Citation Nr: 1115454	
Decision Date: 04/20/11    Archive Date: 05/04/11

DOCKET NO.  09-38 528	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type 2, including as due to in-service herbicide exposure.

2.  Entitlement to service connection for diabetic retinopathy.

3.  Entitlement to service connection for erectile dysfunction, including as secondary to diabetes mellitus, type 2.

4.  Entitlement to service connection for peripheral neuropathy, right upper extremity, including as secondary to diabetes mellitus, type 2.

5.  Entitlement to service connection for peripheral neuropathy, right lower extremity, including as secondary to diabetes mellitus, type 2.

6.  Entitlement to service connection for peripheral neuropathy, left upper extremity, including as secondary to diabetes mellitus, type 2.

7.  Entitlement to service connection for peripheral neuropathy, left lower extremity, including as secondary to diabetes mellitus, type 2.

8.  Entitlement to service connection for a heart disorder, claimed as autonomic neuropathy heart with high blood pressure, to include as secondary to diabetes mellitus, type 2.

9.  Entitlement to service connection for hypertension, claimed as secondary to heart disorder, to include as secondary to diabetes mellitus, type 2.


ATTORNEY FOR THE BOARD

A. Adamson, Counsel


INTRODUCTION

The Veteran served on active duty from June 1961 to April 1982.  

This matter comes before the Board of Veterans' Appeals (BVA) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The issue of entitlement to service connection for diabetes is decided below, and the remaining eight issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  It is as likely as not that the Veteran set foot in Vietnam while in service during the Vietnam Era and is thus presumed to have been exposed to herbicide agents.

2.  The medical evidence shows that the Veteran's diabetes mellitus type 2 is compensably disabling.


CONCLUSION OF LAW

The criteria for establishing service connection for diabetes mellitus type 2 have been met.  38 U.S.C.A. §§ 1110, 1116, 1154(a), 51079b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants service connection for diabetes mellitus type 2, which represents a complete grant of the benefit sought on appeal.  Thus, no discussion of VA's duties to notify and assist is required.

The Veteran is seeking to establish service connection for diabetes mellitus.  He asserts exposure to Agent Orange either presumptively based on his presence in-country in Vietnam during a stopover between being stationed in Thailand and being stationed in Taiwan, or based on exposure to Agent Orange that was sprayed on or around bases where he was stationed in Thailand.  See October 2008 statement and April 2009 Notice of Disagreement (NOD).

Entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a); see also Pond v. West, 12 Vet. App. 341, 346 (1999).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection may also be granted on a presumptive basis for certain chronic disabilities, including diabetes mellitus, when manifested to a compensable degree within the initial post-service year.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service connected.  Those diseases include Type 2 diabetes mellitus. See 38 U.S.C.A. § 1116 (West 2002), 38 C.F.R. § 3.309(e) (2010).  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. See 38 U.S.C.A. § 1116(f) (West 2002), 38 C.F.R. § 3.307(6)(iii) (2010). Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  See 38 U.S.C.A. § 1116(a)(3) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2010).

Although the Veteran's Service Personnel Records (SPRs) and his DD Form 214 confirm the Veteran served in a foreign country during the Vietnam Era, the documents indicate that this foreign service was in Thailand and then in Taiwan, but not in Vietnam.  The Veteran, however, reports setting foot in Vietnam in connection with flights from Thailand to Taiwan.  The Veteran states that he stopped there to "pick up supplies, rest, refuel."  See Oct 2008 statement and April 2009 NOD.  

The Veteran's service personnel records show that he served in Thailand from October 1967 to December 1969 and that his military occupational specialty (MOS) was aircraft maintenance technician.  Further, his service personnel records show that the Veteran was recognized on numerous occasions for his hard and high-quality work and for his commitment to the mission, and that his duties as a crew chief included performing launch, recovery, defueling, refueling and phase inspections on assigned aircraft.  

Based on the Veteran's duties and responsibilities, the Board finds that the likelihood that the Veteran may have been a crew member of an aircraft that would have dropped off and picked up passengers and supplies while traveling to and from Thailand and Taiwan and landing in the Republic of Vietnam is consistent with his service.  Further, the Board finds the Veteran's account that he set foot in Vietnam while on such missions during service is consistent with his service record.  In addition, given the documentation in his service personnel records, the Board finds the Veteran a credible historian.  Thus, although there is no definitive objective service record in the claims folder showing the dates and other details relating to the Veteran's stops in Vietnam between Thailand and Taiwan, the Board finds that it is as likely as not that the Veteran did, in fact, set foot in Vietnam while in service.  Thus, resolving all reasonable doubt in his favor, the Board finds that he served in the Republic of Vietnam during the Vietnam Era.

Finally, the Veteran's private treatment records show that he has been diagnosed as having diabetes mellitus type 2, which is compensably disabling.  Thus, because he is presumed to have been exposed to herbicides during the Vietnam Era, and because he has a current diagnosis of diabetes mellitus that is compensably disabling, service connection for diabetes mellitus type 2 is warranted.


ORDER

Service connection for diabetes mellitus is granted.


REMAND

The Veteran is seeking to establish service connection for diabetic retinopathy; 
erectile dysfunction; peripheral neuropathy of the right upper, right lower, left upper and left lower extremities; a heart disorder, claimed as autonomic neuropathy heart with high blood pressure; and for hypertension, claimed as secondary to heart disorder.  Each of these disabilities is claimed to be secondary to either the Veteran's diabetes, or his heart disorder.  Service connection is warranted for a disability that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2010).  

To date, the Veteran has not been afforded a VA examination to determine the etiology of the claimed disability, including whether they are secondary to diabetes.  In light of the Board's determination that service connection is warranted for diabetes mellitus type 2, the Board finds that a VA examination, with an opinion addressing whether any of the Veteran's pending claims are related to his service-connected diabetes mellitus type 2 or are otherwise due to or  had their onset in service, is necessary to adjudicate this appeal.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

As to the Veteran's heart disability claim, the Board notes that during the course of this appeal, VA added three disabilities to the presumptive disabilities listed in 38 C.F.R. § 3.309(e) as presumptively service connected for Veteran's exposed to herbicides in service.  Specifically, on August 31, 2010, the Secretary of Veterans Affairs published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish presumptions of service connection for ischemic heart disease, Parkinson's disease, and chronic B cell leukemias.   75 Fed. Reg. 53,202 (August 31, 2010).  The final rule is applicable to claims pending before VA on August 31, 2010.  Id.  Therefore, the Board finds the amended regulation applies to the current claim.  In this case, the Veteran claims service connection for a heart disorder, the nature of which is unclear from the record.  During the examination, it must be determined if the Veteran has ischemic heart disease.

Accordingly, the case is REMANDED for the following action:

1.  After associating any pertinent, outstanding records with the claims folder, afford the Veteran an appropriate VA examination to determine the nature and etiology of the Veteran's remaining claimed disabilities, including a determination as to whether each is causally connected to his diabetes mellitus.  In particular, the examiner should review the pertinent evidence in the claims file, examine the Veteran, elicit a complete history and offer a diagnosis.  If the claimed disability is shown, the examiner should address whether it is at least as likely as not that diabetes mellitus has caused the disability.  If that answer is in the negative, the examiner must state whether it is at least as likely as not that the Veteran's diabetes mellitus aggravated the condition.  

The VA examiner should also characterize the nature of any heart disorder shown on examination and testing, including a determination as to whether the Veteran has any sort of ischemic heart disease.

The examiner should offer a rationale for any conclusion in a legible report.  

2.  Then readjudicate the Veteran's appeal.  If the benefits sought on appeal remain denied, the Veteran should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond.

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).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2010).



______________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs