Citation Nr: 21049656 Decision Date: 08/12/21 Archive Date: 08/12/21 DOCKET NO. 18-54 396 DATE: August 12, 2021 ORDER Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is granted. Entitlement to service connection for hypertension, as secondary to diabetes mellitus, is granted. Entitlement to service connection for right leg below the knee amputation, as secondary to diabetes mellitus, is granted. Entitlement to service connection for end stage nephropathy, as secondary to diabetes mellitus, is granted. Entitlement to service connection for a peripheral vascular disease of the left lower extremity, as secondary to diabetes mellitus, is granted. Entitlement to service connection for a peripheral vascular disease of the right lower extremity, as secondary to diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity, as secondary to diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity, as secondary to diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to diabetes mellitus, is granted. Entitlement to right knee scars, as secondary to right leg below the knee amputation, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, as secondary to diabetes mellitus, is remanded. Entitlement to service connection for skin cancer, as secondary to diabetes mellitus, is remanded. Entitlement to service connection for anemia, as secondary to diabetes mellitus, is remanded. Entitlement to service connection for hyperlipidemia, as secondary to diabetes mellitus, is remanded. Entitlement to service connection for cataracts, as secondary to diabetes mellitus, is remanded. Entitlement to service connection for retinopathy, as secondary to diabetes mellitus, is remanded. Entitlement to special monthly compensation based on aid and attendance/housebound is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his diabetes mellitus began during service. 2. Resolving reasonable doubt in the Veteran's favor, his hypertension, right leg below the knee amputation, bilateral lower extremity peripheral vascular disease, and bilateral upper and lower extremity peripheral neuropathy are proximately due to diabetes mellitus. 3. Resolving reasonable doubt in the Veteran's favor, his end stage nephropathy is aggravated beyond its natural progression by his diabetes mellitus. 4. Resolving reasonable doubt in the Veteran's favor, his right knee scars are proximately due to his right below the knee amputation. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for right leg below the knee amputation as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for end stage nephropathy as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for peripheral vascular disease of the left lower extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for peripheral vascular disease of the right lower extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for peripheral neuropathy of the right upper extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 9. The criteria for service connection for peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 10. The criteria for service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 11. The criteria for service connection for peripheral neuropathy of the right knee scars, as secondary to right leg below the knee amputation, as secondary to diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1956 to January 1970, with additional service in the Army Reserves from January 1970 until his retirement in February 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The claims were previously remanded by the Board in April 2020. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Pursuant to 38 C.F.R. § 3.309(e), if a Veteran was exposed to an herbicide agent (including Agent Orange) during active service, certain enumerated diseases, including diabetes, shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. Where the evidence does not warrant presumptive service connection, a Veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041(Fed. Cir. 1994). A claimant is permitted to demonstrate in-service incurrence or aggravation through actual evidence of Agent Orange exposure, and a claimant may establish a nexus to service by actual evidence of a link between a present disability and the in-service event. See Combee,34 F.3d at 1043-44;38C.F.R. §3.303(d) VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure The Veteran contends that he is entitled to service connection for diabetes mellitus, caused by exposure to herbicides during service. At the outset, the Board must provide the procedural history regarding attempts to obtain additional information for the Veteran's claim of service connection for diabetes. The Veteran provided statements in April 2017 and April 2018, and testified at the February 2020 Board hearing, that he believes he was exposed to herbicides during service. He explained that while stationed in Okinawa, Japan from 1968 to 1969, his unit was responsible for resupplying units stationed in Vietnam. The Veteran stated that each day, a member of his unit accompanied shipments to Da Nang, Vietnam, and that he made the trip himself on several occasions. He stated that the time he spent in Da Nang during these trips varied from being on the ground for a short while, to spending hours there prior to returning to Okinawa. At the Board hearing, the Veteran's representative explained that due to the routine nature of these trips, there is insufficient paperwork documenting that the Veteran personally escorted the supplies to Vietnam. However, the Veteran recalled that there were papers he carried that were stamped, noting Da Nang as a combat zone, which he then submitted to the finance office. The claims file contains an embarkation slip showing the Veteran served in Okinawa from February 1968 through April 1969. In a letter dated December 11, 2017, an Archives Specialist with the Office of Research Services stated that the office has Command Chronologies for the Veteran's unit for 1968 and 1969, but in order to conduct the search, an exact month would be required. VA then issued a memorandum on December 12, 2017, stating the VA lacks the information required to verify the Veteran's exposure to herbicides. The Veteran subsequently submitted an additional statement in April 2018 that discussed his trips to Da Nang. He explained that he primarily made the trips on weekends because most personnel were off duty on weekends, and his roommate, Sgt. B., asked him to escort the supply loads. Because the RO did not make an additional request to the Veteran to provide a specific month between 1968 and 1969 during which he may have made a trip to Da Nang, the Board remanded the claim for further development in April 2020. The RO sent the Veteran letter on April 22, 2020, requesting that he list the specific months between 1968 and 1969 that he may have traveled to Da Nang, Vietnam. Unfortunately, the Veteran and his representative did not respond to the request. As such, there are no military personnel records to corroborate the Veteran's claims that he was in Vietnam to meet the presumptive service connection criteria due to herbicide exposure pursuant to 38 C.F.R. § 3.309(e). In the April 2020 remand, the Board also instructed the RO to provide all personnel records from the Veteran's Army Reserves service from 1970 through 1998 in order to determine his periods of includes active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). Reserve service generally includes ACDUTRA and INACDUTRA. ACDUTRA is full time duty performed by Reservists pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38U.S.C. §101(22); 38C.F.R. §3.6(c). For VA purposes, service connection may be granted for a disability resulting either from an injury or disease incurred during ACDUTRA, or from an injury suffered during INACDUTRA. See 38 U.S.C. § 101 (24). However, a July 2020 response to a request for information states all of the available reserves records are currently in the file. Lastly, the Board issued a remand directive instructing that the Veteran be scheduled for a VA examination, and to obtain a VA medical opinion to determine the etiology of his diabetes. Unfortunately, the Veteran informed VA in in June 2021 that he currently resides in a VA nursing home, is under Hospice care, and is unable to leave the facility to attend a VA examination. Therefore, the Board will adjudicate the claim based on the information currently available. After resolving all reasonable doubt in favor of the Veteran, the Board concludes that the Veteran's diabetes began during service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As previously noted, following his active duty, the Veteran served as Reservist from 1970 to 1998. A July 1995 VA medical record notes the Veteran had a history of diabetes and vascular disease. The Veteran provided a diabetes Disability Benefits Questionnaire (DBQ) from his private physician in January 2017, which noted that the Veteran was diagnosed with diabetes in 1989. In a January 2018 VA foot examination and DBQ, a VA examiner stated the Veteran was diagnosed with diabetes in 1989. The Board also notes that the Veteran's son submitted a statement in March 2018, and reported that the Veteran was in the Reserves when he was diagnosed with diabetes. Given that attempts have been made to obtain the Veteran's reserve service records, to no avail, and it is not possible to determine whether diabetes was diagnosed during a period of ACDUTRA or INACDUTRA, the Board finds the evidence to at least be in equipoise as to whether the Veteran's diabetes arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for diabetes is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for hypertension, as secondary to diabetes mellitus 3. Entitlement to service connection for right leg below the knee amputation, as secondary to diabetes mellitus 4. Entitlement to service connection for a peripheral vascular disease of the left lower extremity, as secondary to diabetes mellitus 5. Entitlement to service connection for a peripheral vascular disease of the right lower extremity, as secondary to diabetes mellitus 6. Entitlement to service connection for peripheral neuropathy of the left upper extremity, as secondary to diabetes mellitus 7. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus 8. Entitlement to service connection for peripheral neuropathy of the right upper extremity, as secondary to diabetes mellitus 9. Entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to diabetes mellitus 10. Entitlement to service connection for end stage nephropathy, as secondary to diabetes mellitus The Veteran contends that he is also entitled to service connection for hypertension, right below the knee amputation, end stage nephropathy, bilateral lower extremity peripheral vascular disease, and bilateral upper and lower extremity peripheral neuropathy. As previously noted, a July 1995 medical record indicates the Veteran had a history of vascular disease. VA medical records show the Veteran underwent a right below the knee amputation in December 2016. Treatment notes from April 2018, July 2019, and April 2020 indicate the Veteran has diagnoses of diabetic polyneuropathy, hypertension, peripheral vascular disease, and chronic kidney disease. In the January 2017 diabetes DBQ, the Veteran's private physician stated that the Veteran has hypertension, peripheral vascular disease, and a right below the knee amputation that are at least as likely as not due to diabetes. The physician also stated that the Veteran's diabetes at least as likely as not permanently aggravated his renal disease and neuropathy. A VA examiner also stated in January 2018 that the Veteran's right below knee amputation was the result of his diabetes. Upon review of the record, the Board finds the Veteran's hypertension, right below the knee amputation, end stage nephropathy, bilateral lower extremity peripheral vascular disease, and bilateral upper and lower extremity peripheral neuropathy is either proximately due to or aggravated beyond natural progression by his now service-connected diabetes. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hypertension, right below the knee amputation, end stage nephropathy, bilateral lower extremity peripheral vascular disease, and bilateral upper and lower extremity peripheral neuropathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102." 11. Entitlement to right knee scars, as secondary to right leg below the knee amputation The Veteran contends he is entitled to service connection for right knee scars, as secondary to below the knee amputation. As discussed above, the Veteran is now in receipt of service connection for his right below the knee amputation as secondary to service-connected diabetes. The Veteran is competent to report observable symptoms, to include the presence of scars. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Given the Board's decision to award service connection for right leg below the knee amputation, the Board finds that service connection for right knee scars as secondary to his right leg below the knee the amputation, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102." REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, as secondary to diabetes mellitus is remanded. 2. Entitlement to service connection for skin cancer, as secondary to diabetes mellitus is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder and skin cancer, as secondary to service-connected diabetes. Currently, the evidence of record does not show the Veteran has an acquired psychiatric disorder or skin cancer. In a January 2017 diabetes DBQ, the Veteran's private physician stated that while the Veteran has not been formally tested, he has exhibited evidence of cognitive impairment, depression, and emotional lability. Remand is required to determine whether the Veteran has current diagnoses of an acquired psychiatric disorder and skin cancer, and whether those conditions are related to or aggravated by his service-connected diabetes. 3. Entitlement to service connection for anemia, as secondary to diabetes mellitus is remanded. 4. Entitlement to service connection for hyperlipidemia, as secondary to diabetes mellitus is remanded. The Veteran also believes he is entitled to service connection for anemia and hyperlipidemia, as secondary to diabetes. The medical records show the Veteran has diagnoses of anemia and hyperlipidemia. However, the record does not contain medical opinions that indicate anemia and/or hyperlipidemia are proximately due to or aggravated by his service-connected diabetes. Remand is required to obtain medical opinions. 5. Entitlement to service connection for cataracts, as secondary to diabetes mellitus is remanded. 6. Entitlement to service connection for retinopathy, as secondary to diabetes mellitus is remanded. The Veteran asserts that he has cataracts and retinopathy as a secondary to diabetes. A service treatment record from February 1956 notes that the Veteran had defective color vision. His private physician indicated in a January 2017 diabetes DBQ that it was likely that the Veteran has diabetic retinopathy, but he has not seen an eye doctor in recent years. Remand is required to obtain additional information regarding whether the Veteran has current eye diagnoses, and, if so, whether they are the result of or aggravated by his service-connected diabetes. 7. Entitlement to special monthly compensation based on aid and attendance/housebound is remanded. Finally, because a decision on the remanded issues above could significantly impact a decision on the Veteran's claim of entitlement to special monthly compensation based on aid and attendance/housebound, the issues are inextricably intertwined. A remand of the claim is required. The matters are REMANDED for the following action: 1. Request that the Veteran and his representative provide information regarding private medical treatment. Furnish and request that the Veteran complete an authorization for the release of all private medical records relevant to the above claimed disabilities. Alternatively, notify the Veteran that he may directly submit these private medical records to VA if he desires. 2. Then, schedule the Veteran for VA examinations for the following conditions: psychiatric disorder, skin cancer, anemia, hyperlipidemia, cataracts, and retinopathy. The Board acknowledges that the Veteran currently resides in a VA nursing home and is unable to leave the facility for physical examinations. Therefore, efforts should be made to either arrange for a physician to examine the Veteran at his nursing home facility, or conduct a telehealth interview. If such an arrangement cannot be made, then request appropriate physicians to review the entire claims file and provide opinions, as discussed in detail below. (Continued on the next page) (a.) Identify each confirmed diagnosis associated with the following claims of service connection: psychiatric disorders, skin cancer, anemia, hyperlipidemia, cataracts, and retinopathy. (b.) For each diagnosis, stated whether each condition is at least as likely as not either 1) proximately due to service-connected diabetes or 2) aggravated beyond its natural progression by service-connected diabetes. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, Associate 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.