Citation Nr: 21030572 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-42 958 DATE: May 19, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is granted. REMANDED Entitlement to service connection for testicular cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for left hand peripheral neuropathy, to include as due to herbicide exposure or secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for right hand peripheral neuropathy, to include as due to herbicide exposure or secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for left foot peripheral neuropathy, to include as due to herbicide exposure or secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for right foot peripheral neuropathy, to include as due to herbicide exposure or secondary to diabetes mellitus, type II, is remanded. FINDING OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during his active service. 2. The Veteran has been diagnosed with diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, to include as due to herbicide exposure, have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1967 to May 1971. The Veteran has testified before the undersigned Veterans Law Judge at videoconference hearings in July 2019 and February 2021. Transcripts are of record. The claims were denied in a May 2015 rating decision. New and material evidence was submitted in August 2015, and the claims were denied in a September 2015 rating decision. Since new and material evidence was received within a year of the May 2015 rating decision, that decision did not become final, and the issues are as stated above. 38 C.F.R. § 3.156(b). Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection will also be presumed for certain chronic diseases, including diabetes mellitus, if manifest to a compensable degree within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309. Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). In order for the presumption to apply, the claimant must be a veteran with 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1). An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(v). "Regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means that the individual was assigned to an Air Force or an Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating his or her duties as a flight, ground maintenance, or medical crew member on such aircraft. 38 C.F.R. § 3.307(a)(6)(v). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, certain enumerated diseases, including diabetes mellitus, type II, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Veteran's service personnel records show that he served in the Air Force and was stationed at Clark Air Force Base from January 1969 to June 1970 as a jet engine mechanic. He testified at the February 2021 hearing that he worked on C-123 aircraft, including ones that were used for spraying. He worked on the engines, and also had to check the fuselages of some aircraft to check for leaks. The Veteran further testified that he worked on C-123s throughout the time he was stationed at Clark. Aircraft he worked on came from Thailand, Vietnam, and Cambodia. There were no safety measures or protections when working on planes, other than hearing protection. The Veteran submitted information from VA listing units whose personnel had regular and repeated exposure to contaminated C-123s used to spray Agent Orange in Vietnam. It included the 405th Fighter Wing at Clark Air Force Base from 1969 to 1970. The Veteran had an Air Force Specialty Code indicating duties as a ground maintenance specialist, and he was permanently assigned in service to work on C-123 aircraft at Clark Air Force Base. Given the known presence of C-123 aircraft used to spray herbicide agents in Vietnam at Clark Air Force Base at the time that the Veteran was based there, and that he regularly worked on C-123s at Clark, the Board finds it can be presumed he was exposed to herbicide agents during service. See 38 C.F.R. § 3.307(a)(6)(v). Private treatment records from October 2014 show a diagnosis of diabetes mellitus, type II. It can be presumed that the Veteran's diabetes mellitus, type II, is due to the in-service herbicide exposure. Therefore, the claim is granted. See 38 C.F.R. §§ 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for testicular cancer, to include as due to herbicide exposure, is remanded. Service connection for testicular cancer is not available on a presumptive basis due to herbicide exposure. See 38 C.F.R. § 3.309(e). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). In April 2015 a private treating physician wrote that the Veteran was diagnosed with testicular cancer in 1976. There is evidence that testicular cancer, including the type the Veteran had, is potentially linked to environmental exposures, including dioxin and other pesticides and herbicides. The physician continued that there is increasing evidence that mechanics who work on jet planes have an increased work of malignancy. Therefore, it was "quite possible" that the Veteran's cancer was the result of his military service. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. Since there has been a diagnosis of testicular cancer and an indication from the April 2015 physician's statement that it may be related to service, the Veteran must be scheduled for an examination before the claim can be decided on the merits. 2. Entitlement to service connection for left hand peripheral neuropathy, to include as due to herbicide exposure or secondary to diabetes mellitus, type II, is remanded. 3. Entitlement to service connection for right hand peripheral neuropathy, to include as due to herbicide exposure or secondary to diabetes mellitus, type II, is remanded. 4. Entitlement to service connection for left foot peripheral neuropathy, to include as due to herbicide exposure or secondary to diabetes mellitus, type II, is remanded. 5. Entitlement to service connection for right foot peripheral neuropathy, to include as due to herbicide exposure or secondary to diabetes mellitus, type II, is remanded. The record does not contain medical records showing a diagnosis of peripheral neuropathy. On remand, the Veteran should be scheduled for a VA examination to determine if there is peripheral neuropathy, and if so its relationship to service and to the service-connected diabetes mellitus, type II. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature, onset, and likely etiology of his testicular cancer. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that testicular cancer was incurred in service or is otherwise related to service, to include exposure to herbicides and other chemicals. The examiner is 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 a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature, onset, and likely etiology of his peripheral neuropathy of the hands and feet. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed peripheral neuropathy was incurred in service or within a year of service, or is otherwise related to service. The examiner must also provide an opinion regarding whether any diagnosed peripheral neuropathy is at least as likely as not (50 percent or greater probability) (1) proximately due to the diabetes mellitus, type II, or (2) has been aggravated beyond its natural progression by diabetes mellitus, type II. The examiner is 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 a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.