Citation Nr: 21042436 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 08-38 038 DATE: July 13, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as due to agent orange exposure, is denied. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for a circulatory disorder, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for a heart disability, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for an eye disorder, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for urinary incontinence, to include as secondary to diabetes mellitus, is denied. Entitlement to service connection for a liver disorder is denied. Entitlement to service connection for a hernia disorder is denied. REMANDED Entitlement to service connection for a psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during active duty service and herbicide exposure in Korea is not established. 2. The Veteran served as a Merchant Marine from June 1968 to January 1969, which is not during a time period where Merchant Marine service has been determined to be active duty for the purposes of all laws administered by VA. 3. Diabetes mellitus was not caused by herbicide exposure or active duty service, nor was it shown within one year after discharge. 4. Hypertension was not caused by active duty service or a service-connected disability, nor was it shown within one year after discharge. 5. A heart disability, circulatory disorder, eye disorder, erectile dysfunction, urinary incontinence, and upper and lower neuropathy are not etiologically related to the Veteran's active duty service, nor are they attributable to a service-connected disability. 6. The Veteran's liver disability is not etiologically related to active duty service. 7. The Veteran's hernia disorder is not etiologically related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for type II diabetes have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for hypertension, a heart disability, circulatory disorder, eye disorder, erectile dysfunction, urinary incontinence, and upper and lower neuropathy, to include as secondary to diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 3. The criteria for service connection for a liver disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a hernia disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in October 1952 to September 1954. The Veteran died in February 2011 and the Appellant is his surviving spouse. She has been substituted for the Veteran for the purpose of this appeal. In June 2018, the Appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. This matter was previously before the Board in July 2018 and was remanded for further development. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Initially on appeal, as well, were issues of service connection for frostbite and tinnitus. However, these claims were granted in an April 2020 decision. As this represents a full grant of the benefits sought, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). 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). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era 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. See 38 C.F.R. § 3.307 (a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the enumerated diseases listed in 38 C.F.R. § 3.309 (e). Diabetes mellitus and early onset peripheral neuropathy, if manifest to a degree of 10 percent or more for an herbicide exposed Veteran, may be presumed service connected. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309 (2019). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. If a veteran had active service 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, the veteran shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange. 38 C.F.R. § 3.307 (a)(6)(iv). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to agent orange exposure. 2. Entitlement to service connection for hypertension, a heart disability, circulatory disorder, eye disorder, erectile dysfunction, urinary incontinence, and upper and lower neuropathy as secondary to diabetes mellitus, type II. In a January 2009 Statement in Support of Claim, the Veteran contended that his diabetes mellitus was caused by being exposed to agent orange during combat service while in the Republic of Vietnam. He reported having served in Vietnam from 1968 to 1969. In a second January 2009 Statement in Support of Claim, the Veteran also contended that he was exposed to herbicides while transporting such on a ship that he served on in the Merchant Marines. He noted that his place of discharge was in Vietnam. Although the Veteran has asserted that he had combat service in Vietnam, military personnel records do not confirm such service. Rather, records show the Veteran had active duty service from October 1952 to September 1954, and further indicate that the Veteran served in Korea during that time. However, the Veteran did not serve in Korea between April 1, 1968 and August 31, 1971, in a unit operated "in or near the Korean DMZ, which herbicides are known to have been applied during that period." Additionally, while the Veteran reported that he served in Vietnam from 1968 to 1969, records show the Veteran participated as a Merchant Marine during that time period, specifically from June 1968 to January 1969. Under 38 C.F.R. § 3.7, active military service for individuals in the American Merchant Marine includes only oceangoing service during periods of armed conflict from December 7, 1941, to August 15, 1945. 38 C.F.R. § 3.7 (x)(14), (15). Specifically, United States Merchant Seamen who served on blockade ships in support of Operation Mulberry during World War II and American Merchant Marines who were in Oceangoing Service during the period of armed conflict from December 7, 1941, through August 15, 1945, are considered to have had active service. In this case, the Veteran was a Merchant Marine beginning in 1968 which is not during the time period where Merchant Marine service has been determined to be active duty for the purposes of all laws administered by VA. Therefore, even if the Veteran traveled to Vietnam as a Merchant Marine during his period of service from 1968 to 1969, this service is not considered active military service for VA purposes. Thus, service connection cannot be established based on service in the Merchant Marines. The Board recognizes a March 2009 VA Formal Finding which determined that the Veteran's service treatment records (STRs) were unavailable due to being destroyed in a fire. However, some of the Veteran's STRs were associated with the record in July 2016, and a reconstruction of his military personnel records were associated with the file in August 2019. Nevertheless, none of these records contain evidence that would support the Veteran's contention of having active duty service in Vietnam. Additionally, there is other evidence of record that shows the Veteran did not have active duty service in Vietnam. For example, in the Veteran's July 2008 Notice of Disagreement, the Veteran reported being exposed to agent orange while serving in Vietnam with a United States Merchant Marine ship. Further, in his VA Form 9, he noted that he served in the Vietnam War conflict from June 1968 to January 1969, which was during the time from which he was in the Merchant Marines. Additionally, the Veteran requested his medical records in June 1993, July 1993, and September 1993; and in each instance, the Veteran listed his dates of active service from October 1952 to September 1954 in the United States Army. Notably, the Veteran did not note any other active duty service. Moreover, in a March 1972 Social Security Administration record, it was noted that the Veteran was a seaman in the merchant marine for two years; and, in a March 1973 neuropsychiatric examination, the Veteran reported working with the Merchant Marines for the past two or three years and being unemployed since 1969. Therefore, based on the above, the Board finds the preponderance of evidence demonstrates that the Veteran served on active military duty in the United States Army from October 1952 to September 1954, and that he had United States Merchant Marine service from June 1968 to January 1969. Thus, the Board concludes the Veteran has not established presumptive exposure to herbicides as he did not have active duty service in Vietnam or Korea during the applicable time periods that would allow for presumed exposure. Further, the evidence does not support a finding of exposure to herbicides on a direct basis as there is no record supporting exposure to herbicides during his active service in Korea, and any exposure during his service in the Merchant Marines would not constitute exposure during active service because his Merchant Marine service is not active service for VA benefits purposes. Consequently, the Board finds the Appellant's claim of service connection for diabetes mellitus, type II, must be denied on a presumptive basis. Likewise, the claims of service connection for hypertension, a heart disability, circulatory disorder, eye disorder, erectile dysfunction, urinary incontinence, and upper and lower neuropathy, as secondary to diabetes mellitus, must be denied as a matter of law since diabetes mellitus is not service-connected. See 38 C.F.R. § 3.310 (a). In addition, neither the Appellant nor the Veteran has asserted that either of the conditions was caused by service-connected frostbite or tinnitus, nor does the evidence show the same. Thus, secondary service connection is not warranted for hypertension, a heart disability, circulatory disorder, eye disorder, erectile dysfunction, urinary incontinence, and upper and lower neuropathy as secondary to these service-connected conditions. The Board also finds service connection is not warranted on a direct basis for diabetes mellitus Type II, hypertension, a circulatory disorder, a heart disability, erectile dysfunction, bilateral upper extremity disability and a bilateral lower extremity disability. Initially, there is no evidence of an in service event, injury or disease for any of these conditions in the available STRs for the Veteran's only recognized period of service from 1952 to 1954. Moreover, neither the Veteran or the appellant have asserted that these conditions had their onset during this period. Rather, they have consistently asserted that they began either as secondary to another nonservice-connected condition or had their onset during his service in the Merchant Marines, which is not active service for VA purposes. See 38 C.F.R. § 3.7. For example, in a March 1988 VA treatment record, the Veteran complained of angina for the past four years, and reported frequent episodes of pain in the left anterior chest; however, it was noted that he had no history of myocardial infarction, heart murmur, or diabetes. A private treatment record shows a diagnosis of coronary artery disease in August 1988; and, in a January 2009 Statement in Support of Claim, the Veteran reported that he was diagnosed with coronary artery disease while in Vietnam. While these dates may contrast, even if his heart condition may have developed in Vietnam during his time with the Merchant Marines, as noted, this service does not qualify for active duty service, and thus, cannot serve as a basis for an award of VA benefits. See 38 C.F.R. § 3.7. Similarly, in an October 1982 treatment record, the Veteran reported he was told he had labile hypertension since 1969, but that he was never put on medication for it. Notably, this would have also been during the period the Veteran was in the Merchant Marines, which is not considered active duty service. The Board also notes that in a December 2019 medical opinion, the examiner found that the Veteran's urinary incontinence was secondary to benign prostate hyperplasia, for which the Veteran is not service connected. Likewise, treatment records show the Veteran's upper and lower neuropathy have been attributed to his diabetes mellitus, for which he is not service connected. It was also noted that erectile dysfunction was first found in October 2003. With regard to service connection for an eye disorder and circulatory disorder, the December 2019 examiner diagnosed the Veteran with glaucoma and found that this condition was not related to diabetes mellitus. In addition, STRs are absent for any complaints, treatment, or diagnosis for an eye disorder or circulatory disorder, and the Veteran's separation examination showed the Veteran had 20/20 vision bilaterally. Aside from a lack of evidence of in service incurrence of these conditions, the record also fails to contain a nexus between any of these conditions and the Veteran's active service in Korea. For the foregoing reasons, the Board finds service connection is not warranted for diabetes mellitus, hypertension, a heart disability, circulatory disorder, eye disorder, erectile dysfunction, urinary incontinence, and upper and lower neuropathy. Accordingly, the claims are denied. 3. Entitlement to service connection for a liver disorder. 4. Entitlement to service connection for a hernia disability. The Veteran seeks service connection for a liver disorder and a hernia disability. After reviewing the evidence, the Board finds that service connection is not warranted as these conditions are not related to the Veteran's active duty service. STRs are silent for any complaints, treatment, or diagnosis for a hernia or liver condition; and, the evidence shows that these conditions began during the Veteran's time period with the Merchant Marines, which, as discussed above, is not subject to VA compensation. See 38 C.F.R. § 3.7. With regard to the Veteran's hernia, the Veteran has reported that this condition originated during his time with the Merchant Marines. For instance, translated documents associated with the record in July 2018 include a September 2007 Statement in Support of Claim where the Veteran reported having an accident on a ship as a Merchant Marine in Vietnam, and that he got a hernia as a result. Additionally, in a January 2009 Statement in Support of Claim, the Veteran reported that he was diagnosed with coronary artery disease, hepatomegaly, and bilateral inguinal herniorrhaphy while in Vietnam, and was transported to San Francisco, California marine hospital where he was operated on for this condition. Treatment records confirm the Veteran's reported statements as a March 1969 medical record shows the Veteran entered the hospital with right inguinal hernia in December 1968. Moreover, a June 1988 VA examination noted the Veteran had five hernia surgeries, beginning in 1968, 1969, 1970 (noted as double), and 1980. Consistent with this finding is the Veteran's April 2007 VA hernia examination which noted the Veteran had a right inguinal hernia in 1968 with a recurrence in 1969 and additional recurrences some years later. Concerning the Veteran's liver disorder, in a June 1988 treatment record, the Veteran indicated that while admitted for a repeat operation on his right inguinal hernia in 1969, he was told of an abnormal liver and a liver biopsy was done. Additionally, a March 1969 treatment record noted the same as it showed the Veteran was admitted to a hospital in San Francisco, California and had two procedures, including a right inguinal hernioplasty in February 1969, and a liver biopsy in March 1969. Consistent with these findings is the Veteran's January 2009 Statement in Support of Claim referenced above, where the Veteran reported being transported to a hospital in San Francisco, California after being diagnosed with hepatomegaly and bilateral inguinal herniorrhaphy while in Vietnam. Moreover, a separate treatment record from 1969 shows the Veteran had "inflammation of liver," and it was an incidental finding for bilateral inguinal hernia repairs. Given the above, the Board finds the preponderance of evidence is against the claims as the evidence shows the Veteran's hernia and liver disorder were not related to his active duty service in Korea; but rather, occurred during his service as a Merchant Marine which does not qualify for active duty service. See 38 C.F.R. § 3.7. Accordingly, the claims of service connection for a liver disorder and a hernia disorder are denied. REASONS FOR REMAND Entitlement to service connection for a psychiatric disorder is remanded. Pursuant to the Board's prior remand, a medical opinion was obtained in March 2020 to determine the etiology of the Veteran's asserted psychiatric disorder. In the opinion, the examiner found no link between the Veteran's active duty service and his previous documented neuropsychiatric symptomatology. In doing so, the examiner specifically noted that the Veteran's neuropsychiatric symptomatology was related to alcohol abuse, which was due to the Veteran's willful misconduct; thus, it was not related to service or other service-connected medical conditions. The Board notes, however, that the examiner did not consider the Veteran's diagnosed PTSD. In this regard, the Board notes that July 2018 translated documents include a psychiatric examination from June 2003 where the Veteran was diagnosed with PTSD. In the examination, the Veteran reported having anger, poor impulse control, and nightmares. He reported that he accidentally hits his wife during the night. In addition, there was an incomplete translation from the examination that was translated as "what happened to him in Korea;" and additional translations that noted the Veteran reported that he sees corpses and dreams of blood slaughter. The Board also notes that STRs include a notation from February 1953 that indicates the Veteran "feels nervous." Given that the examiner did not consider all the relevant evidence of record prior to rendering an opinion, the Board finds the opinion is inadequate and remand is warranted. The matter is REMANDED for the following action: 1. Obtain a medical opinion to determine the nature and etiology of the Veteran's asserted psychiatric disorder. The Veteran's claims file must be provided to the examiner for review. After review of the record the examiner must do the following: a) First identify all psychiatric disorders found to be present. b) If PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not related to a verified stressor. c) If any psychiatric disorder other than PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disorder was incurred in service or is otherwise related to any injury, disease, or event incurred in service or was proximately caused or aggravated by any service-connected disability. 1. In rendering these opinions the examiner should address the PTSD diagnosis in the July 2018 translated documents from a psychiatric examination in June 2003 where the Veteran was diagnosed with PTSD, and the notation from February 1953 service treatment records that indicate that the Veteran "feels nervous." The examiner is asked to provide a complete rationale for any opinion offered, including discussion of the facts of this case and any medical studies or literature relied upon. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. 2. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.