Citation Nr: 23042663 Decision Date: 08/03/23 Archive Date: 08/03/23 DOCKET NO. 17-57 472 DATE: August 3, 2023 ORDER The appeal with respect to entitlement to service connection for a right hip disability is dismissed. The appeal with respect to entitlement to service connection for a urinary disorder, to include urinary tract infection and prostatic hyperplasia, is dismissed. The appeal with respect to entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD), is dismissed. The appeal with respect to entitlement to service connection for a chronic sleep disorder is dismissed. Service connection for type II diabetes mellitus is granted. Service connection for peripheral neuropathy of the right lower extremity is granted. Service connection for peripheral neuropathy of the left lower extremity is granted. Service connection for erectile dysfunction is granted. Service connection for hypertension is granted. Service connection for diabetic retinopathy is granted. REMANDED Entitlement to a compensable rating for allergic rhinitis is remanded. Entitlement to service connection for disability of the right big toe is remanded. Entitlement to service connection for a chronic eye disability other than diabetic retinopathy, to include binocular cataracts and glaucoma, is remanded. FINDINGS OF FACT 1. On the record at an April 2022 hearing, prior to the promulgation of an appellate decision, the Veteran, through his former agent, requested that his appeal with respect to entitlement to service connection for a right hip disability, a urinary disorder, an acquired psychiatric disorder, and a chronic sleep disorder be withdrawn; he confirmed that request in writing in May 2022. 2. It is at least as likely as not that the Veteran was actually exposed to herbicide agents during his service in Thailand. 3. The Veteran's type II diabetes mellitus is presumed to be associated with his in-service exposure to herbicide agents. 4. It is at least as likely as not that the peripheral neuropathy of the Veteran's lower extremities is due to his presumed in-service exposure to herbicide agents. 5. It is at least as likely as not that the Veteran suffers from diabetic retinopathy, hypertension, and erectile dysfunction as secondary to his diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a right hip disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a urinary disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a chronic sleep disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 8. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 9. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 10. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for diabetic retinopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1969 to August 1986, to include service in Thailand. These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2015 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. In April 2022, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for a right hip disability 2. Entitlement to service connection for a urinary disorder 3. Entitlement to service connection for an acquired psychiatric disorder 4. Entitlement to service connection for a chronic sleep disorder An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. Id. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. On the record at the April 2022 Board hearing, prior to the promulgation of an appellate decision, the Veteran requested, through his former agent, that his appeal with respect to entitlement to service connection for a right hip disability, a urinary disorder, an acquired psychiatric disorder, and a chronic sleep disorder be withdrawn. See Transcript pp. 2-3. He confirmed that request in writing in May 2022. Under the circumstances, the Board finds that the requirements for a proper withdrawal have been satisfied. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeal of these issues, there remain no allegations of error of fact or law for appellate consideration as to these issues. Accordingly, the appeal of these issues must be dismissed. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In considering the Veteran's claims, the Board observes that nothing of record shows that he has the requisite knowledge, skill, experience, training, or education to render medical opinions. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). However, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An approximate balance of the evidence includes, but is not limited to, equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 5. Entitlement to service connection for type II diabetes mellitus The Veteran seeks to establish service connection for type II diabetes mellitus. He maintains that the condition is the result of his in-service exposure to herbicide agents while serving in Thailand. In that regard, his service records confirm that he had service at Korat Royal Thai Air Base (RTAFB) while on active duty from January 1974 to January 1975. Under prior law, still in effect, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, was presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provided that service connection was warranted for certain diseases as presumptively due to herbicide exposure, to include type II diabetes mellitus. 38 C.F.R. § 3.309(e). On August 10, 2022, the President signed into law the Honoring Our Promise to Address Comprehensive Toxics (PACT) Act of 2022. Among other things, the Act expanded the presumption of herbicide exposure to veterans who had service in Thailand at any United States or Royal Thai base during the period beginning on January 9, 1962, and ending on June 30, 1976, without regard to where on the base the veteran was located or what military job specialty the veteran performed. See PACT Act of 2022, Pub. L. 117-168, 136 Stat. 1759 (2022). Under the provisions of the new law, the Veteran is now presumed to have been exposed to herbicide agents. VA policy prior to the enactment of the PACT Act allowed for special consideration of herbicide exposure on a factual basis for Veterans whose duties placed them on or near the perimeters of Thailand military bases. In a May 2010 bulletin, VA 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 of this information was the declassified Vietnam-era Department of Defense (DOD) document entitled, "Project CHECO Southeast Asia Report: Base Defense in Thailand." Although DOD indicated that the herbicide use was commercial in nature, rather than tactical (such as Agent Orange), VA determined that there was some evidence that herbicides of a tactical nature, or that of a greater strength commercial variant, were used. In light of this information, VA determined that special consideration should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. This, in essence, allowed for presumptive service connection of diseases associated with herbicide exposure. The May 2010 bulletin identifies several bases in Thailand, including Korat RTAFB. VA 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 served on an air base in Thailand and provided perimeter security. The Veteran testified at his April 2022 hearing that his duties required him to go to the incinerator, which was located on the flight line, several times a month. He also indicated that other duties required him to be at the flight line. He did not recall seeing the perimeter fence from that location. That said, however, the Court has held that Board must define the phrase "near the perimeter" in the first instance. See Stover v. McDonough, 35 Vet. App. 394 (2022). Although the PACT Act was not signed into law until the August 2022, the Board finds its provisions significant in terms of addressing the foregoing definition. Specifically, the fact that the law now presumes exposure to herbicide agents based on service at any Royal Thai Air base during the specified dates, and without regard to where on the base the veteran was located or what military job specialty the veteran performed, indicates that the definition of "near the perimeter" should be a broad one. Here, after careful consideration of the Veteran's account of his duties during his service in Thailand, the Board is satisfied that it is at least as likely as not that his duties at the flight line took him sufficiently near the base perimeter as to establish exposure to herbicide agents on a facts-found basis under the guidelines in effect prior to August 10, 2022. As the Veteran's type II diabetes mellitus is presumed to be associated with his exposure to herbicide agents, the criteria for an award of service connection have been satisfied. The appeal of this issue is granted. 6. Entitlement to service connection for peripheral neuropathy of the right lower extremity 7. Entitlement to service connection for peripheral neuropathy of the left lower extremity The Board observes that early onset peripheral neuropathy is one of the diseases presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). However, in order for the presumption to apply, the condition must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during service. 38 C.F.R. § 3.307(a)(6)(ii). In this case, the Veteran has been diagnosed with acute and subacute peripheral neuropathy of the lower extremities. See July 2014 VA Agent Orange examination. However, the record does not reflect that he was diagnosed with the condition within a year after he would have last been exposed to herbicide agents based upon his service in Thailand. In fact, he acknowledged at the April 2022 hearing that his problems with peripheral neuropathy originated years after service. See Transcript p. 13. As such, service connection is not warranted on a presumptive basis. The fact that service connection is not warranted on a presumptive basis does not preclude the Veteran from establishing service connection as due to herbicide exposure with proof of actual causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). In other words, the presumption of service connection provided by law is not the sole method for demonstrating a nexus to service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange (i.e., herbicide agents) does not preclude direct service connection for other conditions based on exposure to Agent Orange). In this regard, the United States Court of Appeals for Veterans Claims (Court) has indicated that with respect to individual medical opinions pertaining to service connection based on herbicide exposure, factors that may affect a medical professional's analysis might include "whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner." Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). In this case, a VA Agent Orange examiner in an August 2014 report took note of, among other things, the Veteran's complaint of bilateral burning/tingling from his knees to his feet. After evaluating the Veteran, the examiner assessed acute and subacute peripheral neuropathy of the lower extremities. The examiner further noted that the condition (together with type II diabetes) was a problem that was related to Agent Orange. Although the examiner did not provide an explicit rationale for that conclusion, the evaluation was an official VA Agent Orange examination, conducted for the express purpose of assessing whether the Veteran had any problems that were related to his exposure to herbicide agents during his service in Thailand. As such, the Board finds the examiner's opinion probative. There is no other medical opinion evidence to the contrary. As noted previously, the law mandates resolving reasonable doubt in favor of the Veteran, to include with respect to issues of service origin. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Court has held that in light of that doctrine, an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Alemany v. Brown, 9 Vet. App. 518 (1996). Taking into account the totality of the record, the Board is satisfied that the criteria for an award of service connection for peripheral neuropathy of the right and left lower extremities has been satisfied. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. Therefore, the appeal of these issues is granted. 8. Entitlement to service connection for erectile dysfunction 9. Entitlement to service connection for hypertension 10. Entitlement to service connection for diabetic retinopathy Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). 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) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In the present case, medical evidence of record reflects that the Veteran suffers from erectile dysfunction, hypertension, and diabetic retinopathy as complications of and/or as secondary to his type II diabetes mellitus. Specifically, a physician indicated in a July 2018 examination report that the Veteran had a known complication of diabetic retinopathy. That same physician also indicated that erectile dysfunction and hypertension were at least as likely as not (50 percent or more likely) due to diabetes. The clinician further stated the hypertension was at least as likely as not aggravated by the diabetes. In light of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that he has erectile dysfunction, hypertension, and diabetic retinopathy as secondary to his diabetes mellitus. As such, the appeal of these issues is granted. The Board notes in this regard that the PACT Act added hypertension to the list of diseases presumed to be associated with exposure to herbicide agents. On September 30, 2022, the VA Secretary signed an Executive Decision Memorandum which permitted the Board to begin granting service connection for disabilities, such as hypertension, that have phased-in applicability dates under the Act. However, the Veteran's claim for service connection for hypertension was pending prior to the enactment of the PACT Act. In addition, the evidence reflects that service connection for hypertension is warranted on an independent basis, without regard to the PACT Act, as secondary to the Veteran's diabetes. REASONS FOR REMAND 1. Entitlement to a compensable rating for allergic rhinitis is remanded. Under Diagnostic Code 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side. A 20 percent rating is warranted where nasal polyps are present. 38 C.F.R. § 4.97. The Board is concerned that the evidence of record is not sufficient to adequately evaluate the Veteran's service-connected allergic rhinitis. The Board acknowledges that a March 2015 VA examiner found that the Veteran did not have polyps, greater than 50 percent obstruction of nasal passages on both sides, or complete obstruction on one side. However, the Veteran testified at the April 2022 hearing that he used medication to control his symptoms and his symptoms increased when he did not use his medication. See Transcript pp. 6-7, 21-22. Diagnostic Code 6522 does not address the effects of medication. As such, any improvement in disability due to medication may not be considered when assigning a rating. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Under the circumstances, the Board finds that the Veteran must be afforded an examination and retrospective medical opinion that disregards the ameliorative effects of medication in assessing the severity of his service-connected allergic rhinitis.? 2. Entitlement to service connection for disability of the right big toe is remanded. At the April 2022 Board hearing, the Veteran described problems with the toenail on his right great toe. See Transcript pp. 12-13, 17, 20-21. However, the exact nature and etiology of the condition is not clear from the record, to include whether it is related to his presumed in-service exposure to herbicide agents and/or secondary to his diabetes mellitus. An examination and medical opinion are warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Colvin, supra. 3. Entitlement to service connection for a chronic eye disability other than diabetic retinopathy, to include binocular cataracts and glaucoma, is remanded. As noted above, the Board has determined that service connection is warranted for diabetic retinopathy. The record references other eye conditions, to include findings pertaining to cataracts and glaucoma. A July 2018 examination report, referenced above, indicates that the Veteran had eye problems other than the diabetic retinopathy that were associated with diabetes, but does not specify what they were. An examination and medical opinion are needed to clarify the matter. See McLendon, supra; Colvin, supra. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue(s) remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination for purposes of assessing the severity of his allergic rhinitis. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. As part of the examination, the examiner should be asked to review the record and provide a retrospective opinion as to whether, when the ameliorative effects of medication are disregarded, it is at least as likely as not (i.e., it is 50 percent or more probable) that the Veteran's allergic rhinitis would have been manifested by polyps, by obstruction of the nasal passages greater than 50 percent on both sides, and/or by complete obstruction on one side. Stated another way, the examiner should offer an opinion with respect to whether it is at least as likely as not that, if the Veteran had used no medication at all to control his symptoms, his allergic rhinitis would have been manifested by greater than 50-percent obstruction of the nasal passage on both sides, complete obstruction on one side, and/or polyps during all or any portion of the period on appeal since July 31, 2014. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer. A complete medical rationale for all opinions expressed must be provided. 4. Also arrange to have the Veteran scheduled for examinations for purposes of assessing the nature and etiology of the claimed disabilities of his right big toe and a chronic eye disability other than diabetic retinopathy. For any pertinent disability found to be present, the examiner(s) should express an opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the disability had its onset in, or is otherwise related to, active service, to include the Veteran's conceded in-service exposure to herbicide agents in Thailand. For the eye/vision claim, the examiner should explicitly address the past findings of cataracts and glaucoma. If it is the examiners' conclusion that it is unlikely that a disability had its onset in or is otherwise related to, active service, he or she should express a further opinion as to whether it is at least as likely as not that the disability (a) was caused or (b) has been aggravated (i.e., worsened beyond natural progression) by the Veteran's service-connected type II diabetes mellitus. A complete rationale for all opinions expressed must be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.