that the evidence clearly indicates that the Veteran served offshore of the Republic of Vietnam as that term is defined in 38 U.S.C. § 1116A (a). The Board also finds the Veteran’s assertions regarding his “boots on the ground” in Vietnam to be credible, as they have been consistent and are confirmed by the circumstances of his service. As such, exposure to herbicide agents in service (including Agent Orange) is presumed. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including ischemic heart disease (which includes coronary artery disease) and diabetes mellitus type II, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran has current diagnoses of coronary artery disease and diabetes mellitus type II. He also has erectile dysfunction, which is due to the coronary artery disease and/or diabetes mellitus. In private treatment records dated in February 2011, the Veteran was noted to have coronary artery disease, status post bypass graft (CABG procedure) and diabetes. In an October 2019 male reproductive organ conditions disability benefits questionnaire, the Veteran was noted to have erectile dysfunction, the etiology of which was due to diabetes mellitus and/or coronary artery disease. Coronary artery disease and diabetes mellitus type II are explicitly listed as diseases for which presumptive service connection is granted due to in-service herbicide exposure under 38 C.F.R. § 3.309(e) and therefore service connection is warranted. In addition, the Veteran’s erectile dysfunction is noted to be due to his diabetes and/or heart disease, and as such, service connection is warranted. 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for peripheral neuropathy is remanded. The Veteran contends that his hypertension and peripheral neuropathy were caused by his exposure to Agent Orange and/or that they are secondary to his diabetes. See the June 2014 statement. Although current VA regulations do not provide hypertension as a presumptive disability associated with herbicide exposure, the National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was “limited or suggestive evidence of an association” between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). The category “limited or suggestive evidence of an association” means that the “[e]vidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” 77 Fed. Reg. at 47,928; 75 Fed. Reg. at 32,542. The Secretary of VA concluded that the studies cited to by NAS were not sufficient to establish a “positive association” between hypertension and Agent Orange exposure to warrant a new presumption of service connection for hypertension on this basis. See id. Nevertheless, NAS’s finding of “limited or suggestive evidence of an association” between Agent Orange exposure and hypertension is at least sufficient to satisfy the “low threshold” of whether the Veteran’s hypertension may be related to service to warrant an opinion that includes consideration of this study. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in pertinent part, that an examination or opinion is warranted when there is an indication that a current disability may be related to an in-service event). In this regard, although presumptive service connection for hypertension is not available based on herbicide exposure, the claim may still be established with proof of direct causation. 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”). The Board therefore finds that a medical opinion is warranted. With regard to the claim for service connection for peripheral neuropathy, private treatment records indicate that in 1997, the Veteran was noted to have neuralgia, the etiology of which was unclear, but that it could be due to diabetes. Treatment records dated since then are silent for mention of neuropathy. As such, remand is necessary to determine the nature and etiology of any diagnosed peripheral neuropathy. The matters are REMANDED for the following action: 1. Send the claims file to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the Veteran’s hypertension. The Veteran should not be scheduled for an examination unless deemed necessary by the VA medical professional rendering an opinion on this claim. After reviewing the entire record, the examiner should provide an opinion on the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its clinical onset during active service or is related to any incident of service, to include exposure to herbicides? If the examiner concludes that the Veteran’s hypertension is not etiologically related to his in-service exposure to Agent Orange, that conclusion may not be based solely on the fact that the NAS study did not conclude that there was positive link between hypertension and Agent Orange exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012); Notice on Health Outcomes Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,542 (June 8, 2010). b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was either (i) caused by, or (ii) aggravated (i.e., worsened) by his service-connected diabetes mellitus type II? The examiner must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Send the claims file to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the claimed peripheral neuropathy. The Veteran should not be scheduled for an examination unless deemed necessary by the VA medical professional rendering an opinion on this claim. After reviewing the entire record, the examiner should first indicate all upper and/or lower extremity diagnoses relevant to the claimed peripheral neuropathy. The examiner should then provide an opinion on the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the any diagnosed peripheral neuropathy had its clinical onset during active service or is related to any incident of service, to include exposure to herbicides? b) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed peripheral neuropathy was either (i) caused by, or (ii) aggravated (i.e., worsened) by his service-connected diabetes mellitus type II? The examiner must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.