Citation Nr: 21026088 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-36 648 DATE: April 29, 2021 ORDER Entitlement to service connection for diabetes mellitus type II, claimed as due to herbicide agent exposure, is granted. Entitlement to service connection for left foot neuropathy as secondary to diabetes mellitus type II is granted. Entitlement to service connection for right foot neuropathy as secondary to diabetes mellitus type II is granted. REMANDED Entitlement to service connection for a skin condition, to include skin blistering as secondary to herbicides agent exposure or diabetes mellitus type II, is remanded. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), major depressive disorder, and anxiety disorder, is remanded. FINDINGS OF FACT 1. With resolution of reasonable doubt in his favor, the record suggests that the Veteran was exposed to herbicide agents while he served in Thailand. 2. The Veteran’s diagnosed diabetes mellitus type II is presumed to be related to his in-service herbicide agent exposure. 3. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his currently diagnosed right foot neuropathy is caused by his now service connected diabetes mellitus type II. 4. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his currently diagnosed left foot neuropathy is caused by his now service connected diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus type II as due to in-service herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for left foot neuropathy as secondary to diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for right foot neuropathy as secondary to diabetes mellitus type II have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to March 1973, to include service in Thailand. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2010 rating decision, which denied the Veteran's claims of entitlement to service connection for anxiety disorder (also claimed as depression and mental stress), service connection for type II diabetes mellitus, service connection for right foot neuropathy, service connection for left foot neuropathy, and service connection for skin blistering of the shins. He perfected a timely appeal to that decision. In January 2014, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In his October 2015 substantive appeal, the Veteran requested a hearing before the Board at the RO; however, he subsequently withdrew that request in February 2019. Therefore, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(e). The Veteran has been diagnosed with more than one mental health condition, including PTSD, major depressive disorder, and anxiety disorder. To provide the broadest and most sympathetic review, the claim has been recharacterized to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection can also be established on a presumptive basis for certain diseases associated with exposure to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection on this basis, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. See 38 U.S.C. § 1116(f); 3.307(a)(6). If a veteran was exposed to herbicide agents during active service and develops an enumerated disease associated with exposure to herbicide agents, to include diabetes mellitus type II, the disease shall be service-connected even if there is no record of such disease during service. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). While all veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent, VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes, as evidenced in a declassified Vietnam era Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide agent exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. That allows for presumptive service connection of the diseases associated with herbicide agent exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of the Royal Thai Air Force bases 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 should be acknowledged on a facts found or direct basis. However, that applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for diabetes mellitus type II, claimed as due to exposure to herbicide agents The Veteran seeks to establish service connection for diabetes mellitus type II as due to exposure to herbicide agents. At his personal hearing in 2014, the Veteran reported that he performed military intelligence and was stationed in Nakhon Phanom, Thailand and that this was at the Royal Thai Air Force Base, which was just outside of the border of Laos and within 75 miles of Vietnam. The Veteran maintained that his barracks was located along the perimeter and there was extensive use of Agent Orange on the base. In this regard, the Board notes that post service clinical records, VA as well as private treatment records, confirm that the Veteran has been diagnosed with diabetes mellitus type II. Treatment reports from Kaiser Permanente, dated from July 2002 to September 2002, reflect diagnoses of diabetes mellitus type II. A VA treatment note, dated in June 2009, reflects an impression of diabetes. As such, the dispositive issue in this case is whether the Veteran was exposed to herbicide agents during service. Service personnel records confirm that the Veteran served with the 6908 Security Squadron and was stationed at Nakhon Phanom Royal Thai Air Force Base in Thailand during the Vietnam era, in 1972. His MOS was radio communication analysis specialist (code braker). The Veteran has stated in several statements to VA and in hearing testimony that his duties involved military intelligence, which was deciphering and decoding data. Finally, the Veteran indicated that his barracks were located along the perimeter of the base, and Agent Orange was used extensively on base. Submitted in support of the claim was the declassified Vietnam-era Department of Defense (DOD) document entitled, “Project CHECO Southeast Asia Report: Base Defense in Thailand.” The report described Nakhon Phanom Royal Thai Air Force Base as being a “high threat” area because of its proximity to Laos (14km) and the high level of C activity in nearby villages. This document also reported that Nakhon Phanom Royal Thai Air Force also had the usual rainy season vegetation problems but heavy use of herbicides kept the growth under control in the fenced areas. Interior vegetation was usually kept closely cut and lighting around the straight perimeter was excellent and NF-2 light-all units were placed at the drainage ditches which went through the fences. The document further shows that the Nakhon Phanom Royal Thai Air Force Task Force Alfa (TFA) complex was a computer radio center which picked-up, interpreted and displayed data reported from air-laid acoustic sensors seeded in Laos. Thus, as official records establish the use of herbicide agents on the perimeters of certain airbases in Thailand (including Nakhon Phanom), and given the Veteran's competent and credible report of his presence at the perimeter of Nakhon Phanom Royal Thai Air Force Base during a period when herbicide agents were used, the Board finds that the Veteran was exposed to herbicide agents during his Vietnam-era service in Thailand. Thus, as the Veteran's in-service exposure to herbicide agents has been established and as there is no affirmative evidence of record showing an intercurrent etiology for his currently-diagnosed diabetes, the Board concludes that the criteria for service connection for diabetes mellitus, as presumptively due to in-service herbicide agent exposure, are met. 38 C.F.R. § 3.309(e). Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that presumptive service connection for diabetes mellitus type II based on in-service exposure to herbicide agents is warranted. As the criteria for service connection have been met, the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to service connection for left foot neuropathy as secondary to type II diabetes mellitus 3. Entitlement to service connection for right foot neuropathy as secondary to type II diabetes mellitus The Veteran is seeking to establish service connection for neuropathy of the feet, claimed as due to herbicide agent exposure. The record reflects that the Veteran has current diagnoses of neuropathy of the left lower extremity and right lower extremity and there is medical evidence linking the neuropathy to his diabetes mellitus. In this regard, VA as well as private treatment reports, dated from April 1997 through June 2016, show that the Veteran has been noted to have diabetes mellitus with peripheral neuropathy. Significantly, an August 2002 private treatment note reflects a diagnosis of right foot neuropathy, which the examiner noted was likely secondary to diabetes. Among the records is a treatment report from Dr. D. L., dated in August 2005, wherein the provider stated that the Veteran appeared to have peripheral neuropathy, and the most likely cause is that of diabetes. In September 2010, the Veteran was diagnosed with diabetic neuropathies. A VA psychiatry discharge note, dated April 2, 2013, reflects a diagnosis of diabetes mellitus with neuropathy. Furthermore, in a podiatry operative note, dated in March 2016, the assessment was diabetes mellitus, type II, with neuropathy. As of this decision, the Veteran is now service connected for diabetes mellitus type II. Accordingly, resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that the Veteran's currently diagnosed neuropathy of the right and left feet are caused by his service-connected diabetes mellitus type II. Therefore, the Veteran's service connection claims for neuropathy of the right and left feet as secondary to service-connected diabetes mellitus type II is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for a skin condition, including blisters, as secondary to herbicide agent exposure or service connected diabetes mellitus type II is remanded. The Veteran maintains that he has a skin disorder that is related to his period of active service and exposure to herbicide while stationed in Thailand. As noted above, the Board finds that the Veteran was exposed to herbicide agents during his Vietnam-era service in Thailand. In the alternative, the Veteran alleges that his skin condition is secondary to his diabetes mellitus. Post service VA and private treatment records show that the Veteran has been diagnosed with various skin conditions. A podiatry note, dated in February 2010, indicates that the Veteran was seen for management of his diabetic feet; the impression was diabetes mellitus, type II, neuropathy and venous stasis. He was admitted for osteomyelitis of the left foot in December 2010 and he was treated with medication and the condition resolved. A podiatry note, dated in April 2011, reflects an assessment of diabetic foot ulcer, bilateral lower extremity superficial wounds, and right foot mass. A VA progress note, dated in September 2015 indicted that the Veteran had a history of diabetes mellitus type II and bilateral Charcot arthropathy for right foot ulcer at the plantar midfoot that is now mostly callused; he also had new abrasion on the left great toe. A podiatry note, dated in March 2016, reflect diagnosis of callus and onychomycosis. VA's duty to assist includes providing a medical examination when necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). To the extent that the record reflects a current skin condition, and conceded in-service exposure to herbicide agents, and a question of whether the current skin conditions may be associated with the in-service event, the Board finds that an examination is necessary to obtain a medical opinion addressing the nature and etiology of any current skin condition. McClendon, 20 Vet. App. at 83-86. On remand, an etiology opinion should be obtained. 2. Entitlement to service connection for an acquired psychiatric disorder, including PTSD and anxiety disorder is remanded. The Veteran is seeking to establish service connection for an acquired psychiatric disorder, which he claims developed as a result of his period of active duty in Thailand. In a statement in support of his claim, dated in May 2011, the Veteran indicated that, as a code breaker, his duties consisted of determining valid targets for bombing in Vietnam. The Veteran related that, during his tour of duty in Nakhon Phanom Royal Thai Air Force, Thailand, the base was regularly on alert status; he noted that, at night, there were constantly trip wire flares going off and his barracks was on the perimeter. The Veteran also stated that, after the bombings, they would intercept messages about the number of soldiers and civilians, including children, that were killed or wounded. The Veteran indicated that he has vivid nightmares as a reminder of the people killed starring at him as they die or are maimed. The Veteran also recalled the mistreatment he received upon returning home and he felt that he could not dispute the attacks because he felt responsible for civilian casualties. The Veteran indicated that he has experienced a lot of stress, anger, anxiety, and guilt as a result of his actions. Notwithstanding the fact that the Veteran's reported stressors have not been verified, the regulations governing PTSD were amended, effective on July 13, 2010. Specifically, that amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39843-52 (July 13, 2010). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, supra. The threshold for finding a link between current disability and service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, supra; McLendon v. Nicholson, supra. A review of the record shows that during the pendency of this appeal, the Veteran has been variously diagnosed with PTSD, major depressive disorder, and anxiety disorder. In light of the reported and documented psychiatric symptoms that the Veteran has asserted are a result of active service or secondary to an acquired psychiatric disability, and the post-service medical evidence showing treatment for these symptoms, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present acquired psychiatric disability. McLendon v. Nicholson, supra. On remand, such etiology opinion should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his skin disorder. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. The examining is asked to answer the following: (A) Identify/diagnose any current skin disorder that has existed during the appeal period (if any). (B) For each identified skin disability the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the skin disorder was incurred during service, to include as due to the Veteran's presumed exposure to herbicide agents. (C) Is it at least as likely as not (50 percent probability or more) that the Veteran’s skin disorder was caused or aggravated by his service connected diabetes mellitus type II? The examiner must explain his/her reasoning for the conclusion reached. The examiner should be aware that the absence of the Veteran's disability on the list of disabilities subject to presumptive service connection is not dispositive evidence weighing against the claim. As such, it should not be used as the sole basis in support of a negative nexus opinion. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his acquired psychiatric disorder. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. The examining is asked to answer the following: (A) Identify all current acquired psychiatric disorders that has existed during the appeal period (if any). (B) If PTSD is diagnosed, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's PTSD is related or attributable to any incident of the Veteran's military service, to include fear of hostile military or terrorist activity. (C) For any diagnosed acquired psychiatric disorder other than PTSD, opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that such disorder had its onset during periods of active service or is otherwise related to his service. In providing these opinions, the examiner should consider the competent lay statements by the Veteran. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Suzie S. Gaston, 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.