Citation Nr: A23008467 Decision Date: 04/29/23 Archive Date: 04/29/23 DOCKET NO. 220526-246228 DATE: April 29, 2023 ORDER Service connection for diabetes mellitus is granted. Service connection for bilateral lower extremity diabetic peripheral neuropathy (polyneuropathy) is granted secondary to the Veteran's service connected diabetes mellitus. Service connection for bilateral upper extremity diabetic peripheral neuropathy (polyneuropathy) is granted secondary to the Veteran's service connected diabetes mellitus. Service connection for diabetic retinopathy and macular edema is granted secondary to the Veteran's service connected diabetes mellitus. Service connection for hypertension is granted. Service connection for hypertensive renal disease and end-stage renal disease is granted secondary to the Veteran's service connected hypertension. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during active service in Korea. 2. The Veteran has diabetes mellitus that was caused by his exposure to herbicide agents. 3. The Veteran has bilateral upper and lower extremity diabetic peripheral neuropathy secondary to his service connected diabetes mellitus. 4. The Veteran has diabetic retinopathy and macular edema secondary to his service connected diabetes mellitus. 5. The Veteran has hypertension that was caused by his in service herbicide-agent exposure. 6. The Veteran has hypertensive renal disease and end-stage renal disease secondary to his service connected hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 2. The criteria for service connection for bilateral upper extremity peripheral neuropathy have been met. 38 C.F.R. § 3.310. 3. The criteria for service connection for bilateral lower extremity peripheral neuropathy have been met. 38 C.F.R. § 3.310. 4. The criteria for service connection for diabetic retinopathy and macular edema have been met. 38 C.F.R. § 3.310. 5. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303(d). 6. The criteria for service connection for hypertensive renal disease and end-stage renal disease have been met. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to October 1980, with service in Korea from October 28, 1978 through October 24, 1979. We thank him for his service. This case comes before the Board of Veterans' Appeals (Board) from a May 2022 Supplemental Statement of the Case under the modernized review system, which derived from two different rating decisions on appeal under the legacy review system. The AOJ denied service connection for diabetes in a December 2011rating decision, and denied retinopathy and polyneuropathy in a February 2013 rating decision. In this regard, the Board notes that within one year of the denial of service connection for diabetes mellitus in December 2011, the Veteran submitted lay statements regarding his exposure to herbicide agents (the reason for the December 2011 denial). Thus, new and material evidence was received, and the December 2011 rating decision never became final and was the one on appeal to the Board in the legacy review system. 38 C.F.R. § 3.156(b). Regarding the diabetic retinopathy and polyneuropathy claims, additional relevant service personnel records were received in July 2013, warranting reconsideration of those claims pursuant to 38 C.F.R. § 3.156(c). In addition, the AOJ denied service connection for hypertension and hypertensive renal disease and end stage renal disease in a March 2022 rating decision. In October 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge. In December 2019 and December 2020, the Board remanded these matters to the AOJ for additional development. The Board finds there has been substantial compliance with the remand directives. The Veteran opted into the modernized review system by submitting a May 26, 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). The Veteran elected the Evidence Submission option; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. Service Connection The Veteran asserts that his diabetes mellitus type II is directly related to in-service exposure to herbicide agents, either tactical or non-tactical, during his service in the Demilitarized Zone (DMZ) of Korea from October 1978 to October 1979. See Service Personnel Records (SPRs), January 2010 VA Form 21-526, May 2012 Veteran lay statement, and October 2019 Board Hearing Transcript at 3-4. The December 2019 Board Remand conceded the Veteran's presence along the DMZ. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for certain chronic diseases, including hypertension, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 are met, even though there is no record of such disease during service. In the present case, the Veteran served in the Korean DMZ after a period during which exposure to herbicides is presumed. See 38 C.F.R. § 3.309(e). Thus, his service in Korea does not qualify him for presumptive exposure to herbicide agents. If a Veteran is found not to be entitled to a regulatory presumption of service connection, this does not preclude a Veteran from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran does not report, nor do his service treatment records (STRs) identify, any complaints, treatment for, or diagnosis of diabetes mellitus, polyneuropathy, retinopathy, macular edema, hypertension, or renal disease during service. The Veteran currently has diagnoses of these conditions. The Veteran has promoted two basic theories of entitlement regarding the proximate cause of his diabetes mellitus type II and hypertension (to include polyneuropathy, retinopathy, and renal disease) and they are: 1) that he was exposed to chemicals listed in 38 C.F.R. § 3.307(a)(6) when he was: (a) required to patrol the Korean DMZ from October 28, 1978 to October 24, 1979 as a grenadier, and (b) when he was required to dig up soil within the DMZ for use in sandbags; or 2) he was exposed to other commercial grade, non-tactical herbicide agents used for vegetation control. Thus, the crux of the matter is whether he may have been exposed to the chemicals listed in 38 C.F.R. § 3.307 that have proximately caused diabetes mellitus type II, or in the alternative, whether he was exposed to non-tactical, commercial grade herbicide agents that have proximately caused his current disabilities. Regarding his first theory of exposure, the Veteran submitted a May 2022 statement from a former army chemical officer who is a professional engineer and certified engineering geologist who has over 50 years of professional experience with soils engineering and environmental fate of toxic chemicals. He found that the Veteran more likely than not was exposed to dioxin-contaminated soil while serving on or near the Korean DMZ for a year from October 1978 to October 1979. The professional noted that he indicated in an August 2020 expert opinion that the dioxin concentration in the soil of the Korean DMZ was extremely toxic from 1968-1971, and, in his expert opinion, was still toxic while the Veteran was there 7 years later. His expert opinion was based on research conducted by a group of researchers in 2017. Of key relevance was that dioxin has a proven half life in surface soils of 5 to 15 years, and in shallow buried soils of 25 to 100 years, as documented by a plethora of scientific studies. The professional indicated that 11B soldiers (like the Veteran) literally lived in the upper 2 to 3 feet of soil for days at a time while in hot zones at the Korean DMZ. They filled sandbags with contaminated soil, did not carry hand wipes, did not wash or bathe daily, and ate, smoked, and drank without washing. They dug coffin-sized fox holes at every resting place, day or night. He knew this for a fact because he served with them on the Korean DMZ for 8 months between May 1969 and June 1970. The Veteran testified in October 2019 that he had to dig up dirt and fill sandbags with them up and down the DMZ during service. The professional indicated in May 2022 that he had viewed professional imagery of the Korean DMZ and rear areas, and that after 50 years, they still show how Agent Orange and dioxin have persisted in the soil. The Korean DMZ and tactical nuclear artillery/radar sites were toxic in 1969-70 when he was there applying the herbicides full strength, and in his opinion, the treated soils continued to be highly toxic in 1978 to 1979. The professional indicated that the Veteran's modes of exposure included, at a minimum, by physically digging into the soil, filling sandbags with this same dioxin-contaminated soil, sleeping/resting in foxholes he dug, as well as he likely ingested and/or inhaled the dust and finer particles of these same contaminated soils. Additionally, the Veteran had indicated that he had served as a security guard at Freedom Bridge, and both of its abutments were heavily defoliated with Agent Orange to eliminate cover and concealment of North Korean saboteurs. The access road and guard posts and some areas of infantry patrols within the DMZ where the Veteran served were sprayed with Agent Orange for security purposes. The Agent Orange they sprayed had the viscosity of 10-weight motor oil. The Board finds this to be persuasive evidence that the Veteran was exposed to herbicide agents during his service in Korea. Diabetes mellitus is statutorily associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Accordingly, the third element of nexus is met and service connection for diabetes mellitus is warranted. Additionally, the Veteran's right and left upper and lower extremity polyneuropathy are shown to be secondary to the Veteran's service connected diabetes mellitus, and so service connection is to be granted for these conditions pursuant to 38 C.F.R. § 3.310. The Veteran claimed service connection for "eye condition" in May 2012 and May 2013, and the Board in the present decision has considered whether service connection is warranted for diabetic retinopathy as well as macular edema. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). A June 2009 VA medical record indicates that the Veteran has diabetic retinopathy bilaterally. An August 2009 VA medical record indicates that he has macular edema secondary to his diabetes mellitus. It is shown again currently, including in November 2017. Thus, service connection for diabetic retinopathy and macular edema is granted. 38 C.F.R. § 3.310. Concerning hypertension and hypertensive renal disease or end stage renal disease, the March 2022 rating decision contains favorable findings, specifically, that the Veteran has current diagnoses of hypertension and hypertensive renal disease. On the matter of nexus to service for hypertension, a private cardiologist stated in March 2022 that dioxin exposure is a substantial risk factor for the development of hypertension. He cited medical literature to support the finding that dioxin exposure can directly lead to hypertension through various mechanisms that include impaired lipid metabolism, increased oxidative stress, and endothelial inflammation. He reviewed the Veteran's medical records. And, ultimately, the doctor opined that it is at least as likely as not that the Veteran's in service exposure to herbicides and dioxin is the cause of his hypertension. Accordingly, we find that the Veteran has hypertension due to in service Agent Orange exposure, and so service connection is warranted for it on a direct basis under 38 C.F.R. §§ 3.303(d). On the matter of service connection for hypertensive renal disease and end-stage renal disease, a February 2022 VA medical record indicates that he has hypertensive renal disease. Given this diagnosis, we conclude that secondary service connection is warranted for the Veteran's current renal disease, including end-stage renal disease, as secondary to his service connected hypertension. See 38 C.F.R. § 3.310. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.