Citation Nr: 21042656 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-27 876 DATE: July 13, 2021 ORDER Entitlement to service connection for diabetes mellitus type II (diabetes), to include as due to exposure to herbicide agents, is granted. Entitlement to bilateral lower extremity neuropathy, to include as due to diabetes, is granted. REMANDED Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT 1. The Veteran's diabetes is due to his exposure to herbicide agents while in service. 2. The Veteran's bilateral lower extremity neuropathy is secondary to his now service-connected diabetes. CONCLUSION OF LAW 1. The criteria for service connection for diabetes are met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for bilateral lower extremity neuropathy are met. 38 U.S.C. § § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1971 to July 1976. The Veteran had a hearing before the undersigned Veterans Law Judge in March 2021. A transcript has been associated with the file. These matters are on appeal from an April 2017 rating decision by a Department of Veterans Affairs regional office. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A veteran who suffers from certain diseases, such as diabetes and prostate cancer, may be entitled to a rebuttable presumption of service connection if the veteran was exposed to an herbicide agent, such as Agent Orange, during active service. 38 C.F.R. § 3.309 (e). VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it 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. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including Takhli Royal Thai Air Force Base (RTAFB). C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran who served on an air base in Thailand and provided perimeter security. For the criteria for presumptive service connection to be met for most of the diseases listed at 38 C.F.R. § 3.309 (e), including diabetes and prostate cancer, that disease shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). In November 2019, the Veteran said his barracks were next to the perimeter when he served in Thailand, he was transported daily by the perimeter and in October 2019, said he worked on the flight line where herbicide agents were spilled. In his March 2021 hearing, the Veteran reported while in Thailand, he was exposed to herbicide agents. At Korat Air Force Base (AFB), he was housed a few hundred feet from the fence and he was close to military police, security people, and the fence line. The Veteran also was picked up for transport to his duty and the pickup was on the fence so he would stand at the fence awaiting pick up. The Veteran also said he was an avid cyclist and used it around the perimeter on a daily basis while in Nakhon Phanom. As an aviation technician, the Veteran worked on the flight line which was next to the perimeter. The Veteran has been diagnosed with diabetes and bilateral lower extremity peripheral neuropathy. The Veteran's service treatment records (STRs) do not indicate he suffered from diabetes while in service. Thus, while service connection on a direct basis cannot be granted, the Board will still consider whether the Veteran is entitled to service connection on a secondary basis. A formal finding was made in March 2017 in which the Veteran was found to have service in Thailand. However, the Veteran did not have service as a patrolman, security dog handler, member of security police, and was not otherwise near the perimeter for daily work duties and therefore, herbicide exposure was not conceded. While the Veteran did not work those specific jobs, the Board finds the evidence shows he was exposed to herbicide agents as he worked on the flight line near the perimeter, was transported daily by the perimeter, was housed by the perimeter, and rode his bike around the perimeter. Therefore, service connection for diabetes will be granted on a presumptive basis. The February 2017 examiner noted a complication of the Veteran's diabetes was his peripheral neuropathy and was directly related to his diabetes. Thus, the Veteran's bilateral lower extremity neuropathy will be granted as proximately due to his diabetes. REASONS FOR REMAND The Board regrets the delay, but finds a remand is warranted in the Veteran's claim to service connection for hypertension. The Veteran has been diagnosed with hypertension. His STRs do not mention ongoing problems with hypertension or high blood pressure. While the current 38 C.F.R. § 3.309 (e) regulation does not provide that hypertension is a presumptive disability directly associated with herbicide agent exposure, the Board takes notice of the National Academy of Medicine's "Veterans and Agent Orange: Update 11 (2018)", which now states there is "sufficient evidence of an association" between exposure to herbicides and hypertension, which is a category change from the previous Update 2014 determination that there was a "limited or suggestive evidence of an association" between exposure to herbicides and hypertension. See Nat'l Acad. of Sci., Eng., and Med., Veterans & Agent Orange: Update 11 (2018) at 7 (November 15, 2018). That 2018 National Academy of Medicine report explained that "sufficient evidence of an association" means epidemiologic evidence is sufficient to conclude that there is a positive association. That is, a positive association has been observed between exposure to herbicides and the outcome in studies in which chance, bias, and confounding could be ruled out with reasonable confidence. Id. As such, the Board will remand the hypertension claim for an addendum VA examination and opinion regarding the hypertension in the context of the Veteran's diagnosed and service-connected hypertensive heart disease, with notice of the National Academy of Medicine's 2018 report and to determine whether his hypertension is related to any of his service-connected disabilities. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent evidence regarding the conditions at issue in order to expedite the claim. 2. Schedule the Veteran for an appropriate VA examination for his hypertension. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should opine as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability was incurred during the Veteran's service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability is proximately due to any of his service-connected disabilities. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability was aggravated by any of his service-connected disabilities. NOTE: This does not mean there has to be a permanent worsening of the non-service-connected disability. The examiner should offer a rationale for any opinion offered and specifically address the Veteran's contentions and statements about his symptoms while in service. 4. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefits sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.