Citation Nr: 21039790 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 20-20 502 DATE: July 1, 2021 ORDER Service connection for a heart condition, to include coronary artery disease (CAD) and ischemic heart disease (IHD) is granted. Service connection for diabetes mellitus type II is granted. Service connection for prostate cancer is granted. Service connection for a kidney condition, to include as secondary to diabetes mellitus type II, is granted. Service connection for right upper extremity diabetic peripheral neuropathy, as secondary to diabetes mellitus type II, is granted. Service connection for left upper extremity diabetic peripheral neuropathy, as secondary to diabetes mellitus type II, is granted. Service connection for right lower extremity diabetic peripheral neuropathy, as secondary to diabetes mellitus type II, is granted. Service connection for left lower extremity diabetic peripheral neuropathy, as secondary to diabetes mellitus type II, is granted. Service connection for tinnitus is granted. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for a skin condition is remanded. Service connection for a respiratory condition, to include as due to diabetes mellitus type II, is remanded. Service connection for a throat condition is remanded. FINDINGS OF FACT 1. The Veteran has been diagnosed with CAD and IHD. 2. The Veteran has been diagnosed with diabetes mellitus type II. 3. The Veteran has been diagnosed with prostate cancer. 4. At his January 2021 Board hearing, the Veteran provided competent and credible testimony that while serving at Korat Air Force Base (AFB) in Thailand, his job required him to service the generators that powered the lights on the perimeter. He also provided photographs showing that his barracks were close to the perimeter and that he frequently had to walk around the perimeter to work on the generators. The Board finds that this evidence establishes herbicide agent exposure (on a non-precedential, facts-found basis). 5. The Veteran's kidney condition is reasonably shown to be related to or caused by his now service-connected diabetes mellitus type II. 6. The Veteran's right upper extremity diabetic peripheral neuropathy is reasonably shown to be related to or caused by his now service-connected diabetes mellitus type II. 7. The Veteran's left upper extremity diabetic peripheral neuropathy is reasonably shown to be related to or caused by his now service-connected diabetes mellitus type II. 8. The Veteran's right lower extremity diabetic peripheral neuropathy is reasonably shown to be related to or caused by his now service-connected diabetes mellitus type II. 9. The Veteran's left lower extremity diabetic peripheral neuropathy is reasonably shown to be related to or caused by his now service-connected diabetes mellitus type II. 10. At his January 2021 Board hearing, the Veteran provided competent and credible testimony that his tinnitus is reasonably shown to be related to or caused by his exposure to acoustic trauma in service. CONCLUSIONS OF LAW 1. The criteria have been met for service connection (on a presumptive basis) for a heart condition, to include CAD and IHD. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria have been met for service connection (on a presumptive basis) for diabetes mellitus type II. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria have been met for service connection (on a presumptive basis) for prostate cancer. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria have been met for service connection for a kidney condition. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria have been met for service connection for right upper extremity diabetic peripheral neuropathy. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria have been met for service connection for left upper extremity diabetic peripheral neuropathy. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The criteria have been met for service connection for right lower extremity diabetic peripheral neuropathy. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 8. The criteria have been met for service connection for left lower extremity diabetic peripheral neuropathy. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 9. The criteria have been met for service connection for tinnitus. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to November 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In September 2018, the Veteran disagreed with the September 2018 rating decision. In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. The claim is now before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1101, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, are presumed to be serviced connected if they manifest to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. §§ 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Service connection for a heart condition, to include CAD and IHD, is granted 2. Service connection for diabetes mellitus type II is granted. 3. Service connection for prostate cancer is granted. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Legal Criteria A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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 U.S.C. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. §§ 1113, 1116 and 38 C.F.R. §§ 3.307(d), 3.309(e). Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2016). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994). See also 61 Fed. Reg. 41442 -41449, and 61 Fed. Reg. 57586 -57589 (1996). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. VA has determined that there was significant use of herbicides 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 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 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 those air 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 military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found (that is, direct as opposed to presumptive) basis. However, that applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). Factual Background In an August 2018 VA examination report, the Veteran was diagnosed with a myocardial infarction, coronary artery disease, congestive heart failure, and coronary artery bypass grat. The VA examiner noted that the Veteran's heart conditions qualified with the generally accepted medical definition of ischemic heart disease (IHD). Additionally, the Veteran was diagnosed with diabetes mellitus type II, and prostate cancer. During his January 2021 Board hearing, the Veteran provided competent and credible testimony that while serving at Korat Air Force Base (AFB) in Thailand, his job required him to service the generators that powered the lights on the perimeter. He also provided photographs showing that his barracks were close to the perimeter, and that he frequently had to walk around the perimeter to work on the generators. The Board finds that this evidence establishes herbicide agent exposure (on a non-precedential, facts-found basis). Analysis Although a causal relationship has not been demonstrated through a foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a "valid medical opinion" is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds the reports by the Veteran of frequently being along the perimeter of the Korat AFB to be competent, credible, and accurate evidence establishing exposure to herbicide agents. 38 C.F.R. §§ 3.303. Based on the above analysis, the Board determines that at the very least, the evidence is evenly balanced for and against ("in relative equipoise") as to whether the Veteran was exposed to herbicide agents during active service. Because IHD, diabetes mellitus type II, and prostate cancer are presumptive conditions associated with herbicide exposure, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for IHD, diabetes mellitus type II, and prostate cancer is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. Service connection for a kidney condition, to include as secondary to diabetes mellitus type II, is granted. 5. Service connection for right upper extremity diabetic peripheral neuropathy is granted. 6. Service connection for left upper extremity diabetic peripheral neuropathy is granted. 7. Service connection for right lower extremity diabetic peripheral neuropathy is granted. 8. Service connection for left lower extremity diabetic peripheral neuropathy is granted. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Factual Background In an August 2018 VA examination report, the examiner noted that the Veteran had complications related to his diabetes mellitus type II. These complications included diabetic peripheral neuropathy, diabetic nephropathy or renal dysfunction caused by diabetes mellitus, and diabetic retinopathy. In a February 2021 opinion, the Veteran's private physician wrote that after reviewing the Veteran's records, the Veteran was diagnosed with advanced stage IV chronic kidney disease. The examiner opined that it was his professional opinion that it was at least as likely as not that the Veteran's exposure to agent orange "propelled him into his chronic kidney disease." The rationale was that herbicide exposure was linked to diabetes and part of the Veteran's kidney disease was linked to diabetic nephropathy. Analysis Concerning the Veteran's kidney condition, based on the above evidence, the Board finds that service connection for a kidney condition, as secondary to diabetes mellitus type II is warranted. The Veteran is now service connected for his diabetes mellitus type II. In the August 2018 VA examination report, the examiner noted that diabetic nephropathy or renal dysfunction were complications related to the Veteran's diabetes. Additionally, in the February 2021 opinion, the Veteran's private physician provided a positive nexus opinion connecting the Veteran's kidney condition to his service-connected diabetes mellitus type II. Accordingly, the Board finds that it is at least as likely as not that the kidney condition was caused or aggravated by his now service-connected diabetes mellitus type II. The criteria for service connection have been met, and the claim for a kidney condition is granted. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. Concerning the Veteran's bilateral peripheral neuropathy of the upper and lower extremities, the Board finds that the August 2018 VA examination report, noting that diabetic peripheral neuropathy was a complication related to the Veteran's diabetes mellitus type II, to be competent and credible evidence establishing secondary service connection. See Davidson v. Shinseki, 581 F.3d at 1316 (absence of a "valid medical opinion" is not an absolute bar to service connection); 38 C.F.R. §§ 3.303, 3.310. Accordingly, at the very least, the evidence is evenly balanced for and against ("in relative equipoise") a finding that the Veteran's right upper extremity, left upper extremity, right lower extremity, and left lower extremity diabetic peripheral neuropathy were caused or aggravated by his now service-connected diabetes mellitus type II. The criteria for service connection have been met, and the claims for bilateral upper and lower diabetic peripheral neuropathy are granted. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 9. Service connection for tinnitus is granted. Factual Background During his January 2021 hearing, the Veteran provided competent and credible testimony that a month before separation, there was a "red alert" on the tarmac while he was delivering a piece of equipment. The Veteran stated that he was not wearing ear protection when the alert went off and that he could not hear for a few hours after the alert was cancelled. He testified that his hearing never returned to normal after this and that he started hearing ringing in his ear. He noted that at first it was intermittent, but now he experiences it more frequently. The Veteran testified that his tinnitus had been ongoing since active service. Analysis The Board notes that tinnitus is a disability for which a lay person may offer a competent diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran is competent to report what he has experienced. Therefore, his statements that his tinnitus began during active service, and has continued since then, are assigned significant probative weight. Additionally, the Board finds that the July 2018 VA Audio examination only addressed whether the Veteran's diagnosed tinnitus was related to his bilateral hearing loss. It did not provide an opinion as to whether it was related to acoustic trauma during active service. Because of this, the July 2018 opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although a causal relationship for the Veteran's tinnitus has not been demonstrated through the foregoing VA opinion, the Board finds the reports by the Veteran, of tinnitus beginning during active service because of acoustic trauma and continuing to the present, to be competent and credible evidence of continuing symptoms since active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Based on the above analysis and the Veteran's statements, the Board determines that it is at least as likely as not that the Veteran's current tinnitus is related to his acoustic trauma during active service. Accordingly, resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.385. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. During his January 2021 hearing, the Veteran provided competent and credible testimony that a month before separation, there was a "red alert" on the tarmac while he was delivering a piece of equipment. The Veteran stated that he was not wearing ear protection when the alert went off and that he could not hear for a few hours after the alert was cancelled. He testified that his hearing never returned to normal after this. The Veteran stated that the discharge medical staff told him that they would look at his ears only if he signed up for another year of service. The Veteran testified that he did not want to get "shipped" back to Vietnam, so he refused and took his discharge. He noted that when he finally started to hear again, his hearing did not come back as well as it used to. The Board finds that a remand is necessary for a new audio examination that takes into consideration the Veteran's January 2021 testimony of the "red alert." (Continued on next page) 2. Service connection for a skin condition is remanded. 3. Service connection for a respiratory condition is remanded. 4. Service connection for a throat condition is remanded. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Concerning the Veteran's claimed skin condition, in an August 2018 VA environmental agents registry examination, the Veteran noted that he had difficulties with rashes, dry skin, itching, and that his skin changed color. Concerning his claimed throat and respiratory conditions, in that same examination, the Veteran reported that he had problems with phlegm in his throat and coughing. He noted that he had recurrent sore throats, nasal congestion, hoarseness of voice, and a runny nose. The Veteran also reported that he had problems breathing. In an August 2018 VA throat examination report, the Veteran was diagnosed with a chronic sore throat. The examiner noted that the Veteran had a larynx or pharynx condition. The examiner further noted that on the Veteran's October 1967 Report of Medical History for separation, he reported that occasionally had a sore throat. However, despite this, the VA examiner wrote that there was no mention of any "sore throat" issues from October 1966 to October 1967 when the Veteran had his separation examination. The Board finds that the August 2018 VA throat VA opinion is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). The VA examiner acknowledged that the Veteran reported "sore throats" on his Report of Medical History for separation, but then went on to say that there was no mention of any "sore throat" issues during service. This is contradictory. In his January 2021 hearing, the Veteran testified that his diabetes had led him to become overweight and that his weight pressed down on his diaphragm. He stated that he believed that his respiratory condition was the result of his diabetes mellitus type II-caused weight gain. The Veteran also testified that he had chronic sinus drainage, a sore throat, and had difficulty swallowing. Because of this, new examinations are necessary to determine whether the Veteran has a diagnosed skin condition, respiratory condition, and a throat condition, and if so, whether they are related to active service. The matters are REMANDED for the following actions: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Schedule the Veteran for a VA examination to determine the nature and cause of any diagnosed bilateral hearing loss. The examiner should conduct all necessary testing to include auditory threshold and Maryland CNC testing and determine whether the Veteran has a present diagnosis of hearing loss. If hearing loss is found, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed bilateral hearing loss is causally related to active service or represent the initial manifestations of any current diagnosis. In reaching any conclusion, the examiner should consider the Veteran's January 2021 testimony where he noted that he was exposed to acoustic trauma during a "red alert" without ear protection, shortly before he left active service, and that after, his hearing never returned to normal. 4. Schedule the Veteran for VA examinations to determine the nature and cause of any diagnosed skin condition, respiratory condition, or throat condition. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case, to include the Veteran's January 2021 hearing testimony. A notation to the effect that this record review took place should be included in the report. After the above has been completed, the examiner should address whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed skin and throat conditions are causally related to active service or represent the initial manifestations of his current diagnoses. Concerning any diagnosed respiratory condition, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) causally related to active service, represents the initial manifestations of his current diagnoses, OR was proximately CAUSED BY or AGGRAVATED BY his now service-connected diabetes mellitus type II. (Continued on next page) 5. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.