Citation Nr: 22049385 Decision Date: 08/30/22 Archive Date: 08/30/22 DOCKET NO. 14-26 578 DATE: August 30, 2022 ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for right lower extremity peripheral neuropathy is granted. Entitlement to service connection for left lower extremity peripheral neuropathy is granted. Entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for a psychiatric disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran was exposed to herbicide agents during active service in Thailand. 2. The Veteran has a current diagnosis of diabetes mellitus type II. 3. Diabetes mellitus type II is presumed due to exposure to herbicide agents during service. 4. The Veteran has a current diagnosis of diabetes mellitus with associated neuropathy in the right and left lower extremities. 5. The Veteran has a current diagnosis of diabetes mellitus with associated erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 2. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In April 2018, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection 1. Entitlement to service connection for diabetes mellitus. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To establish service connection for a current disability, a Veteran must show: (1) the existence of a current 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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand, a practice that was intended to eliminate vegetation and ground cover for base security purposes. A primary source for that information was the declassified Vietnam era Department of Defense document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although the Department of Defense indicated that the herbicide agent used was commercial in nature rather than tactical, VA has determined that there was some evidence that herbicide agents of a tactical nature, or of a greater strength commercial variant, were used. VA 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 agent exposure on a facts found or direct basis should be extended to those Veterans. A Veteran who, during active service, served in the Republic of Vietnam during the Vietnam war, between January 9, 1962, to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). Exposure to herbicide agents may also be established on a factual basis for Veterans whose duties placed them on or near the perimeters of Thailand Military bases. VA has identified several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, that qualify for consideration. Therefore, herbicide agent exposure should be acknowledged on a facts found or direct basis if 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 military occupational specialty, performance evaluations, or other credible evidence, during the Vietnam era, from February 28, 1961, to May 7, 1975. The list of diseases presumptively associated with exposure to herbicide agents includes diabetes mellitus, type II. 38 C.F.R. § 3.309(e). The Veteran contends that his diabetes mellitus was caused by exposure to herbicide agents while stationed at U-Tapao Royal Thai Air Force Base in Thailand. The Veteran does not assert that he served in the Republic of Vietnam and the evidence of record does not document service in Vietnam. Therefore, he is not presumed to have been exposed to herbicide agents in Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). The Veteran contends that he worked near the perimeter of U-Tapao Royal Thai Air Force Base as an aircraft maintenance specialist and airplane mechanic. Specifically, the Veteran has stated that his service duties caused him to work on aircraft near and on the flight line, which was located along the perimeter roads of the base. Medical records show a current diagnosis of diabetes mellitus, type II. Regarding herbicide agent exposure, the Veteran contends that he was stationed at U-Tapao Royal Thai Air Force base. The Veteran's service personnel records confirm foreign service for six months. Additionally, VA has confirmed the Veteran service in Thailand during the Vietnam War era. U-Tapao Royal Thai Air Force Base is one of the bases in Thailand that is associated with herbicide agent use. The service personnel records confirm that the Veteran served as an aircraft mechanic while on active duty. The Veteran was not a security policeman, a security patrol dog handler, or a member of a security police squadron. Thus, the Veteran must establish that he otherwise served near the air base perimeter, as shown by occupational specialty, performance evaluations, or other credible evidence, in order for the Board to find that the Veteran was exposed to herbicide agents while stationed in Thailand. In written statements and in hearing testimony, the Veteran stated that he was deployed at U-Tapao Royal Thai Airforce Base where his primary assignment caused him to work on or near the flight line, which was on the perimeter of the base during his time stationed at U-Tapao Royal Thai Air Force Base. The service personnel records confirm that the Veteran worked on the flight line. The Board finds the lay statements to be competent, credible, and persuasive. The Veteran's description of his work while at the U-Tapao Royal Thai Air Force Base is credible and consistent with his occupational specialty and the evidence of record. There is no contrary evidence to disprove the Veteran's contentions, nor is there any basis to question the Veteran's credibility regarding those statements. After a thorough review of the record, to include all lay evidence submitted by the Veteran and the service records, the Board resolves reasonable doubt in the Veteran's favor and finds it is at least as likely as not that he was exposed to herbicide agents while stationed at U-Tapao Royal Thai Air Force Base when work duties placed him on or near the perimeter of the base. The Veteran's occupational specialty, and his credible statements, establish that his duties required him to be near the base perimeter to fulfil the obligations as an aircraft mechanic. Thus, based on the specific facts of this case, the Veteran is found to have as likely as not been exposed to herbicide agents while stationed in Thailand near the air base perimeter. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for diabetes mellitus type II, on a presumptive basis due to herbicide agent exposure, is warranted. Thus, resolving reasonable doubt in the Veteran's favor, service connection for diabetes mellitus type II presumed due to herbicide agent exposure is granted. 2. Entitlement to service connection for right lower extremity peripheral neuropathy 3. Entitlement to service connection for left lower extremity peripheral neuropathy 4. Entitlement to service connection for erectile dysfunction The Veteran seeks service connection for peripheral neuropathy of the bilateral lower extremities and erectile dysfunction, secondary to diabetes mellitus. A November 2011 VA diabetic agent orange registry examination diagnosed peripheral neuropathy in both feet and erectile dysfunction secondarily to diabetes mellitus. The Board finds that the November 2011 VA examiner, and private treatment records, confirm that bilateral lower extremity peripheral neuropathy and erectile dysfunction are complications associated with diabetes mellitus. Based on that evidence, and in light of the above grant of service connection for diabetes mellitus, the Board finds that service connection for bilateral lower extremity diabetic peripheral neuropathy and service connection for erectile dysfunction is warranted on a secondary basis as due to or the result of service-connected diabetes mellitus. Therefore, the claims are granted. 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a psychiatric disability. The Veteran now asserts a new theory of entitlement. The Veteran now claims that a psychiatric disability is directly related to events during service. Specifically, the Veteran contends that a psychiatric disability is the result of hearing about captured servicemen during service in Thailand. The record now shows potential diagnoses and alleged potential causation related to service. However, the Veteran has not been provided an adequate VA examination which addresses that theory of entitlement. That is a pre-decisional duty to assist error. Therefore, the Board finds that a VA opinion to determine any relationship between the claimed disability and active service should be scheduled. Furthermore, the claims file now shows that it is likely that there are relevant records in the possession of Social Security Administration (SSA) that have not yet been associated with the claims file. The record indicates that the Veteran receives Social Security Administration (SSA) disability benefits. Specifically, a December 2019 SSA inquiry response indicates that the Veteran receives SSA benefits. The SSA records have not been requested or otherwise associated with the claims file. The claims file does not contain a decision to grant or deny SSA benefits or the medical records upon which that determination was based. Nor does it appear that an attempt has made to obtain those records. VA's duty to assist includes obtaining medical records that supported an SSA decision regarding disability benefits as they may contain information relevant to VA claims and are in government possession. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Thus, VA has a duty to obtain SSA records when they may be relevant to a claim. The possibility that SSA records could contain evidence relevant to the Veteran's claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the Board finds that an attempt should be made to obtain any available SSA records. 38 C.F.R. § 3.159(c)(2). Accordingly, those records should be requested on remand. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran is reminded that the duty to assist is not a one-way street. A Veteran is required to cooperate with the examiner's efforts to evaluate the nature and current severity of symptomology. Wood v. Derwinski,1 Vet. App. 190 (1991). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of these claims. The consequences of failure to cooperate with or report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The Veteran is notified that failure to cooperate during the requested VA examination may result in an adverse determination. 38 C.F.R. § 3.655; Connolly v. Derwinski,1 Vet. App. 566 (1991). The matters are REMANDED for the following action: 1. Contact the SSA and request that documentation of the Veteran's award of disability benefits or the denial of that claim and copies of all records developed in association with the decision. Obtain any relevant administrative and medical records related to a disability claim from SSA and associate them with the claims file. All attempts to secure the evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not obtained, provide the required notice and opportunity to respond to the appellant. 2. Contact National Personnel Records Center (NPRC), Defense Personnel Records Information Retrieval System (DPRIS), or any other appropriate repository or service department research facility to determine whether any of the Veteran's service involved engaging in combat with the enemy or was in places or the types of circumstances involving hostile Military or terrorist activity. The service separation form notes foreign service. If any requested Federal records cannot be obtained, document in a memorandum of unavailability to the file the attempts that were made to obtain them and explain why additional attempts to obtain the records would be futile. 3. Then, schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine the nature and etiology of any psychiatric disability. The examiner must review the claims file, including this Remand, and should note that review in the report. The examiner should address the lay statements of record, to include hearing testimony, regarding the claimed disability and its etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. After reviewing the claims files, the examiner should diagnose all psychiatric disabilities found pursuant to DSM-5. The examiner should specifically state whether each criterion for a diagnosis of PTSD is met. If PTSD is diagnosed, the examiner must identify the specific stressors upon which the diagnosis is based. For each diagnosed psychiatric disability, the examiner should opine whether it is as likely as not that the psychiatric disability is etiologically related to active service or any event, disease, or injury during service, including whether any psychiatric disability (a) began during active service, (b) was noted during service with continuity of the same symptomatology since service, (c) was caused by the service-connected disabilities or treatment for the service-connected disabilities, or (d) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for the service-connected disabilities. The examiner should address the Veteran's lay statements regarding the claimed disability and its etiology and symptoms during and since service. A clearly stated rationale for each opinion offered must be provided and cannot be based on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.