Citation Nr: 21032416 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-44 993 DATE: May 27, 2021 ORDER Entitlement to service connection for Diabetes Mellitus, Type II is granted. Entitlement to service connection for coronary artery disease is granted. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran served in Korea from June 1969 to July 1970 and the evidence is at least in equipoise as to whether he served in or near the Korean Demilitarized Zone (DMZ); resolving reasonable doubt in his favor, he is presumed to have been exposed to herbicide agents during his active military service. 2. Medical evidence shows current diagnoses of Diabetes Mellitus, Type II, and coronary artery disease. CONCLUSIONS OF LAW 1. The criteria for service connection for Diabetes Mellitus, Type II have been met. 38 U.S.C. §§ 1110, 1116B; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 2. The criteria for service connection for coronary artery disease have been met. 38 U.S.C. §§ 1110, 1116B; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to December 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). A virtual hearing was held before the undersigned Veteran's Law Judge in September 2020; a transcript has been associated with the file. While the Veteran originally claimed entitlement to service connection for "racing heart," "a claimant's identification of the benefit sought does not require any technical precision." Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009); see also Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). In light of the Veteran's diagnosis of coronary artery disease during the appeal period, the Board has recharacterized the issue as reflected on the title page. Service Connection 1. Entitlement to service connection for Diabetes Mellitus, Type II. 2. Entitlement to service connection for coronary artery disease. In September 2016, VA denied service connection for diabetes mellitus, type II (diabetes), coronary artery disease (CAD), and hypertension. Thereafter, the Veteran disagreed and perfected this appeal. The Veteran contends that the claimed disorders are due to in-service exposure to herbicide agents. If a claimant was exposed to an herbicide agent during active military, naval, or air service, certain conditions to include type 2 diabetes and ischemic heart disease shall be presumed to be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Ischemic heart disease includes atherosclerotic cardiovascular disease including CAD. Id. Applicable regulations state that a Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). Recent legislation has added section 1116B to 38 U.S.C. providing for a presumption of herbicide exposure for certain Veterans who served in Korea, effective January 1, 2020. See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23 (2019) (codified at 38 U.S.C. § 1116B). Specifically, the legislation provides that the presumption of exposure will apply to a Veteran "who, during active military, naval, or air service, served in or near the Korean [DMZ], during the period beginning on September 1, 1967, and ending on August 31, 1971." Service personnel records indicate that the Veteran served in Korea from June 1969 to July 1970 and was assigned to "6171 Cmbt Spt Sq." They also indicate that he was stationed at Kwang Ju Air Force Base but that he had had a period of training while in Korea in about February 1970. His military occupational specialty included security police. The Veteran's unit is not one of the units on the list provided by the DoD which is currently known to have operated near the DMZ during the period that herbicides were applied. A response received from the Joint Services Records Research Center (JSRRC) indicate that in the Veteran's unit was stationed at Kwang-Ju Air Force Base in the Republic of Korea. From July 1969 to December 1969 and January 1970 to June 1970 there was no documentation of the Veteran nor his unit being exposed to Agent Orange. The history also did not include notation of unit personnel performing training on or near the DMZ. The VA did not complete a Formal Finding on this matter. Notwithstanding, the Veteran has provided lay testimony that he served in or near the DMZ. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). In a February 2016 statement in support of his claim, the Veteran reported that he was sent to Korea in June or July of 1969 as a Security Policeman. His duties included perimeter tower duty, security for munitions storage, main gate patrol, and town patrol in downtown Kwang Ju. The Veteran asserted he spent most of his deployment outdoors and exposed to the elements. He further asserts he was exposed to Agent Orange during that time. The Veteran volunteered to escort "F-4 Phantoms" to Vietnam and was then required to attend an "AZR Combat Preparedness Training along the DMZ, north of Seoul." He stated this specialized training was about 4 weeks long. The Veteran's Military Personnel Records support the Veteran's assertions regarding his specialized training. In a commendable March 1970 "airman performance report" the Veteran's supervising officer from January 1969 to February 1970 stated, "[the Veteran] has attended the Combat Preparedness Course in Korea and satisfactorily attained the skill level of 81150...." The report also stated that the Veteran's "off duty conduct, character, and personal appearance is above reproach" clearly indicating his supervising officer found the Veteran to be trustworthy in both his military and off duty roles. The Veteran's military record confirms his deployment to Korea in June 1969 and his participation in the Combat Preparedness Course in about February 1970. The Veteran also asserts in his April 2017 notice of disagreement that he was exposed to herbicides when the "vehicles carrying the herbicide would spray the perimeter fence and it would linger in the air like a mist or fog." The Veteran stated he was assigned to security on the perimeter where he was stationed with additional duties at the DMZ during his training. While on his assigned base in Kwang Ju, he asserts he was exposed to herbicides sprayed around the perimeter. He reports that while in training near the DMZ, herbicides were sprayed around the perimeter as well. In May 2017, the Veteran submitted a letter from a fellow servicemember who was stationed with the Veteran and also attended the Combat Preparedness Training. In the letter, the servicemember stated the pair were stationed together in about 1969 or 1970 when they were "sent to the DMZ" to attend "AZR school." There, he noticed all of the foliage and ditches were sprayed in an effort to keep the land barren for security reasons. In regard to their base in Kwang Ju, the fellow servicemember stated herbicides were "sprayed all around for a better field of vision, when we were walking in bunkers, towers, or outer perimeter SAT teams." The Veteran also submitted his own statement in October 2019 where he reiterated that he volunteered to escort the "F-4 Phantoms" that were being deployed to Vietnam. This resulted in his participation in the Combat Preparedness Training course "near the DMZ." The Veteran recounts that during the training near the DMZ, the Korean military would defoliate the area prior to and during their "maneuvers" and he was directly in contact with those herbicides. After the training was completed, the Veteran's mission to Vietnam was canceled and he returned to Kwang Ju Air Force Base. During the September 2020 virtual hearing the Veteran, under oath, again stated that he was exposed to herbicide agents while in training near the DMZ and additionally at the Kwang Ju Air Force Base. He stated he saw herbicides being sprayed near the security tower in was stationed in and near his barracks. He stated the foliage being sprayed would "green up and then die one to two days later." During the training course he had to crawl on "hands and knees" in the area where he witnessed them spray the defoliant. On review, the record contains both positive and negative evidence. As above, per the response from JSRRC, official documentation does not show that the Veteran's unit used, stored, sprayed, or transported herbicides nor does it document anyone from that unit participated in specialized training near the DMZ. However, the Veteran's service records, along with his lay statements and the statement made by his fellow servicemember, support finding that he served in or near the DMZ during service. That is, he was stationed near the DMZ during his specialized training period in about February 1970. Further, he is competent to report his movements during service. The Veteran's statements that he participated in Combat Preparedness Training near the DMZ in February 1970 is arguably consistent with his military personnel records during his service in Korea. The Board finds no reason to doubt the credibility of the Veteran's statements in this regard. On review, the evidence is at least in equipoise as to whether the Veteran served in or near the DMZ during the relevant period. Resolving reasonable doubt in his favor, in-service exposure to herbicide agents is presumed. 38 C.F.R. § 3.102. The Veteran's VA outpatient records indicate an ongoing diagnosis of CAD during the appeal period. See, e.g., October 2016 and March 2017 VA treatment records. Additionally, the Veteran's diabetes was first noted in the Veteran's file in March 2002 but shows continual treatment for this disability since that time. This is competent evidence of current disabilities and the record does not contain probative evidence to the contrary. Given the foregoing, presumptive service connection for diabetes mellitus, type II and CAD is warranted. See 38 C.F.R. § 3.309(e). The claims are granted. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Veteran is seeking service connection for hypertension. He asserts that his current hypertension is a result of exposure to herbicides while in service in Korea. No VA examination has been provided for this issue. As discussed above, the Veteran is presumed to have been exposed to herbicide agents during his service in Korea near the DMZ. Although the Secretary of VA has not yet provided presumptive service connection for hypertension as related to exposure to herbicide agents, the National Academy of Sciences (NAS) Institute of Medicine has upgraded their findings as to an association between exposure to herbicide agents and hypertension. In the Veterans and Agent Orange: Update 2010, the NAS found that there is "limited or suggestive" evidence of an association. However, it is Update 2018, the NAS moved hypertension to the category of "sufficient" evidence of an association. The "sufficient" category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between exposure to herbicide agents and hypertension. As such, there is an indication that the Veteran's hypertension may be causally related to his potential in-service exposure to herbicide agents. The NAS is not sufficient evidence to establish that the Veteran's hypertension is related to his presumed exposure to herbicide agents during service as it is merely treatise evidence. Therefore, there remains a question as to the nexus relationship between the Veteran's hypertension and his presumed exposure to herbicide agents that must be answered by a qualified medical expert. The Board is not permitted to answer such medical questions. See 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). Hence, the Board finds that the duty to assist is triggered and a remand for a VA examination is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his hypertension. The examiner must review the entire claims file and answer the following question: Is the Veteran's hypertension at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that hypertension is not on the list of diseases that are presumptively associated with exposure to herbicide agents. ' LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.