Citation Nr: 21024883 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-27 850 DATE: April 26, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. Entitlement to service connection for ischemic heart disease (formerly claimed as heart attack, congestive heart failure, and ventricular fibrillation), as due to herbicide exposure, is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for kidney failure is remanded. Entitlement to service connection for liver inflammation/infection is remanded. Entitlement to service connection for high blood pressure is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, he was exposed to herbicide agents while serving on TDY in the Republic of Vietnam and near the Korean DMZ. 2. The Veteran’s currently diagnosed diabetes mellitus, type II, is presumed to have been incurred as a result of herbicide exposure. 3. The Veteran’s currently diagnosed ischemic heart disease is presumed to have been incurred as a result of herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for ischemic heart disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to December 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and May 2015rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issues of entitlement to service connection for diabetes mellitus, type II, and a heart disability were initially denied in a May 2013 rating decision. The RO later indicated that this denial was final and considered the claim on a new and material basis in the October 2015 rating decision. However, the Veteran indicated his disagreement with the May 2013 rating decision’s denial of the service connection claims for kidney failure, high blood pressure, liver inflammation/infection, a heart disability, and diabetes mellitus, type II, in an April 2014 lay statement. The Board accepts this statement as sufficient at that time to constitute a notice of disagreement. As such, the current appeal of these issues stems from the initial May 2013 rating decision and do not require a showing of new and material evidence. The Board also notes that the issues of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and peripheral neuropathy of the bilateral lower extremities were initially denied in a May 2015 rating decision. The Veteran submitted another formal claim for these issues and submitted additional evidence, specifically regarding his in-service exposure to Agent Orange, in July 2015. The RO issued a reconsideration of the claim, and the RO issued a new decision denying the claims in October 2015. The Veteran then filed a notice of disagreement in April 2016. As the Veteran has continuously prosecuted these claims and filed a notice of disagreement within one year of the initial May 2015 rating decision, the Board finds that the current service connection claims for peripheral neuropathy of the bilateral upper and lower extremities stems from the initial May 2015 rating decision and do not require a showing of new and material evidence. Generally, where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). However, when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156 (c)(1). In this case, the last prior denial of the claim for service connection for PTSD was issued by the RO in a May 2015 rating decision. Review of the claims file shows that relevant service treatment records, specifically documents showing temporary duty travel (TDY) to Korea, have been added to the record since the May 2015 denial. As such, the Board will reconsider the claims of service connection for an acquired psychiatric disorder, to include PTSD, on a de novo basis, without the need for new and material evidence. Although the issue certified to the Board was for PTSD, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized to comport with the record. The Veteran testified at a virtual hearing before the undersigned in January 2021. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Given the Board’s favorable disposition of the claim to reopen the service connection claim for an acquired psychiatric disorder and the service connection claims for diabetes mellitus, type II, and ischemic heart disease, the Board finds that all notification and development action needed to fairly adjudicate these parts of the appeal has been accomplished. Service Connection 1. Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. 2. Entitlement to service connection for ischemic heart disease (formerly claimed as heart attack, congestive heart failure, and ventricular fibrillation), as due to herbicide exposure, is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.307 (a)(6). If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops certain diseases to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). These diseases include diabetes mellitus, type II and ischemic heart disease, which includes coronary artery disease. 38 C.F.R. § 3.309 (e). Presumptive service connection is available for a Veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975. Under those conditions, the Veteran is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during service absent affirmative evidence to the contrary. In addition, a presumption of herbicide exposure has been extended to certain Veterans who served in or near the Korean demilitarized zone from August 1, 1968 to August 31, 1971. Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. In this case, the Veteran has consistently reported that he was sent on TDY to Korea and Cam Ranh Bay in Vietnam. In his lay statements, the Veteran reported that while he was stationed at the Yokota Air Base in Japan, he was part of a weapons load crew and required to go on TDY on several occasions. He was sent to the Osan, Kimpo, and Kunsan Air Bases in Korea and Cam Ranh Bay in Vietnam. He stated that he observed Agent Orange being sprayed at Osan base, which was approximately 50 miles south of the demilitarized zone (DMZ), and that he worked only 100 yards from the perimeter fence. He also stated that he observed barrels of Agent Orange being loaded and unloaded at the Korean bases. The Veteran was part of a four-man weapons load crew with fellow crewmembers, K.B., C.T., and D.P.. He reported that during roll call at Yokota Air Base in late 1969 or January 1970, a sergeant asked if anyone would take another airman’s TDY to Vietnam. The Veteran volunteered and was chosen because he had completed his “five level” training. In the April 2016 notice of disagreement, he provided further specific details about his service in Vietnam, to include exchanging MPC for NCO tokens to use at the NCO club and saving some of the currency from each base/country to bring home. At the January 2021 hearing, the Veteran reported that he believed he was exposed to Agent Orange at the Osan Air Base and the Korean DMZ when he went there on a trip. He also stated that he was sent to Vietnam on a TDY and reiterated that he had volunteered to take another airman’s place. Further, the volunteers had been asked if they had finished their five level, which he had. In May 2016 lay statements, the Veteran’s fellow crewmembers, Mr. C.T. and Mr. D.P., reported that they served with the Veteran at Yokota Air Base on the same crew. They stated that they were sent on TDYs to and from Osan and that there was very little vegetations at the Osan base even though it was green off the base. Mr. D.P. reported seeing barrels of Agent Orange near where they parked the C-123’s and C-130’s. In a July 2016 lay statement, the Veteran’s wife stated that she had met the Veteran before he was sent overseas. They wrote to each other and she received letters while he was in Japan, Korea, and Vietnam. In a January 2021 lay statement, Mr. D.P. reported that he and the Veteran had been sent for M-14 rifle training near the Korean DMZ in late 1969 or 1970 during a TDY to Kimpo. They were taken to the DMZ which was a mile or so from the range. Review of military personnel records, to include the Veteran’s DD-214, shows that the Veteran served as a weapons mechanic and a weapons load crew member. Further, performance reports show that while he was stationed at Yokota Air Base, he performed frequent TDY commitments. The record shows that he was sent on TDY to Osan, Kunsan, and Kimpo Air Base in Korea beginning January 1, 1970 to June 30, 1971. See AF 626 Request and Authorization for Temporary Duty- Military. The Veteran also submitted scanned images of old Vietnamese currency and an NCO club token with “Cam Ranh Bay” stamped on it that were in his possession. After careful review of the evidence of record, the Board finds that the Veteran’s lay statements regarding his TDY to Vietnam and exposure to Agent Orange at the Korean DMZ to be credible. Although the military personnel records do not show that the Veteran had TDY in Vietnam and was near the Korean DMZ, the Veteran’s consistent lay statements are corroborated by his wife and, significantly, his fellow crew members, Mr. C.T. and Mr. D.P. The Veteran clearly and specifically provided the circumstances of his TDY to Vietnam and his crew members corroborated the details of the Veteran’s TDY to Korea, to include his proximity to the Korean DMZ. Additionally, the Veteran also submitted scanned images of old Vietnamese currency and an NCO club token from Cam Ranh Bay. The Board finds the Veteran’s statements lay statements and those of his wife and fellow crew members to be credible and that there is no persuasive evidence to the contrary. As such, the Board finds that the Veteran served in the Republic of Vietnam and near the Korean DMZ; therefore, he is presumed to have been exposed to herbicides. Post-service VA and private treatment records, to include a February 2011 Agent Orange examination, show that the Veteran is currently diagnosed with diabetes mellitus, type II, and ischemic heart disease. As the Veteran is presumed to have been exposed to herbicides, including Agent Orange, while serving in Vietnam, his currently diagnosed diabetes mellitus, type II, and ischemic heart disease are presumed to be service connected. See 38 C.F.R. §§ 3.307 (a), 3.309(e). Therefore, service connection for diabetes mellitus, type II, and ischemic heart disease is established. See id.; 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. The Veteran contends that his claimed peripheral neuropathy of the bilateral upper and lower extremities is due to his in-service exposure to Agent Orange. Post-service medical records indicate that the Veteran has peripheral neuropathy due to his diabetes mellitus, type II, but do not specify if it is of the upper or lower extremities. In light of these records, the Veteran’s presumptive in-service exposure to herbicides, and now service-connected diabetes mellitus, type II, the Board finds that a remand is warranted to clarify whether the Veteran currently has peripheral neuropathy of the upper or lower extremities. 3. Entitlement to service connection for PTSD is remanded. In a February 2015 statement, the Veteran reported in-service stressors involving a plane crash at Osan Air Force Base (AFB), a plane crash at Yokota AFB, repeated alerts at the Osan base after the Pueblo incident, a plane crash at Nellis AFB, and a fire at Osan AFB which killed ground crew members. While there was a May 2015 formal finding on a lack of information to corroborate stressors associated with a claim for service connection for PTSD, it only noted that the Veteran had described a plane crash in Korea in a February 2015 statement. As such, it does not appear that a finding as to his other stressors was made. Further, the May 2015 finding stated that there was no evidence that the Veteran had served in Korea, however, he has submitted military personnel records showing that he TDY in Korea. Additionally, the Veteran submitted additional statements with further details of his in-service stressors from himself and other servicemembers, to include the names of pilots killed in the plane crashes. These statements include a Facebook conversation submitted on March 2018, the March 2018 notice of disagreement, two June 2018 lay statements, Facebook comments submitted on June 2018, an August 2018 lay statement from the Veteran’s wife, the August 2018 substantive appeal, the January 2021 hearing transcript, and a statement from a servicemember submitted on January 2021. A remand is required to allow VA to attempt to corroborate the Veteran’s reported stressors. Further, post-service treatment records show that the Veteran has been diagnosed with depression, PTSD, and unspecified trauma- and stressor-related disorder. These same records indicate that these psychiatric diagnoses may be due to either in-service incidents or the Veteran’s now service-connected disabilities. However, the evidence is insufficient for the Board to make a decision on the claim. Therefore, a remand is warranted to obtain a VA medical opinion to determine whether the Veteran’s acquired psychiatric disorder was etiologically related to active duty or secondary to his service-connected disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for kidney failure is remanded. 5. Entitlement to service connection for liver inflammation/infection is remanded. 6. Entitlement to service connection for high blood pressure is remanded. Regarding the service connection claims for kidney failure, liver inflammation/infection, and high blood pressure, the Veteran submitted a timely notice of disagreement with the May 2013 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240 – 41 (1999). The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran’s in-service stressors, including plane crash at Osan Air Force Base (AFB), a plane crash at Yokota AFB, repeated alerts at the Osan base after the Pueblo incident, a plane crash at Nellis AFB, a fire at Osan AFB which killed ground crew members, and attacks and alerts at the Cam Ranh AFB. If more details are needed, contact the Veteran to request the information. It is noted that the Veteran has submitted evidence showing that he served TDY at Osan AFB, Kimpo AFB, Kunsan AFB, and Cam Ranh AFB. 2. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should respond to the following: (a) List the acquired psychiatric disorders the Veteran has been diagnosed with since February 2015. It is noted post-service treatment records show that the Veteran has been diagnosed with depression, PTSD, and unspecified trauma- and stressor-related disorder. (b) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (c) Is it at least as likely as not (50 percent probability or greater) that any other acquired psychiatric disorder is due to his active duty service. (d) Is it at least as likely as not (50 percent probability or greater) that any other acquired psychiatric disorder is due to or aggravated by his service-connected disabilities. A complete rationale for any opinion expressed must be provided. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed peripheral neuropathy of the bilateral upper and lower extremities. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should respond to the following: (a) Clarify whether the Veteran currently has a diagnosis of peripheral neuropathy of the upper or lower extremities. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s peripheral neuropathy, if diagnosed, is due to his active duty service, to include his presumed in-service exposure to Agent Orange. (c) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s peripheral neuropathy, if diagnosed, is due to or aggravated by his service-connected disabilities, to include diabetes mellitus, type II. A complete rationale for any opinion expressed must be provided. 4. Send the Veteran and his representative a statement of the case that addresses the service connection claims for kidney failure, liver inflammation/infection, and high blood pressure. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.