Citation Nr: 21025824 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-15 999 DATE: April 29, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. REMANDED Entitlement to service connection for kidney cancer is remanded. FINDINGS OF FACT 1. Diabetes mellitus, type II, had its’ onset in service. 2. Erectile dysfunction as well as peripheral neuropathy of the bilateral upper and lower extremities are caused by the service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria to establish service connection for diabetes mellitus, type II, erectile dysfunction, and peripheral neuropathy of the bilateral upper and lower extremities have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.203, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Air Force (USAF) from December 1968 to February 1974 with service in the Republic of Vietnam during 1970. The Veteran died on April [REDACTED], 2018. The appellant is the Veteran’s surviving spouse and has been substituted as the claimant for the purposes of processing the service connection claims to completion. 38 U.S.C. § 5121A. The Service Connection Claims The Veteran during his lifetime claimed he was entitled to service connection for diabetes mellitus, type II, due to exposure to herbicide agents while flying in the Republic of Vietnam in 1970 as well as neuropathy of all extremities and erectile dysfunction secondary to his diabetes mellitus, type II. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to 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 (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. 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). Additionally, the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) recently held that service “in the Republic of Vietnam” does not require “a foot-on-land requirement” and includes the “12 nautical mile territorial sea” and these veterans can prevail themselves of the presumptions found at 38 C.F.R. §§ 3.307, 3.309(e). See Procopio, 913 F.3d at 1378-79. Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B–cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non–Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for diabetes mellitus, type II At the outset, the Board notes that in a November 2019 rating decision the regional office (RO) granted service connection for cause of death and at that time it conceded that the Veteran had service in the Republic of Vietnam during 1970. See 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). Therefore, the Board finds that the Veteran is presumed to have had herbicide exposure. See 38 U.S.C. § 1116. The Board also finds the evidence of record establishes that the Veteran had a diagnosis for diabetes mellitus, type II. See, e.g., VA treatment record dated in January 2011. Given the above, and because there is no evidence of record to rebut the presumptive relationship of the diabetes mellitus, type II, to the Veteran’s presumed herbicide exposure, the Board finds that the criteria to grant service connection for diabetes mellitus, type II, on a presumptive basis have been met. 38 U.S.C. §§ 1110, 1116(f), 5107; 38 C.F.R. §§ 3.303, 3.307(d), 3.309. Entitlement to service connection for erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities As to the claims of service connection for erectile dysfunction as well as bilateral upper and lower extremity peripheral neuropathy, the record shows the Veteran being diagnosed with these disorders prior to his death. See, e.g., January 2009 letter from T.O., M.D. and diabetic treatment notes; treatment records from Urologic Institute of High Desert dated 2010 to 2014. Moreover, treatment records generated prior to the Veteran’s death described his erectile dysfunction as secondary to diabetes mellitus. Similarly, the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities are described as “diabetic neuropathy” and are also noted to be secondary to his now service-connected diabetes. See January 2009 letter from T.O., M.D. and diabetic treatment notes; see also treatment records from Urologic Institute of High Desert dated 2010 to 2014. Additionally, the Board finds the above medical records the most competent and credible as well as the most probative evidence of record because they are supported by the other evidence found in the record and because they are not contradicted by any other medical evidence of record. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, after resolving all doubt in favor of the appellant, the Board finds that the Veteran’s erectile dysfunction as well as his bilateral upper and lower extremity peripheral neuropathy were due to his newly service-connected diabetes mellitus, type II, and service connection is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310; Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for kidney cancer During his lifetime the Veteran consistently alleged that his kidney cancer was secondary to his diabetes mellitus, type II. Herein, the Board has granted entitlement to service connection for diabetes mellitus, type II. Moreover, medical treatment records confirm that the Veteran was diagnosed with left kidney cancer. See Urologic Institute of High Desert dated 2010 to 2014. Given the above, the Board finds that the criteria to obtain an etiology opinion as to the relationship between the Veteran’s service-connected diabetes mellitus, type II, and his diagnosed kidney cancer have been met. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that a remand is warranted to obtain the VA medical opinion. See 38 U.S.C. § 5103A (d). When obtaining the opinion and again adjudicating the claims, the examiner and thereafter the regional office (RO) should be mindful of the fact that the United States Court of Appeals for Veterans Claims (Court) in Ward v. Wilkie, 31 Vet. App. 233 (2019) provided a new definition of aggravation which now includes a temporary worsening of a disability. While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the appellant, associate with the claims file any outstanding private treatment records. If possible, the appellant should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. Obtain an opinion from a qualified medical professional to address the nature and origin of the Veteran’s kidney cancer. The claims file should be made available and reviewed by the examiner. Following consideration of all the evidence of record (both lay and medical), the examiner is asked to address the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) the Veteran’s kidney cancer was causally related to active service to include his conceded exposure to herbicides serving in the Republic of Vietnam. (b) Provide an opinion as to whether kidney cancer developed in the first post-service year. (c) Provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the kidney cancer was caused by a service-connected disability, to include the Veteran’s now service-connected diabetes mellitus, type II. (d) Provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the kidney cancer was aggravated by a service-connected disability, to include the Veteran’s now service-connected diabetes mellitus, type II. In providing answers to all the above questions the examiner should consider and discuss the Veteran’s earlier competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner cannot rely solely on negative evidence. In providing answers to the above questions, the examiner cannot rely on the fact that the National Academy of Sciences (NAS) may not have found a relationship between the Veteran’s kidney cancer and herbicide exposure. In providing answers to all the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the aggravation opinion the examiner should consider and discuss the Court in Ward, supra, new definition of aggravation which now includes temporary worsening of a disability. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (Continued on the next page)   If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.