Citation Nr: 1033121 Decision Date: 09/02/10 Archive Date: 09/13/10 DOCKET NO. 09-34 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus, type II, and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim for service connection for diabetic retinopathy as secondary to diabetes mellitus and, if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a claim for service connection for peripheral neuropathy of the lower extremities as secondary to diabetes mellitus and, if so, whether service connection is warranted. 4. Whether new and material evidence has been received to reopen a claim for service connection for peripheral neuropathy of the upper extremities as secondary to diabetes mellitus and, if so, whether service connection is warranted. 5. Whether new and material evidence has been received to reopen a claim for service connection for coronary artery disease, postoperative coronary artery bypass graft (CABG), as secondary to diabetes mellitus. 6. Whether new and material evidence has been received to reopen a claim for service connection for depression. 7. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to diabetes mellitus. 8. Entitlement to service connection for anemia, to include as secondary to diabetes mellitus. 9. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 10. Entitlement to service connection for bruising and fragile skin, to include as secondary to diabetes mellitus. 11. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus. 12. Entitlement to service connection for high cholesterol, to include as secondary to diabetes mellitus. REPRESENTATION Veteran represented by: Michael G. Smith, Attorney at Law WITNESSES AT HEARINGS ON APPEAL The Veteran and his former service representative ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. In December 2009, the Veteran and his former service representative testified at a Board hearing before the undersigned Acting Veterans Law Judge at the RO. Transcripts of both hearings are of record. On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. As required by 38 U.S.C. § 1116, VA will issue regulations through notice and comment rule-making procedures to establish the new presumptions of service connection for those diseases. Those regulations will take effect on the date that a final rule is published in the Federal Register. Until that time, VA does not have authority to establish service connection and award benefits based upon the planned new presumptions. On November 20, 2009, the Secretary of VA directed the Board to stay action on all claims for service connection that cannot be granted under current law but that potentially may be granted based on the planned new presumptions of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. As this appeal contains at least one claim that may be affected by these new presumptions, the Board must stay action on the Veteran's petition to reopen his claim for service connection for coronary artery disease, postoperative CABG, as secondary to diabetes mellitus, in accordance with the Secretary's stay. Once the planned final regulations are published, the adjudication of that claim will be resumed. Referable to the Veteran's claimed acquired psychiatric disorder, the Board recognizes that the Veteran has diagnoses of adjustment disorder secondary to partner relational problems and a depressive disorder and that service connection for depression had previously been denied in a December 2004 rating decision. The Board notes that the United States Court of Appeals for the Federal Circuit has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Further, the United States Court of Appeals for Veterans Claims (Court) has determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively-after there has been a finding of fact based upon competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009) (emphasis in original). In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Court determined that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. Therefore, under Boggs and Ephraim, new and material evidence is required to reopen the Veteran's claim of entitlement to service connection for depression. As the Board determines herein that such evidence sufficient to reopen the Veteran's claim has been received, the Board has recharacterized the reopened claim pursuant to Clemons as entitlement to service connection for an acquired psychiatric disorder. The Board further observes that, following the issuance of the statement of the case in September 2009, additional evidence relevant to the Veteran's claims based on exposure to herbicides has been received. He waived agency of original jurisdiction (AOJ) consideration of some, but not all, of the documents. 38 C.F.R. § 20.1304 (2009). However, as the Board herein finds that the Veteran was exposed to herbicides and grants service connection on a presumptive basis for diabetes mellitus and complications, no prejudice results to the Veteran in the Board proceeding with a decision at this time. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for an acquired psychiatric disorder, anemia, hypertension, and erectile dysfunction, all to include as secondary to service-connected diabetes mellitus, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. A December 2004 rating decision, which denied service connection for diabetes mellitus, type II, depression, and diabetic retinopathy, and peripheral neuropathy of the lower and upper extremities as secondary to diabetes mellitus, is final. 2. The evidence associated with the claims file subsequent to the December 2004 rating decision relates to an unestablished fact necessary to substantiate each claim for service connection for diabetes mellitus, type II, for depression, and for diabetic retinopathy and peripheral neuropathy of the lower and upper extremities as secondary to diabetes mellitus and raises a reasonable possibility of substantiating each claim. 3. Resolving any doubt in the Veteran's favor, the Veteran likely entered the Republic of Vietnam during his military service and, thus, was exposed to herbicides. 4. Resolving any doubt in the Veteran's favor, exposure to herbicides at the Udorn, Thailand, Air Base from October 1968 to August 1969 has been shown. 5. The medical evidence of record indicates that the Veteran has been diagnosed with diabetes mellitus, type II, and such is presumed to be related to herbicide exposure. 6. The medical evidence of record indicates that the Veteran has been diagnosed with diabetic retinopathy. 7. The medical evidence of record indicates that the Veteran has been diagnosed with diabetic peripheral neuropathy of the lower extremities. 8. The medical evidence of record indicates that the Veteran has been diagnosed with diabetic peripheral neuropathy of the upper extremities. 9. Bruising and fragile skin does not constitute a disease or disability for VA compensation purposes. 10. High cholesterol does not constitute a disease or disability for VA compensation purposes. CONCLUSIONS OF LAW 1. Evidence received since the final December 2004 decision wherein the RO denied the Veteran's claims for service connection for diabetes mellitus, type II, for depression, and for diabetic retinopathy and peripheral neuropathy of the lower and upper extremities as secondary to diabetes mellitus is new and material and the Veteran's claims for those benefits are reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103 (2009). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 3. With resolution of reasonable doubt in the Veteran's favor, diabetic retinopathy is proximately due to service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.310 (2009). 4. With resolution of reasonable doubt in the Veteran's favor, peripheral neuropathy of the lower extremities is proximately due to service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.310 (2009). 5. With resolution of reasonable doubt in the Veteran's favor, peripheral neuropathy of the upper extremities is proximately due to service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.310 (2009). 6. A bruised and fragile skin disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 7. A high cholesterol disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In light of the Board's decision to reopen and grant service connection for diabetes mellitus, diabetic retinopathy, and diabetic neuropathy of the bilateral upper and lower extremities, no further action is required to comply with the VCAA as relevant to such claims. Additionally, as the Board's decision to reopen the Veteran's claim of entitlement to service connection for depression is completely favorable and, in that regard, no further action is required to comply with the VCAA. Consideration of the merits of the Veteran's claim for service connection for an acquired psychiatric disorder is deferred, however, pending additional development consistent with the VCAA. Relevant to the claims denied herein, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, letters dated in July 2008 and September 2008, sent prior to the initial unfavorable decision issued in May 2009, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letters informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. The duty to assist also has been fulfilled as all relevant VA and private medical records have been requested and obtained. In regard to the Veteran's claims for service connection for bruising and fragile skin and for high cholesterol, VA examinations were not conducted. In this case, an examination of the skin and his cholesterol level is not needed because, as explained below, eligibility for service connection requires evidence of a current disability and neither bruised skin or high cholesterol constitute disabilities for which service connection may be granted. The Board finds that the available medical evidence is sufficient for an adequate determination of the matters decided herein. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with the claims decided herein would not cause any prejudice to the Veteran. New and Material Evidence The Veteran seeks service connection for diabetes mellitus and depression. He also seeks service connection for diabetic retinopathy and peripheral neuropathy of the lower and upper extremities as secondary to diabetes. The RO previously considered and denied service connection claims for diabetes, diabetic retinopathy, peripheral neuropathy of the lower and upper extremities, and depression in a December 2004 rating decision. The Veteran did not appeal this decision and, therefore, it has become final. 38 U.S.C.A. § 7103(a); 38 C.F.R. §§ 20.302, 20.1103 (2009). As such, the Veteran's claims may be reopened only if new and material evidence has been secured or presented since the last final rating decision. See Glynn v. Brown, 6 Vet. App. 523 (1994). 38 U.S.C.A. § 7103(a); 38 C.F.R. § 3.156. The Board notes that the Veteran now also seeks service connection for depression on the basis that it is secondary to his diabetes mellitus. The Board points out that the Veteran's new theory of entitlement on the basis of secondary service connection does not constitute a new claim. Current case law indicates that a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under 38 U.S.C.A. § 7104(b). Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008). The Court has held that separate theories in support of a claim for benefits for a particular disability does not equate to separate claims for benefits for that disability. Although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. Robinson v. Mansfield, 21 Vet. App. 545, 550 (2008). In the Robinson decision, the Court explicitly held that the notion that claims of service connection and secondary service connection were two different claims had been overruled. 21 Vet. App. at 550-51 (acknowledging that Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000), had overruled Perman v. Brown, 5 Vet. App. 237 (1993), which had previously indicated that the two theories were different claims). See also Velez v. Shinseki, 23 Vet. App. 199, 206 (2009) (holding that regardless of whether the RO first adjudicated a Veteran's cervical spine disorder claim on both direct and secondary bases, his failure to timely appeal that denial now foreclosed adjudication on a direct basis without submission of new and material evidence to reopen). It therefore follows that the last final decision regarding the claim for service connection for depression was the RO's December 2004 rating action. As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. Id. The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Therefore, the Board will undertake a de novo review of the new and material evidence issue. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Initially, it is noted that the evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to the merits of the claim on the basis of all of the evidence of record. The claim for service connection for diabetes was initially denied in the December 2004 RO decision as there was no evidence the Veteran had ever served in Vietnam (where exposure to herbicides is conceded). The claims for service connection for diabetes, diabetic retinopathy, peripheral neuropathy of the lower and upper extremities, and depression were all denied because there was no evidence showing any of these disorders were incurred in or aggravated by service. In addition, the claims for diabetic retinopathy and peripheral neuropathy of the lower and upper extremities were denied because the Veteran was not service-connected for diabetes mellitus. Further, the claim for service connection for depression was also denied on the basis that there was no evidence of a current diagnosis of depression. At the time of the December 2004 RO decision the evidence of record consisted of service treatment records; verification from the service department that the Veteran did not serve in Vietnam; and VA medical records dated from August 2002 to July 2004. Evidence associated with the claims file after the December 2004 RO decision includes service personnel files; VA treatment records dated from January 2003 to February 2009; lay statements from the Veteran's sister, sister-in-law, a retired Air Force major, and a former member of the security police at the Udorn base in Thailand; correspondence from Dr. R.M.C. dated in July 2009 concluding that it was more likely than not that the Veteran's diabetes was caused by exposure to Agent Orange during service; November 2008 VA correspondence apparently sent in error to the Veteran informing him that he was stationed in Vietnam during service; copies of studies entitled "Herbicide Use in Thailand - The Relationship to the Rules of Engagement (ROE) and Use in Vietnam and Laos" and "The Routes To and From Southeast Asia Go Through Vietnam" both by Kurt Priessman, M. Sgt., USAF (ret.); an unclassified copy of a Project CHECO report on Southeast Asia concerning Base Defense in Thailand; photographic evidence of the base at Udorn; congressional correspondence related to use of herbicides in Thailand; copies of articles on dioxins and Agent Orange, U.S. sorties over Laos, use of herbicides in Laos, and CIA spraying of dioxins in Southeast Asia; copies of VA regulations and prior Board cases concerned with herbicide exposure in Southeast Asia during the Vietnam era; transcripts of the Veteran's August 2009 RO hearing and December 2009 Board hearing; and written statements from the Veteran and his attorney. The evidence received subsequent to the December 2004 RO decision is new, in that it was not previously of record, and is also material to reopening the Veteran's claims for diabetes, diabetic retinopathy, and peripheral neuropathy of the lower and upper extremities. As noted above, presumptive service connection for diabetes had been denied because there was no evidence the Veteran had served in Vietnam. Subsequent to the final December 2004 decision, the Veteran testified about stopover flights in Vietnam while stationed at an Air Force base in Thailand and his exposure to dioxins while working as an aircraft mechanic at the Udorn base in Thailand. Copies of lay statements from relatives, a friend, and a former member of the security police detail at the Udorn base provide evidence of the Veteran's stopover flights in Vietnam and the presence of dioxins at the Udorn base. The July 2009 correspondence of Dr. R.M.C. provided a medical opinion relating the Veteran's currently diagnosed diabetes to exposure to Agent Orange while in service. Presumed credible, this newly- received evidence is material in that it raises a reasonable possibility that the Veteran may have been exposed to herbicides in Vietnam or at his base in Thailand. That evidence, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. It raises a reasonable possibility of establishing the claim for diabetes. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Likewise, this new and material evidence, because it raises a reasonable possibility that the Veteran may have been exposed to herbicides in Vietnam or at his base in Thailand, when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claims for diabetic retinopathy and peripheral neuropathies of the lower and upper extremities as secondary to diabetes. See Kent, 20 Vet. App. at 10. In addition, the evidence submitted subsequent to the December 2004 RO decision is new and material concerning the Veteran's claim for service connection for depression. As noted above, that claim was initially denied as there was no evidence of a current diagnosis. Subsequent to the final December 2004 decision, VA medical records show a diagnosis of a moderate recurrent depressive disorder in February 2007 and an August 2008 VA medical record shows the Veteran has a history of recurrent depression. Presumed credible, the additional evidence received since the December 2004 RO decision reflects a current depressive disability. Id. at 10. This new and material evidence, because it raises a reasonable possibility that the Veteran has a currently diagnosed psychiatric disorder, when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate his service connection claim for depression. See Kent, 20 Vet. App. at 10. Therefore, the evidence submitted since the final December 2004 RO decision relates to unestablished facts necessary to substantiate the claims involved, and raises a reasonable possibility of substantiating each claim previously denied. Accordingly, the Board finds that the claims for service connection for diabetes and depression are reopened as are the secondary service connection claims for diabetic retinopathy and peripheral neuropathy of the lower and upper extremities. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Section 1116(a) of Title 38 provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. The following diseases are associated with herbicide exposure for the purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Generally, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection may be established on a secondary basis 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) (2009). 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 by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2009); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Diabetes Mellitus The Veteran attributes his diabetes mellitus, type II, to Agent Orange exposure. He contends that he was exposed to Agent Orange while in service at the Royal Thai Air Force Base at Udorn, Thailand, between October 1968 and August 1969 because he had stopover flights in Vietnam to and from Thailand and because he was exposed to herbicides along the perimeter of the air base at Udorn. Service treatment records are negative for any complaints of, or treatment for, diabetes mellitus. VA medical records associated with the claims file confirm a diagnosis of diabetes mellitus, type II, in 1987, thereby satisfying the first element of the Veteran's service connection claim. Initially, the Board acknowledges that diabetes is a disability which is afforded a presumption of exposure to herbicides. However the presumption of exposure to herbicides is commonly for all Veterans who served in Vietnam during the Vietnam Era; no such presumption exists under VA regulations for Veterans stationed in Thailand during the Veteran's period of service. 38 C.F.R. § 3.307(a)(6)(iii). Service personnel records reveal that the Veteran's last duty assignment was as a jet aircraft mechanic stationed at Udorn Airfield in Thailand from October 1968 to August 1969. A September 2004 service department record noted that it was unable to verify whether or not the Veteran had in-country service in the Republic of Vietnam. The Board notes that correspondence from VA to the Veteran notifying him that he had service in Vietnam was sent in error and the Veteran is cognizant of this fact. The Veteran has submitted copies of two studies by Kurt Priessman, M. Sgt., USAF (ret.) entitled "The Routes To and From Southeast Asia Go Through Vietnam" and "Herbicide Use in Thailand - The Relationship to the Rules of Engagement (ROE) and Use in Vietnam and Laos". In the aircraft flight study, Priessman argued that the routing of military and military-contracted flights between the continental United States and Southeast Asia tried to use flight paths as close as possible to the trade winds and jet streams which move from west to east and that Tan Son Nhut Air Base in Vietnam was one of the bases used for refueling as aircraft "hopped" across the Pacific Ocean. In the herbicide study, Priessman discussed two "Ranch Hand" missions flown from Udorn Air Base in November 1968 and August 1969 when UC-123Ks sprayed herbicides in neighboring Laos. The 1968 mission involved four days of spraying and the 1969 mission involved 28 sorties in a seven-day period. The Veteran also submitted a Project CHECO study on base defense in Thailand. CHECO is an acronym for Contemporary Historical Evaluation of Combat Operations by Air Force historians. The study discussed base security after the attack at Udorn in July 1968 and noted that defoliation was one of the needs identified for additional perimeter defenses at air bases in Thailand. The report noted that the perimeter at Udorn was very close to the aircraft at several points and that a long section of the perimeter was shared with commercial airlines, including the CIA's Air America. The claims file also contains a signed statement from S.D.P., who served with the U.S. Air Force security police K-9 section at the Udorn base in Thailand from September 1968 to October 1969, overlapping the Veteran's period of duty at the same air base. S.D.P. wrote that he and his dog usually patrolled different areas of the base during the overnight hours, including the ammo dump which contained hundreds of barrels of chemicals. During his year at Udorn, he noticed choppers spraying defoliants with bad smells and subsequent dying vegetation that turned brown. During his RO hearing in August 2009 and Board hearing in December 2009, the Veteran testified about flight stopovers in Vietnam and his claimed exposure to defoliants such as Agent Orange around the perimeter of the Udorn base. He said that he flew to the Udorn base in Thailand in the fall of 1968. There were refueling stops in Alaska, Japan, and at the Tan Son Nhut Air Force Base in Vietnam, where people were offloaded and loaded before the plane continued on to Bangkok. He said he was at Tan Son Nhut for an hour, but did not deplane. He also testified that he had been unsuccessful in trying to obtain copies of travel and pay records. (See RO hearing transcript at pp. 2-4; Board hearing transcript at pp. 4-5, 7-9). On his trip home at discharge, the Veteran said that he flew in a C130 out of Udorn that stopped at the Ubon, Thailand, base before landing at Tan Son Nhut in Saigon. There he got on another transport and flew back home about four hours later. While deplaned in Vietnam, the Veteran said that he went into the terminal, sat around and waited for his flight. (See RO hearing transcript at pp. 14-15; Board hearing transcript at p. 12). The Veteran's former service representative testified during the Board hearing that he too served with the Air Force in Thailand about this time and had stops in Anchorage, Alaska, and Tan Son Nhut air base in Vietnam when he was sent to Thailand. He said that it was a common practice at the time. (See Board hearing transcript at pp. 27-28). The Veteran also testified that he remembered the base at Udorn in Thailand being sprayed continuously. He stated that spraying occurred somewhere everyday with defoliant. Before he arrived defoliation efforts began inside the base perimeters in response to a sapper attack on the base in July 1968. The Veteran also testified that he worked at both ends of the runway and in the taxiway because he towed aircraft as well as performed maintenance chores. The run up pad where he worked on aircraft engines was only about 50 yards from the perimeter and one night he was directly sprayed with a defoliant when his aircraft was sitting on the run up pad. He said the area where he and his unit performed runway checks on departing bombers was also sprayed and he would walk through it. (See RO hearing transcript at pp. 24-29; Board hearing transcript at pp. 13-18). The Veteran further testified that missions were flown out of Udorn to spray Agent Orange. These were known as Ranch Hand missions. He spoke about two documented missions, one in November 1968 and one in August 1969, that involved Agent White, which he said was much stronger than Agent Orange. The Veteran also claimed that the CIA's Air America ran a defoliation program from a base about a quarter of a mile from where his aircraft were located. He also pointed out that the base was not air- conditioned and screened-in windows were used in the barracks. (See Board hearing transcript at pp. 18-19, 22). July 2009 correspondence from Dr. R.M.C., a specialist in internal medicine, indicated that the physician had reviewed the medical records and the Veteran's history. Dr. R.M.C. noted that the Veteran had no known history of risk factors, such as obesity or a family history of diabetes. He wrote that it was his medical opinion that it was at least as likely as not that the Veteran's current medical condition was caused by exposure to Agent Orange during military service. A December 2009 signed statement by the Veteran's sister revealed that the Veteran returned early to the United States in August 1969 because their father had suffered a heart attack. During the two-hour drive home from the airport in Arkansas, she wrote that the Veteran specifically mentioned his return trip, which included a four hour layover in Saigon. A December 2009 signed statement from the Veteran's sister-in-law noted that she spent several hours talking with the Veteran after his return home and that he mentioned one specific stay in Saigon for over four hours. A December 2009 signed statement from G.M.M. Jr., a retired Air Force major and post-service friend of the Veteran, noted that he and the Veteran had discussed their experiences in Southeast Asia many times. He recalled that the Veteran had described stopovers in Saigon on his way to and from Thailand in 1968 and 1969. In this case, the Veteran's credible statements, in conjunction with his service personnel records and supporting lay statements, indicate that he likely entered Vietnam during his period of active service. His account of landing for stopovers in Vietnam, on his flight to Thailand in the fall of 1968 and his flight back to this country in August 1969, appear credible in view of the recollections of his sister-in-law, sister, and friend. They wrote that when the Veteran returned to this country he had remarked on stopovers in Vietnam. While there is no explicit evidence that the Veteran ever set foot in Vietnam, there is no evidence of record to contradict his statement or the statements of the others, or to otherwise indicate that he did not spend time in Vietnam while traveling between the United States and Thailand during his military service. The testimony of his former service representative and the Priessman study noted above, which implied that stopovers for refueling in Vietnam were common practice for military personnel assigned to Thailand duty, lend support to the Veteran's recollections. The Board finds that it must resolve all reasonable doubt regarding this matter in favor of the Veteran and determine that he set foot in Vietnam during his military service. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran was present within the borders of Vietnam during active duty service. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Since the Veteran's Board hearing, his attorney also has introduced a copy of the May 2010 VA Compensation and Pension (C&P) Service Bulletin, which highlights new procedures for claims based on herbicide exposure in Thailand and Korea. The Bulletin notes that the C&P Service has 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 as noted in the Project CHECO Southeast Asia Report: Base Defense in Thailand (a copy of which the Veteran has associated with the claims file). According to the Bulletin, the Department of Defense has provided information that commercial herbicides, rather than tactical herbicides, were used within the confines of Thai bases to control weeds; these commercial herbicides do not fall under VA's regulations governing presumptive service connection for certain diseases. However, the Bulletin notes that there is some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or were a commercial variant of much greater strength and with characteristics of tactical herbicides. Therefore, the C&P Service now has determined that a special consideration of herbicide exposure on the facts found or direct basis should be extended to Veterans whose duties placed them on or near the perimeters of Thai military basis. This permits presumptive service connection of the diseases associated with herbicide exposure, such as diabetes. The Udorn base is specifically mentioned in the Bulletin as one of the places where U.S. troops were stationed in Thailand during the period between February 1961 and May 1975. In this case, though the Board has determined that the Veteran was present within the borders of Vietnam during service, it also finds that the evidence is in equipoise as to whether he was also exposed to tactical herbicides such as Agent Orange at the Udorn air base in Thailand from October 1968 to August 1969. The May 2010 C&P Bulletin noted above cannot definitely rule out that the Defense Department used tactical herbicides at Udorn at the time the Veteran was stationed there. The Veteran testified credibly that he worked at the run up pad some 50 yards from the base perimeter where defoliants were sprayed and that he himself was once sprayed accidentally in that area of the base. Further, documentary materials he assembled and associated with the claims file support the conclusion reached in the Bulletin that significant use of herbicides occurred along the perimeter at Thai bases at this time. The lay statement of S.D.P., a former security officer at the base, suggests wide use of herbicides at Udorn at the time of the Veteran's duty in Thailand. Therefore, based on the record as a whole, the Board finds that, resolving any doubt in the Veteran's favor, the Veteran was exposed to herbicides while serving in Udorn. As the Board finds that the Veteran entered Vietnam during his active service and was exposed to tactical herbicides at the Udorn base in Thailand, he is entitled to service connection for his claimed disability of diabetes mellitus, type II, on a presumptive basis. The Board reiterates that service connection is only warranted on this presumptive basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e) as listed above. As previously noted, the evidence shows that the Veteran was diagnosed with diabetes mellitus, type II, in 1987. As the Veteran's diagnosed disability is among the diseases recognized under 38 C.F.R. § 3.309(e) associated with exposure to certain herbicide agents, presumptive service connection on the basis of herbicide exposure is warranted. Accordingly, the appeal as to this issue is granted. Diabetic Retinopathy and Peripheral Neuropathy of the Lower and Upper Extremities Where neither the Veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. The Veteran specifically maintains that service connection is warranted for diabetic retinopathy and peripheral neuropathy of his lower and upper extremities as secondary to his service- connected diabetes mellitus. He has not contended, and the evidence does not suggest, that his retinopathy and peripheral neuropathy had their onset during service. Therefore, direct service connection will not be discussed. Robinson v. Mansfield, 21 Vet. App. 545 (2008). A review of the medical evidence of record indicates that the Veteran's current retinopathy and peripheral neuropathy disorders are proximately due to his service-connected diabetes mellitus. Medical evidence in the claims file indicates that the Veteran has been diagnosed and treated for proliferative diabetic retinopathy and diabetic neuropathies. A June 2008 VA medical record noted that the Veteran had peripheral neuropathy at the mid-thigh bilaterally, the mid-forearm on the right, and to the elbow on the left side, and that his diabetic neuropathy at present did not include any radiculopathy. Further, in this decision the Veteran has been service-connected for diabetes mellitus, type II. Though there is evidence of a current disability for each of these claims, no VA examination or medical opinion had previously been sought to note the connection between retinopathy and diabetes and between peripheral neuropathy of each of the extremities and diabetes. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for diabetic retinopathy and diabetic neuropathy as secondary to his service-connected diabetes mellitus have been met and that the criteria for service connection for retinopathy and peripheral neuropathy of the lower and upper extremities as secondary to his service-connected diabetes mellitus have been met. See 38 C.F.R. §§ 3.102, 3.310. There can be no doubt that further inquiry could be undertaken with a view towards development of these claims. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). In this matter, the Board is of the opinion that this point has been attained for these secondary service connection claims. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Thus, the appeal for secondary service connection for diabetic retinopathy and for peripheral neuropathy of the lower and upper extremities is granted in this instance. Bruising and Fragile Skin and High Cholesterol The Veteran also seeks service connection for bruising and fragile skin and for high cholesterol, to include as secondary to his service-connected diabetes mellitus. The Board notes that service treatment records are negative for either claimed condition. VA medical records associated with the claims file show the Veteran has had bruising and fragile skin related to his insulin shots. In addition, they reportedly show a history of high cholesterol levels by blood work testing. However, the Board finds that service connection cannot be awarded on a presumptive basis for the Veteran's claimed bruised and fragile skin or for high cholesterol because these conditions are not included in the enumerated list of diseases eligible for presumptive service connection as due to herbicide exposure. See 38 C.F.R. § 3.309(e). The Board notes there is no positive association between exposure to herbicides and any condition for which the Secretary of VA has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994). Further, the Veteran has alleged that these conditions are related to his service-connected diabetes. The Board finds that service connection on either a direct or secondary basis for the Veteran's bruised and fragile skin and for high cholesterol must be denied. While post-service treatment records indicate that the Veteran has both of these conditions, service connection can only be granted for a disability resulting from disease or injury. 38 U.S.C.A. § 1110. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating in supplementary information preceding a final rule amending the criteria for evaluating endocrine system disabilities indicates that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory test results, and are not, in and of themselves, disabilities); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (noting that based on the definition found in 38 C.F.R. § 4.1, the term disability "should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself"). Bruised and fragile skin is, in this case, one symptom of the Veteran's diabetes disability, and high cholesterol is a laboratory finding that manifests itself only in laboratory test results; neither is a disability for which service connection can be granted. See 38 C.F.R. § 3.303. Accordingly, because the Veteran does not have a current disability for which service connection may be granted, the Board concludes that service connection for bruised and fragile skin and service connection for high cholesterol are not warranted and must be denied. ORDER New and material evidence having been received, the claim for service connection for diabetes mellitus, type II, is reopened. New and material evidence having been received, the claim for service connection for diabetic retinopathy as secondary to diabetes mellitus is reopened. New and material evidence having been received, the claim for service connection for peripheral neuropathy of the lower extremities as secondary to diabetes mellitus is reopened. New and material evidence having been received, the claim for service connection for peripheral neuropathy of the upper extremities as secondary to diabetes mellitus is reopened. New and material evidence having been received, the claim for service connection depression is reopened. Service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is granted. Service connection for diabetic retinopathy as secondary to diabetes mellitus is granted. Service connection for peripheral neuropathy of the lower extremities as secondary to diabetes mellitus is granted. Service connection for peripheral neuropathy of the upper extremities as secondary to diabetes mellitus is granted Service connection for bruised and fragile skin, to include as secondary to diabetes mellitus, is denied. Service connection for high cholesterol, to include as secondary to diabetes mellitus, is denied. REMAND Unfortunately, a remand is required in this case as to the remaining issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2009). Having reopened and granted the claim for service connection concerning diabetes melllitus, the Board finds that further development for the remaining claims and other reopened claims is necessary. Specifically, VA examinations and medical opinions are necessary. See 38 C.F.R. § 3.159 (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present appeal, the Veteran has not asserted direct service connection for his service connection claims related to an acquired psychiatric disorder, anemia, hypertension and erectile dysfunction, but contends they are all secondary to his service-connected diabetes. Indeed, service treatment records are negative for any indication of these claimed disorders. The Board notes that VA treatment records in the claims file show that the Veteran's medical history includes moderate recurrent depressive disorder, anemia, hypertension, and erectile dysfunction. However, no VA examination has been undertaken and no medical opinion is found in the claims file discussing whether any of these disorders are related to his service-connected diabetes or to service. Therefore, on remand the RO must schedule the Veteran for VA examinations for each claimed disorder to determine if any are related to service or to his service-connected diabetes. The RO also should obtain and associate with the claims file all outstanding VA and private medical records related to the Veteran's acquired psychiatric disorder, anemia, hypertension, and erectile dysfunction. The claims file contains VA medical records from VA's Central Arkansas Health Care System dated through February 2009. Therefore, any additional records from the Little Rock VA Medical Center should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Additionally, the Veteran should be provided with proper VCAA notice regarding VA's duties to notify and assist that includes information on substantiating secondary service connection claims. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159(b) (2009) are fully complied with and satisfied. In particular, the Veteran should receive proper notice of the information and evidence needed to substantiate his secondary service connection claims pursuant to 38 C.F.R. § 3.310 (2009). 2. The RO shall contact the Veteran and his attorney and obtain the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, who treated the Veteran for his psychiatric complaints, anemia, hypertension, and erectile dysfunction and whose records are not found within the claims file. Of particular interest are any outstanding records of evaluation and/or treatment from the Central Arkansas Health Care System, for the period from February 2009 to the present. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder should be obtained and associated with the claims folder. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all outstanding records have been associated with the claims file, the RO shall afford the Veteran appropriate VA examinations to ascertain whether his claimed acquired psychiatric disorder, anemia, hypertension, and erectile dysfunction are related to service or to his service- connected diabetes mellitus. The entire claims file and a copy of this Remand must be reviewed by each examiner in conjunction with conducting his or her examination. Any and all indicated evaluations, studies and tests deemed necessary by each examiner should be accomplished. All findings should be reported in detail. Each examiner is requested to review all pertinent records associated with the claims file, and following this review, should identify all current diagnoses referable an acquired psychiatric disorder, anemia, hypertension, and erectile dysfunction. Thereafter, the examiner should offer an opinion as to the following: (a) For each currently diagnosed disorder, whether it is at least as likely as not (a 50 percent probability or more) that any such diagnosed disorder is related to any event or incident in service, to include herbicide exposure. (b) For each currently diagnosed disorder, whether it is at least as likely as not (a 50 percent probability or more) that any such diagnosed disorder is caused or aggravated by service-connected diabetes mellitus. If the examiner determines that a there has been aggravation as a result of diabetes mellitus, the examiner should report the baseline level of severity of the Veteran's current disorder (i.e., acquired psychiatric disorder, anemia, hypertension, and erectile dysfunction) prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. In offering any opinion, the examiner must consider the full record, to include all lay statements of record regarding the incurrence of the Veteran's claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. 4. Thereafter, the RO shall take such additional development action with respect to the claims as it deems proper. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence and readjudicated. If the benefits sought are not granted, the Veteran and his attorney should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs