Citation Nr: 22029167 Decision Date: 05/17/22 Archive Date: 05/17/22 DOCKET NO. 20-29 497A DATE: May 17, 2022 REMANDED Entitlement to service connection for diabetes, to include as secondary to exposure to herbicide agents, is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to diabetes, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's September 2020 VA Form 9, substantive appeal, was untimely as to the June 2020 statement of the case (SOC). However, in his August 2020 correspondence, the Veteran requested an extension, and the appeal was subsequently certified to the Board. See November 2020 VA Form 8. Thus, the Board accepts the substantive appeal as timely filed. See Percy v. Shinseki, 23 Vet. App. 37 (2009). On his September 2020 VA Form 9, the Veteran selected the option of only appealing the issues of entitlement to service connection for diabetes and ED from the June 2020 SOC, specifically listing those issues on his form. Accordingly, the only issues on appeal before the Board are entitlement to service connection for diabetes and ED. Following the most recent June 2020 SOC, and his September 2020 VA Form 9, the Veteran submitted a VA Form 10182 in October 2020, attempting to opt-in his appeal to the Appeals Modernization Act (AMA). See 38 C.F.R. § 3.2501. As the VA form 10182 was received after 60 days from the June 2020 SOC, the opt-in under the AMA system was untimely and the Board will proceed to adjudicate the claims under the Legacy system. See 38 C.F.R. §§ 3.2400, 19.52(b)(1). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. It is noted that service connection for diabetes was denied in an April 2010 rating decision on the basis that there was no disability incurred or aggravated in service. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. No evidence was constructively or physically of record within one year of the April 2010 determination. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). However, in August and December 2015, and November 2019, additional, relevant service personnel records that existed but were not previously of record were received and added to the claims file. 38 C.F.R. § 3.156(c). These records include personnel and performance reports outlining the Veteran's military duties. As such, the claim of entitlement to service connection for diabetes will be reviewed de novo. To more accurately reflect the scope of the Veteran's claims, the issues have been recharacterized as shown on the title page. The Veteran's appeal has been advanced on the docket. 38 C.F.R. § 20.902. 1. Entitlement to service connection for diabetes At the August 2021 Board hearing, the Veteran testified that during his service on Udorn Air Force Base in Thailand, he lived in the barracks next to the plant line where Agent Orange was sprayed. He testified that his military duties working on the flight line placed him near or at the perimeter of the base where he was exposed to herbicide agents. The Veteran's military occupational specialty (MOS) was aircraft maintenance specialist. In November 2019, the Veteran submitted photographs of the base, along with a statement outlining his military duties and his exposure to herbicide agents as a result. A review of the Veteran's military personnel records also shows his participation in the Vietnam Air Offensive Campaign Phase II from October 1967 to March 1968, and Phase III from April 1968 to October 1968. The record shows that Agent Orange exposure has not been conceded. See June 2020 VA Memorandum. Thus, additional action is needed in attempt to verify the claimed in-service herbicide exposure. At the August 2021 Board hearing, the Veteran also testified that he was diagnosed with diabetes in 1979 at Gainesville, Florida VA medical facility. A review of the Veteran's STRs shows slightly elevated blood pressure reading at his separation examination in March 1970. As such, upon remand, attempts should be made to obtain the Veteran's VA treatment records from Gainesville, Florida and he should be afforded a VA examination to address a relationship, if any, between his diabetes and his military service on a direct basis. 2. Entitlement to service connection for ED as secondary to diabetes At the August 2021 Board hearing, the Veteran attributed his ED to diabetes, including diabetes complications and medication. Accordingly, this matter is inextricably intertwined with the remanded matter and the adjudication of the claim is deferred. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Associate all outstanding VA treatment records with the claims file, including VA treatment records from Gainesville, Florida from 1970s. 2. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents, to include consideration of his contentions of being exposed to Agent Orange during his active duty on Udorn Air Force Base in Thailand. See November 2019 photographs and statement. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of inability to verify the claimed in-service herbicide exposure. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes. The entire claims folder must be reviewed by the examiner, including a copy of this Remand. The examiner is asked to provide an opinion with respect to the following: a) Whether it is at least as likely as not that the Veteran's diabetes is related to service, to include claimed in-service exposure to herbicide agents? In providing this opinion, the examiner must address all the evidence of record, to include slightly elevated blood pressure reading at the Veteran's separation examination in March 1970, photographs submitted in November 2019, and his statements attributing his diabetes to exposure to herbicide agents on Udorn Air Force Base in Thailand. 4. After completing #1-3 and any other development deemed appropriate, readjudicate the claims on appeal, to include entitlement to service connection for ED. If any claim remains denied, issue to the Veteran and his representative a supplemental statement of the case and provide the appropriate time period to respond. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.