Citation Nr: 21024862 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-13 371 DATE: April 26, 2021 ORDER Entitlement to service connection for ischemic heart disease is granted. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for hypertension, secondary to ischemic heart disease, is remanded. FINDINGS OF FACT 1. Based on his credible assertions and corroborating evidence of record, the evidence supports a finding that the Veteran served near the Korean Demilitarized Zone (DMZ) at times from May 1969 to March 1970, and exposure to herbicide agents is presumed. 2. The Veteran’s ischemic heart disease is presumed to be related to in-service herbicide exposure. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease are met. 38 U.S.C. §§ 1101, 1110, 1116B, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from March 1968 to March 1970. He contends that he was exposed to herbicides during service in Korea along the Demilitarized Zone (DMZ). The Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans’ Appeals (Board) hearing at the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in June 2019. This case was previously before the Board in September 2019, at which point the case was stayed pending the enactment of the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act), Pub. L. No. 116-23, 133 Stat. 966. After the BWN Act became effective January 1, 2020, the Board, in pertinent part, found that new and material evidence had been received to reopen the claims for service connection for peripheral neuropathy of the left upper and lower extremities, diabetes mellitus, ischemic heart disease, and hypertension, to include as secondary to ischemic heart disease. The Board then remanded the claims on the merits in January 2020. The AOJ substantially complied with the Board remand directives and the case has been returned to the Board for appellate review. Service Connection 1. Entitlement to service connection for ischemic heart disease The Veteran seeks service connection for ischemic heart disease due to exposure to herbicides during his service in Korea. He testified before the undersigned Veterans Law Judge in June 2019 that his duties in Korea as a communications lineman included working in or near the DMZ. See June 2019 Board hearing transcript, p. 4. He noted that they travelled around the DMZ in a support group to repair any communication wires that were damaged by hostile forces. Id. at 4-5. 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 elements required to establish service connection are: (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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be established on a presumptive basis for certain enumerated diseases listed at 38 C.F.R. § 3.309 (e) if a veteran was exposed to an herbicide agent, such as Agent Orange, during service. Ischemic heart disease (including coronary artery disease) is one of the listed diseases presumed to be due to Agent Orange exposure, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Although veterans who served in Vietnam during the Vietnam era are presumed to have been exposed to herbicide agents, the Veteran in this case served in Korea. There is a limited presumption of exposure to herbicide agents, such as Agent Orange, for veterans who served in Korea near the DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. Prior to January 1, 2020, the presumption of in-service herbicide exposure in Korea was limited to certain Veterans who served in Korea as part of a unit that, as determined by the Department of Defense, operated near the Korean DMZ (in an area where herbicide agents were known to have been applied) between April 1, 1968 and August 31, 1971. 38 C.F.R. § 3.307 (a)(6)(iv). However, the BWN Act, later codified at 38 U.S.C. § 1116B, extended the presumption of herbicide agent exposure, such as Agent Orange, to veterans who, during active military, naval, or air service, served in or near the Korean DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. See 38 U.S.C. § 1116B (effective January 1, 2020). The record shows a diagnosis of coronary atherosclerosis of native coronary artery. See, e.g., January 2012 private treatment record. Thus, the question at issue is whether the Veteran served in or near the Korean DMZ during the time period prescribed by statute, such that he may be presumed to have been exposed to herbicide agents. The Board notes that the Veteran’s records do not show that he was assigned to any of the units or entities that are identified by DoD as operating in or near the Korean DMZ between September 1, 1967 and August 31, 1971, but that he did service in Korea during this time period. The Veteran’s DD 214 shows that his military occupational specialty was lineman team chief (36C40). His military personnel records show that he was a lineman with “Co B 51st Sig Bn (Corps)” while stationed in Korea from June 1969 to March 1970. The Veteran testified at the Board hearing that his job as a communications lineman was to repair communications wires on the DMZ about once or twice a month. See June 2019 Board hearing transcript, pp. 3-5. He identified the area where he was stationed in Korea as Uijeongbu. Id. at 3. A request was submitted to the Defense Personnel Records Information Retrieval System (DPRIS)/Joint Services Records Research Center (JSRRC) to determine herbicide exposure. In December 2020, JSRRC noted that it reviewed the 1969 unit history submitted by the Headquarters, 51st Signal Battalion (51st Sig Bn) and the 1969 chronology submitted by the 8th US Army. The history documents the unit was stationed at Camp Pililaau, Uijeongbu, South Korea. The mission of the 51st Sig Bn was to provide signal communications for all echelons of the I Corps Headquarters. The non-tactical mission was to install and maintain lead covered cable at Camp Red Cloud and vicinity and connecting the joint duty office on the demilitarized line to the joint security area south of the demilitarized zone (DMZ). However, the records do not mention or document the use, storage, spraying, or transporting of tactical herbicides including Agent Orange. Given the foregoing evidence, the Board resolves all reasonable doubt in favor of the Veteran to find that he was exposed to an herbicide agent, as defined by 38 C.F.R. § 3.307 (a)(6), during his service in Korea. The JSRRC’s response in December 2020 notes that the records “do not document any use, storage, spraying or transportation of herbicides to include Agent Orange.” However, the Veteran’s assertion of herbicide agent exposure is not only based on the types of activities he reportedly performed while a member of his unit, but also by his presence at other areas where herbicide agents were known to have been used. The Veteran asserted that his duties were not limited to Uijeongbu, the base of the 51st Signal Battalion. Rather, he consistently stated that as a communication lineman, he travelled to and near the DMZ to repair communications lines. As noted, he testified that they travelled around the DMZ in a support group to repair any communication wires that were broken by hostile forces. See June 2019 Board hearing transcript, at 4-5. This is in line with the JSSRC finding that the 51st Battalion was responsible for signal communications at all echelons of the I Corps and that it provided normal post signal services at I Corps. Based on this competent, credible, and probative evidence, the Veteran’s statements that he did travel in or near the DMZ on at least a few occasions during his deployment to Korea in the course of his duties are entitled to significant probative weight in this case. See, e.g., 38 U.S.C. § 1154(a). The Board does not find a basis in the record that lessens the Veteran’s credibility regarding his statements as to his circumstances of service. Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff’d per curium, 78 F.3d 604 (Fed. Cir. 1996). The nature of the Veteran’s assigned duties as a lineman weigh in favor of finding that the Veteran was present in or near the DMZ while stationed in Korea from May 1969 to March 1970. Resolving reasonable doubt in the Veteran’s favor, and as the Board finds the Veteran’s assertions that he served in or near the DMZ during his service in Korea to be credible and substantiated, he is therefore presumed to have been exposed to herbicide agents. Accordingly, entitlement to service connection for ischemic heart disease (coronary artery disease) is presumed under the provisions of 38 C.F.R. § 3.307 and § 3.309(e). 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. The Veteran testified that he was diagnosed with neuropathy around the same time as his diabetes in 2003 by Dr. Ongsiako. Private treatment records show the Veteran was diagnosed with bilateral median nerve disorder at the wrist as in carpal tunnel syndrome and sensorimotor polyneuropathy in July 2019. He also was diagnosed with predominant axonal greater than demyelinating type sensorimotor polyneuropathy of the lower extremities in July 2019. While the Veteran is presumed to have been exposed to herbicides in service, the only type of peripheral neuropathy that is presumptively related to herbicide exposure is early onset peripheral neuropathy. A medical opinion is warranted to determine the nature and etiology the Veteran’s neuropathy. 3. Entitlement to service connection for hypertension, secondary to ischemic heart disease is remanded. The Veteran contends that his hypertension is secondary to his ischemic heart disease, which, as a result of this decision is service connected. Private treatment records dated in May 2011 note that the Veteran had a history of hypertension. He was noted as having essential hypertension, benign, in January 2012. An ischemic heart disease Disability Benefits Questionnaire (DBQ) dated in April 2012 notes a diagosis of coronary artery disease, hypertension, and hyperlipidemia diagnosed in October 2008. It was noted that these diagnoses pertained to ischemic heart disease. The Board cannot make a fully-informed decision on the issue of service connection for hypertension, secondary to coronary artery disease because no VA examiner has opined whether hypertension was caused or aggravated by the (now) service-connected ischemic heart disease. 4. Entitlement to service connection for diabetes mellitus Diabetes mellitus is a disease that is presumptively related to herbicides exposure, which has been conceded in this case. The record, however, does not confirm a diagnosis of diabetes. The Veteran’s private physician Dr. Ongsiako referred the Veteran for diagnostic testing done in December 2007, March 2011, July 2011, and November 2011, which shows elevated fasting glucose levels. The Veteran’s urea nitrogen and BUN/ creatinine ration was high in March 2011. Diagnostic tests conducted in January 2012 show elevated readings for hemoglobin A1C, which notes that the Veteran was at an increased risk of diabetes. However, there is no medical evidence in the file confirming that the Veteran has been diagnosed with diabetes. The Veteran testified at the Board hearing that he was diagnosed with diabetes mellitus by Dr. Ongsiako in approximately 2003 and that he continues to receive treatment from Dr. Ongsiako every four to six months. Treatment records from Dr. Ongsiako should be obtained on remand. If the Veteran’s diabetes diagnosis is not confirmed in the private treatment records, a medical examination should be provided to determine whether the Veteran has a diagnosis of diabetes mellitus. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for treatment records from Dr. Ongsiako dated from approximately 2003 to present. Make two requests for the authorized records from Dr. Ongsiako unless it is clear after the first request that a second request would be futile. 2. Then, if a diagnosis of diabetes mellitus is not confirmed by the private treatment records obtained pursuant to directive number (1) above, schedule the Veteran for a VA examination to determine whether he has diabetes mellitus type II. 3. Schedule the Veteran for a VA examination to determine whether the Veteran’s hypertension is at least as likely as not proximately due to his service-connected ischemic heart disease; and/ or aggravated, i.e., worsened beyond its natural progression, by the service-connected ischemic heart disease. 4. Schedule the Veteran for a VA examination to determine whether he has a diagnosis of early onset peripheral neuropathy (or any other kind of neuropathy) of the left upper and left lower extremities that (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. If a diagnosis of diabetes mellitus is confirmed, please state whether his peripheral neuropathy of the left upper and left lower extremities is as likely as not proximately due to his diabetes mellitus; and/ or aggravated, i.e., worsened beyond its natural progression, by the diabetes mellitus. Also, please state whether the peripheral neuropathy of the left upper and left lower extremity is at least as likely as not related to in-service exposure to herbicide agents. The examiner is advised that a negative opinion cannot be based solely on the fact that the peripheral neuropathy (other than early-onset peripheral neuropathy) of the left upper and left lower extremity is not on the list of diseases that are presumptively associated with exposure to herbicide agents. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.