Citation Nr: 1115721 Decision Date: 04/21/11 Archive Date: 05/04/11 DOCKET NO. 98-16 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a lung disability, claimed as due to herbicides exposure. 2. Entitlement to service connection for a skin disability, claimed as due to herbicides exposure. 3. Entitlement to service connection for a heart disability, claimed as due to herbicides exposure. 4. Entitlement to service connection for prostate cancer, claimed as due to herbicides exposure. 5. Entitlement to service connection for diabetes mellitus type II, claimed as due to herbicides exposure. REPRESENTATION Appellant represented by: Robert A. Laughlin, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In a September 2002 decision, the Board denied service connection for diabetes mellitus type II, chronic lung disorder, chronic skin disorder, and heart disorder. In an October 2003 order, the United States Court of Appeals for Veterans Claims ("Court") endorsed a joint motion for remand and vacated the part of the September 2002 decision that denied service connection for a chronic lung disorder, for a chronic skin disorder, and for a heart disorder. While the matter above was pending, the appellant perfected appeals with respect to the claim for service connection for prostate cancer and his application to reopen his previously denied claim of service connection for diabetes mellitus. In January 2006, the Board remanded these issues as well as the issues of entitlement to service connection for a lung disability, service connection for a skin disability, and service connection for a heart disability to the RO further development and due process considerations. In October 2008, the Board notified the appellant that his claims were subject to a stay on the adjudication of cases affected by the decision of the court in Haas v. Nicholson, 20 Vet. App. 257 (2006). In June 2009, the Board reopened the Veteran's claim for service connection for diabetes mellitus and remanded the issues of service connection for diabetes mellitus, lung disability, skin disability, heart disability, and prostate cancer for further development including contacting Omaha VA Medical Center (VAMC) and requesting VA treatment records from February 2008 to the present, contacting the Social Security Administration (SSA) to obtain records, verifying pesticides used for mosquito eradication or other pest control at the Ubon Air Force Base, and affording a VA examination with respect to the aforementioned issues. As a preliminary matter, the Board finds that the remand directives have been substantially completed, and, thus, a new remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998), Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran was afforded two hearings in conjunction with the appeal. A hearing was held in August 2005 before Barbara B. Copeland, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). The Veteran was afforded another hearing in July 2008, before Kathleen K. Gallagher, another Veterans Law Judge. The transcripts of the hearings are associated with the claims file. Based on the foregoing, this decision will be signed by a panel including each Judge that presided over a hearing. See 38 C.F.R. § 20.707 (2010). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a lung disability and entitlement to service connection for a skin disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO for appropriate action. FINDINGS OF FACT 1. The medical evidence of record shows that the Veteran has current diagnoses of coronary artery disease, prostate cancer, and diabetes mellitus type II. 2. Resolving the benefit of the doubt in favor of the Veteran, the Veteran was exposed to herbicide agents during active military service. The evidence therefore links the Veteran's coronary artery disease, prostate cancer, and diabetes mellitus type II, to his in-service herbicide exposure. CONCLUSIONS OF LAW 1. Coronary artery disease is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010). 2. Prostate cancer is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010). 3. Diabetes mellitus type II is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA is required to meet the notice and duty to assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Without deciding whether these notice and development requirements have been satisfied in the present case, it is the Board's conclusion that the law does not preclude the Board from adjudicating the Veteran's claims. This is so because the Board is taking action favorable to the Veteran by granting service connection for coronary artery disease, prostate cancer, and diabetes mellitus type II. Further discussion of VA's duties to notify and assist is not required. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (1992). LAW AND ANALYSIS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, 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 soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 75 Fed. Reg. 53202. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a regulatory established presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" means that a claimant must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). In consideration of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for prostate cancer, diabetes mellitus type II, and coronary artery disease. The medical evidence shows that the Veteran has been diagnosed with diabetes mellitus type II since 1995. In addition, the evidence shows that the Veteran was diagnosed with coronary artery disease in the 2000s and had suffered a myocardial infarction in 1987. The medical evidence reveals that the Veteran was diagnosed with prostate cancer in 2000. The March 2010 VA examination report noted that the Veteran underwent a radical prostatectomy in the 2001 timeframe. Following the surgery, the Veteran has persistent urinary incontinence. The Veteran has contended that his disabilities are related to his period of active service based on his alleged exposure to pesticides, insecticides, and herbicides. For the purposes of the decision herein, the Board has found that the Veteran is entitled to the presumption of service connection due to herbicides exposure and, therefore, the other bases and arguments for service connection will not be discussed. The Veteran has stated that he was exposed to herbicides during his service in Thailand. The personnel records show that the Veteran was stationed in Thailand from May 1967 to June 1968. The Veteran submitted a sworn affidavit in July 2010 and stated that he was stationed at the U.S. Air Force Base (AFB) in Ubon, Thailand. He stated that his day to day duties placed him "on or near the perimeters of the Ubon Thailand military base." He stated that he worked in a command center in Ubon, as a communications specialist, encrypting and decrypting classified, top secret information. He explained that the air strip was right next to his building on the base, less than 20 yards away and that the perimeters were just on the other side of the flight line. The Veteran further explained that the command center was right on the flight line and that the jungle was cleared out to build a new barracks. In a statement from the Veteran's fellow serviceman, R.L., he stated that their building was right on the flightline -on the runway. The claims file includes a copy of the Compensation and Pension Service (C&P) Memorandum for the Record. The memorandum notes that a listing of herbicide use and test sites outside Vietnam provided by the Department of Defense (DoD) was reviewed. The list contained 71 sites within the U.S. and in foreign countries where tactical herbicides were stored. It was noted that the DoD list indicated that limited testing of tactical herbicides was conducted in Thailand from April to September 1964. Specifically, the location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. It was noted that tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. In addition, there were no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. It was noted that there was a great likelihood of exposure to commercial pesticides, including herbicides for those who had regular contact with the base perimeter. The Veteran's attorney has also introduced a copy of the May 2010 VA 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 bases. This permits presumptive service connection of the diseases associated with herbicide exposure, such as diabetes. The Ubon base, where the Veteran was stationed, 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. The May 2010 C&P Bulletin noted above cannot definitely rule out that the Defense Department used tactical herbicides at Ubon at the time the Veteran was stationed there. The Veteran testified credibly that he worked right near the perimeters of the base, which was located right near the air strip. Further, the Veteran included photographs of the command center to attempt to show its location on the airfield and its apparent proximity to the perimeters of the base. The Veteran also included a dvd of the Ubon AFB, although it does not definitively show how close the command center was to the perimeters of the base. Finally, the lay statement of R.L. also noted that the communications center was located on the air strip. The Veteran has demonstrated that a portion of his service was located in close proximity to the base perimeter, which the bulletin particularly notes as service "for which herbicide exposure should be acknowledged[.]" Furthermore, the record contains no evidence that would lead the Board to question the Veteran's credibility, or his claims to serving near the perimeters of the base as noted. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). 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 Ubon. Since the Veteran was exposed to tactical herbicides at the Ubon base in Thailand, he is entitled to service connection for his claimed coronary artery disease, prostate cancer, and 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 coronary artery disease (or ischemic heart disease as defined by section 3.309), prostate cancer, and diabetes mellitus type II. As the Veteran's diagnosed disabilities are 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 for coronary artery disease, prostate cancer, and diabetes mellitus type II are granted. ORDER Entitlement to service connection for coronary artery disease is granted. Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for diabetes mellitus type II is granted. REMAND Reason for Remand: To obtain new VA examinations. Here, with respect to the Veteran's claims for service connection for a lung disability and skin disability, the Veteran was afforded a VA examination in March 2010. The Veteran has contended that his lung disability and skin disability are related to herbicides, insecticides, and/or pesticides exposure during his period of active service. In the March 2010 VA examination report, the examiner noted that the Veteran's lung disability shows that the Veteran has a history of chronic obstructive pulmonary disease (COPD). The examiner stated that an associated problem was heart disease. With respect to the Veteran's skin disability, it was noted that the Veteran had xerosis or dry skin. The Veteran also had irritant contact dermatitis in the groin area and perineum secondary to persistent urinary incontinence. The examiner opined that the lung disability and skin disability were less likely as not caused by or a result of active military duty including exposure to insecticides. Specifically, the examiner stressed that the variables were not known in this particular situation including the specific toxin to which the Veteran was possibly exposed. Given the information provided to the examiner for review, he knew only that the Veteran had a probability of being exposed to a commercial, non-tactical insecticide, and/or herbicide. The examiner was unable to find any medical literature or research which would provide evidence-based results that could be applied in this instance to support that the Veteran's current COPD and xerosis was due to, a result of, or represented a complication or long-term sequelae of possible exposure to an unknown non-tactical commercial herbicide and/or insecticide in Thailand in the 1967 to 1968 timeframe. It was noted that given the fact that there were unknown variables with regards to the Veteran's possible toxin exposure, it was within the realm of medical possibility that his currently claimed conditions were related to some possible toxic exposure that may have occurred while on service, however, the preponderance of evidence would suggest that it is less likely as not that the Veteran's currently claimed lung disability and skin disability were due to or a result of possible insecticide and/or herbicide exposure that may have occurred on active military duty. In reviewing the examiner's opinion, the Board recognizes that the examiner used a "preponderance of the evidence" standard when discussing whether the Veteran's disabilities are related to service. However, this is a legal standard used by the Board and is not the language used by VA examiners to address whether a Veteran's disabilities are causally or etiologically related to service. Instead, examiners are asked to opine whether it is "at least as likely as not" (50 percent likelihood or greater) which is a lower standard than whether a preponderance of the evidence supports the claim. Therefore, the Veteran should be afforded a new VA examination to determine the nature and etiology of his lung disability and skin disability. Finally, the medical evidence suggests that the Veteran's claimed lung disability may be associated with his now service-connected coronary artery disease and that one of his skin disabilities may be related to his service-connected prostate cancer. As a result, the Veteran should be sent an appropriate notification letter with respect to establishing service connection on a secondary basis. 38 C.F.R. § 3.310. 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) (2010). Expedited handling is requested.) 1. Send the Veteran a notification letter with respect to establishing service connection on a secondary basis. 2. The Veteran should be afforded a VA medical examination for the purposes of determining the nature and etiology of his lung disability and skin disability. The claims file must be made available to the examiner for review in conjunction with the examination of the Veteran. The examiner should list all diagnoses with respect to any existing lung disability and any existing skin disability. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that any existing lung disability and skin disability is causally related to the Veteran's active service or any incident therein, including exposure to insecticides and herbicides. The examiner should presume that the Veteran was exposed to herbicides when providing the opinions. In addition, the examiner should opine as to whether it is at least as likely as not that any existing lung disability and skin disability were caused or aggravated by a service-connected disability. By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. When the development requested has been completed, the case should be reviewed by the RO based on the entire record. If the benefits sought are not granted, the Veteran 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 appellant has the right to submit additional evidence and argument on the matter or 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). KATHLEEN K. GALLAGHER BARBARA B. COPELAND Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs