Citation Nr: 21028943 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-66 540 DATE: May 12, 2021 ORDER Entitlement to service connection for type II diabetes mellitus is granted. Entitlement to service connection for lacunar cerebral infarcts is granted. REMANDED Entitlement to service connection for ulcerative colitis (also claimed as autoimmune deficiency) is remanded. Entitlement to service connection for ankylosing spondylitis (also claimed as autoimmune deficiency) is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left wrist disability is remanded. FINDINGS OF FACT 1. The Veteran's type II diabetes mellitus is presumed to be related to his conceded in-service herbicide agent exposure. 2. The Veteran's lacunar cerebral infarcts are proximately due to his service-connected type II diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for lacunar cerebral infarcts as secondary to type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to January 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a transcript is of record. Service Connection 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-element test for service connection requires evidence of: (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). Additionally, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 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; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. Additionally, certain disorders, including type II diabetes mellitus, if manifest to a degree of 10 percent or more for an herbicide agent-exposed veteran may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). 1. Entitlement to service connection for type II diabetes mellitus. The Veteran asserts that his type II diabetes mellitus is due to his exposure to herbicide agents during his nautical service in the offshore waters of Vietnam. As noted above, diabetes is a disease recognized as being associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). The Veteran has not asserted, nor does the evidence suggest, other theories of etiology other than herbicide agent exposure. As a preliminary matter, the Veteran's VA treatment records from Aurora healthcare show a current diagnosis of type II diabetes mellitus. With a current disability established, the question becomes whether the Veteran was exposed to herbicide agents during his active service in the offshore waters of Vietnam. An April 2020 internal VA memorandum shows the Veteran's exposure to herbicide agents was conceded based on the Veteran's nautical service in the offshore eligible waters of Vietnam, as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 2, 133 Stat. 966, 966-67. With in-service herbicide agent exposure conceded, the Veteran's type II diabetes mellitus is presumptively found related to his in-service exposure to herbicide agents. Service connection is therefore warranted. 2. Entitlement to service connection for lacunar cerebral infarcts. The Veteran seeks entitlement to service connection for lacunar cerebral infarcts secondary to his service-connected type II diabetes mellitus. For the reasons explained below, service connection for lacunar cerebral infarcts is warranted. A May 2019 private treatment record from Aurora healthcare shows that Dr. E.T., a neurologist, found that the Veteran's scattered small lacunar strokes are due to his service-connected type II diabetes mellitus. In addition, a December 2020 private treatment record from Aurora healthcare shows that Dr. S.G. found that lacunar infarcts in the Veteran's brain are a complication of his type II diabetes mellitus. The Board notes that there are no opposing medical opinions offering alternative etiologies for the Veteran's lacunar cerebral infarcts. Therefore, based on the competent causal findings of his treating physicians, the Veteran's lacunar cerebral infarcts are found to be secondary to his service-connected type II diabetes mellitus. 38 C.F.R. § 3.310. Accordingly, service connection for lacunar cerebral infarcts is warranted. REASONS FOR REMAND 1. Entitlement to service connection for ulcerative colitis (also claimed as autoimmune deficiency) is remanded. 2. Entitlement to service connection for ankylosing spondylitis (also claimed as autoimmune deficiency) is remanded. At his January 2021 videoconference hearing, the Veteran asserted his ulcerative colitis and ankylosing spondylitis disabilities are due to his exposure to herbicide agents during his service in the offshore waters of Vietnam. With the Veteran's herbicide agent exposure conceded, a medical opinion is necessary as the Board cannot make a fully-informed decision on the issue of service connection because no VA examiner has opined whether exposure to herbicide agents has a causal correlation to the claimed disabilities. 3. Entitlement to service connection for a right wrist disability is remanded. 4. Entitlement to service connection for a left wrist disability is remanded. At his January 2021 videoconference hearing, the Veteran asserted that his right and left wrist chronic pain disabilities might be secondary to his ulcerative colitis claimed as autoimmune deficiency, or related to stress on his joints during service. The Board cannot make a fully-informed decision on the issue of service connection for right and left wrist disabilities because no VA examiner has opined whether the disabilities are secondary to the Veteran's ulcerative colitis claimed as autoimmune deficiency, or whether the disabilities are causally related to the Veteran's stress on his wrist joints during service. The matters are REMANDED for the following action: Obtain opinions regarding the nature and etiology of the Veteran's claimed disabilities of ulcerative colitis, ankylosing spondylitis, and bilateral wrist conditions from an appropriate clinician(s). If the examiner(s) determines it necessary, schedule the Veteran for VA examinations for his claimed disabilities. The examiner must review the claims file and a copy of this Remand. The examiner is asked to provide a response to the following: Is the Veteran's claimed ulcerative colitis (also claimed as autoimmune deficiency): a) at least as likely as not (50 percent or greater probability) 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 ulcerative colitis is not on the list of diseases that are presumptively associated with exposure to herbicide agents. b) at least as likely as not related to service? Is the Veteran's claimed ankylosing spondylitis (also claimed as autoimmune deficiency): a) at least as likely as not (50 percent or greater probability) 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 ulcerative colitis is not on the list of diseases that are presumptively associated with exposure to herbicide agents. b) at least as likely as not found to have (1) began during active service, (2) manifested within one year after discharge from service, or (3) been noted during service with continuity of the same symptomatology since service? c) at least as likely as not (50 percent or greater probability) related to service? Are the Veteran's claimed left and right wrist disabilities: a) at least as likely as not related to service? b) If the Veteran's ulcerative colitis is found to be of service origin, then is it at least as likely as not (50 percent or greater probability) that his bilateral wrist disabilities are proximately due to the ulcerative colitis? c) If the Veteran's ulcerative colitis is found to be of service origin, then is it at least as likely as that his bilateral wrist disabilities are aggravated, i.e., worsened beyond its natural progression, by the ulcerative colitis? A complete rationale must be provided for the opinions rendered. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Caban, 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.