DIABETES MELLITUS

MICHAEL PAPPAS · 2019 · Case ID: A19003558

GRANTED

Summary

The Veteran, who served on active duty from September 1967 to August 1970, appeals the denial of service connection for diabetes mellitus type II with erectile dysfunction and Parkinson's disease, both claimed as secondary to Agent Orange exposure. The Veteran asserts exposure during his service in the Korean Demilitarized Zone (DMZ) from 1968 to 1969. The Board reviewed the Veteran's claims, noting the prior denial of diabetes and erectile dysfunction in 2011 and the subsequent reopening of claims under the Appeals Modernization Act (AMA). The Board found that the Veteran had current diagnoses for both conditions. Regarding the second element of service connection, the Veteran provided his own statements and two contemporaneous buddy statements from fellow servicemembers (a Captain and a Major) corroborating his presence and duties in the DMZ, described as a "Hostile Fire Zone." While the Defense Personnel Records Information Retrieval System (DPRIS) could not locate specific unit records, the Board found the buddy statements highly probative, overriding DPRIS's conclusion and conceding the Veteran's presence in the DMZ. Applying the presumption of herbicide exposure for service in the DMZ during the specified period, and noting that both diabetes mellitus type II and Parkinson's disease are presumptive conditions under 38 C.F.R. § 3.309(e) for herbicide exposure, the Board granted service connection for both conditions. The Board resolved doubt in favor of the Veteran in making these findings.

Rationale

Veteran has current diagnoses of diabetes mellitus type II and erectile dysfunction.; Veteran served in the Korean DMZ from 1968-1969.; Buddy statements corroborated Veteran's presence in DMZ.; Board conceded Agent Orange exposure based on DMZ service and buddy statements.; Diabetes mellitus type II is a presumptive condition for herbicide exposure.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

191115-43479

Full Decision Text

Citation Nr: A19003558
Decision Date: 12/13/19 Archive Date: 12/13/19

DOCKET NO. 191115-43479
DATE: December 13, 2019

ISSUE

1. Whether new and relevant evidence was received to warrant the readjudication of the claim of entitlement to service connection for diabetes mellitus type II with erectile dysfunction as due to exposure to Agent Orange; and if so, if compensation is warranted.

2. Entitlement to service connection for Parkinson’s disease as due to exposure to Agent Orange.

ORDER

New and relevant evidence was received to warrant the readjudication of the claim of entitlement to service connection for diabetes mellitus type II with erectile dysfunction as due to exposure to Agent Orange, and to that extent the claim is granted.

Entitlement to service connection for diabetes mellitus type II with erectile dysfunction as due to exposure to Agent Orange is granted.

Entitlement to service connection for Parkinson’s disease as due to exposure to Agent Orange is granted.

FINDINGS OF FACT

1. Evidence that may prove or disprove the issue of entitlement to compensation for entitlement to service connection for diabetes mellitus type II with erectile dysfunction was received after the January 2011 denial of that issue.

2. Resolving doubt in favor of the Veteran, the Veteran’s unit operated in the Korean Demilitarized Zone (DMZ) between April 1, 1968, and August 31, 1971, thus it may be presumed that the Veteran was exposed to herbicides during active service.

CONCLUSIONS OF LAW

1. The criteria for the readjudication of the claim of entitlement to compensation for diabetes mellitus type II with erectile dysfunction have been met. Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, § 5108, 131 Stat. 1105 (2017).

2. Resolving doubt in favor of the Veteran, service connection for diabetes mellitus type II with erectile dysfunction is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e).

3. Resolving doubt in favor of the Veteran, service connection for Parkinson’s disease is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1967 to August 1970.

The rating decision on appeal was issued in February 2019. The Board notes that the claims of entitlement to service connection for diabetes mellitus type II with erectile dysfunction was previously denied in a January 2011 rating decision. The Veteran was notified of the denial, was informed of his appellate rights with his denial, and did not file a timely appeal, nor submit new and material evidence within one year of the denial. The Veteran did not assert there was clear and unmistakable error. Therefore, the decision became final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). In December 2016 the Veteran requested the reopening of his claims and in a June 2017 rating decision the Agency of Original Jurisdiction (AOJ) reopened the Veteran’s claim for entitlement to service connection for diabetes mellitus type II with erectile dysfunction and denied the claim and denied the claim of entitlement to service connection for Parkinson’s disease. The Veteran timely filed a Notice of Disagreement in October 2017.

In November 2018, the Veteran opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization (RAMP) election form. 84 Fed. Reg. 138, 17 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2 (d)) and selected the Higher Level Direct Review lane in that process.

Accordingly, the February 2019 rating decision considered the evidence of record as of the date VA received the RAMP election form and denied the Veteran’s claims. In the February 2019 rating decision, the AOJ readjudicated the claims of entitlement to service connection for Parkinson’s disease and entitlement to service connection for diabetes mellitus type II with erectile dysfunction and reached a decision on its merits, thereby finding new and relevant evidence sufficient to warrant such readjudication of the claim of entitlement to service connection for diabetes mellitus type II with erectile dysfunction.

In November 2019 the Veteran timely appealed his RAMP
38 C.F.R. § 19.2 (d)) and selected the Higher Level Direct Review lane in that process.

In November 2019 the Veteran timely appealed his RAMP rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ).

The new and relevant evidence issues regarding entitlement to service connection for diabetes mellitus type II with erectile dysfunction has been characterized as such in order to reflect the new evidentiary standard under the AMA. Pub. L. No. 115-55, § 5108, 131 Stat. 1105, 1109. Given the February 2019 RAMP rating decision and the AOJ’s readjudication of such issues on its merits, the Board is bound by the AOJ’s favorable finding of new and relevant evidence sufficient to warrant a readjudication of the claim. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. Thus, the Board need not adjudicate the reopening of the claim again and may proceed on the merits.

Entitlement to service connection for diabetes mellitus type II with erectile dysfunction as due to exposure to Agent Orange is granted; and entitlement to service connection for Parkinson’s disease as due to exposure to Agent Orange is granted.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 110, 1131; 38 C.F.R. § 3.303 (a). Service connection may 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).

Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Certain diseases, such as leukemia and malignant tumors, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third prong of Shedden for certain chronic disabilities such as leukemia and malignant tumor is through a demonstration of continuity of symptomatology.

Pursuant to 38 C.F.R. § 3.309 (e), if a Veteran was exposed to an herbicide agent (including Agent Orange) during active service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 ; 38 C.F.R. § 3.307 (d) are also satisfied. The enumerated diseases include diabetes mellitus type II and Parkinson’s disease.

Where the evidence does not warrant presumptive service connection, a Veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.
shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 ; 38 C.F.R. § 3.307 (d) are also satisfied. The enumerated diseases include diabetes mellitus type II and Parkinson’s disease.

Where the evidence does not warrant presumptive service connection, a Veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). A claimant is permitted to demonstrate in-service incurrence or aggravation through actual evidence of Agent Orange exposure, and a claimant may establish a nexus to service by actual evidence of a link between a present disability and the in-service event. See Combee, 34 F.3d at 1043-44; 38 C.F.R. § 3.303 (d).

For a claimant seeking service connection as a result of herbicide exposure in Korea, VA has provided that the in-service-incurrence-or-aggravation prong is satisfied by a presumption that veterans serving in a qualifying unit between April 1, 1968, and August 31, 1971, were indeed exposed during such service to a qualifying herbicide agent. 38 C.F.R. § 3.307 (a)(6)(iv). Pursuant to § 3.307(a)(6)(iv), the Department of Defense (DoD) has promulgated a list identifying specific qualifying units. The DoD has confirmed that Agent Orange was used along the southern boundary of the Demilitarized Zone (DMZ) in Korea from April 1968 through July 1969. DoD also has identified specific military units that were assigned or rotated to areas along the DMZ where Agent Orange was used. For Veterans who served in Korea from April 1968 through July 1969 in the specific units identified by DoD, exposure to Agent Orange is conceded. The units so identified were the combat brigades of the 2nd Infantry Division and units of the 7th Infantry Division.

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 or death benefits. 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 at 57 (1990).

Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found
credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may 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 is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b).

In this case, the Veteran asserts that his diabetes mellitus type II with erectile dysfunction and his Parkinson’s disease are the result of his exposure to Agent Orange while serving in Korea.

First, the Board finds that the Veteran meets the first element of service connection, a current disability, as to each claim, as the Veteran has a current diagnosis of diabetes mellitus type II with erectile dysfunction and Parkinson’s disease. See January 2011 VA examination; see October 2016 DBQ.

Turning to the second element of service connection, an in-service incurrence or aggravation of a disease or injury, the Veteran asserts that he was stationed in South Korea in the DMZ from 1968 to 1969 for 13 months, and that he was attached to the 2nd Infantry Division. The Veteran states that he lived in Recreation Center #3 which was located in the DMZ and that he served compounds within that geographic area. The Veteran asserts that he walked or hitched a ride to meet with soldiers that he was requested to asses in his capacity as a “social worker/psych specialist.” The Veteran explained that he walked along dusty roads and cut through vegetation and foliage on a daily basis in order to get to the various compounds. See December 2016 Correspondence.

The Veteran has also included a buddy statement from Captain T. F. M., dated December 1969. The letter indicates that the Veteran worked as a social worker in Korea, and that the Veteran was responsible for serving eleven military compounds in the “Hostile Fire Zone” in Korea. The Veteran provided an additional buddy statement from Major J. R. L., M.C., dated December 1969. The statement indicates that the Veteran was responsible for the mental health of soldiers located in the “Hostile Fire Zone (DMZ)” in Korea, and that he was required to travel daily great distances to interview promptly and to attend to the demands and needs of the men in the area assigned to him.

The Board notes that the in response to a request, the Defense Personnel Records Information Retrieval System (DPRIS) stated that they were unable to locate 1969 unit records submitted by the 2nd Medical Battalion. However, they reviewed the 1894-1971 unit history and found that the Battalion was located in Camp Irvin, South Korea, and provided medical support to the 2nd Infantry Division and other units located within the Division area. The response states that the records do not document “the use, storage, spraying, or transporting of herbicides to include Agent Orange. In addition, the records do not document any specific duties performed by the 2nd Medical Battalion unit members along the Demilitarized Zone (DMZ).”

Although the Board considers the response provided by DPRIS, the Board finds that when resolving reasonable doubt in the favor of the Veteran, the Veteran served in the DMZ, and applies the presumption discussed above to concede Agent Orange exposure. In this case, DPRIS noted missing records and relied on the unit history records to come to their conclusion. However, of record are two contemporaneous buddy statements indicating the
and other units located within the Division area. The response states that the records do not document “the use, storage, spraying, or transporting of herbicides to include Agent Orange. In addition, the records do not document any specific duties performed by the 2nd Medical Battalion unit members along the Demilitarized Zone (DMZ).”

Although the Board considers the response provided by DPRIS, the Board finds that when resolving reasonable doubt in the favor of the Veteran, the Veteran served in the DMZ, and applies the presumption discussed above to concede Agent Orange exposure. In this case, DPRIS noted missing records and relied on the unit history records to come to their conclusion. However, of record are two contemporaneous buddy statements indicating the Veteran’s presence in the DMZ, and the Board finds such letters to be highly probative. The Board notes that in addition to the letters being contemporaneous to the Veteran’s service, they were also written by a Captain and Major who served with the Veteran. Therefore, although DPRIS concluded that the Veteran’s unit did not serve in the DMZ, the Board considers the Veteran’s statements and the two contemporaneous buddy statements and concedes the Veteran’s service in the DMZ. Thus, applying the presumption, the Board concedes Agent Orange exposure.

Having conceded Agent Orange exposure, the question remains, whether the Veteran has been diagnosed with a disability and subject to presumptive service connection under the provisions of 38 C.F.R. §§ 3.307 and 3.309.

The current list of diseases subject to presumptive service connection under 38 C.F.R. § 3.309 (e) include both diabetes mellitus type II and Parkinson’s disease. 38 C.F.R. § 3.309 (e); 38 C.F.R. § 3.307 (a)(6)(ii). Therefore, as the Veteran is presumed to have been exposed to an herbicide agent, to include Agent Orange, and he has a current diagnosis of diabetes mellitus type II with erectile dysfunction and Parkinson’s disease, both disabilities that fall under the herbicide agent presumption, the Veteran’s claim for service connection for diabetes mellitus type II with erectile dysfunction and the Veteran’s claim for service connection Parkinson’s disease are granted.

Michael A. Pappas

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board J. Tunis, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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