DIABETES MELLITUS

Summary

The Veteran, a Veteran who served from November 1965 to February 1967, including service in Thailand at Camp Friendship and Korat Royal Thai Air Force Base (RTAFB), appeals the denial of service connection for type II diabetes mellitus, hypertension, and erectile dysfunction (ED). The Veteran claimed direct service connection for type II diabetes mellitus due to herbicide exposure and secondary service connection for hypertension and ED due to his diabetes and hypertension. The Board found that the Veteran's military personnel records confirmed his service at Camp Friendship and Korat RTAFB, and his VA treatment records confirmed a diagnosis of type II diabetes mellitus. The Board also considered the PACT Act, which presumes herbicide exposure for service at RTAFBs in Thailand during the Vietnam era. The Veteran provided credible testimony and statements indicating he resided near and traveled through areas where herbicides were used at the bases, and that he was exposed to herbicides. Although the Board noted the absence of specific perimeter duty assignments, it found the Veteran's reports competent and credible, establishing that he was near the air base perimeter. The Board found the evidence in favor versus against herbicide exposure to be in relative equipoise, resolving doubt in the Veteran's favor and granting service connection for type II diabetes mellitus. A December 2017 VA medical opinion concluded that the Veteran's hypertension and ED were at least as likely as not proximately due to his type II diabetes mellitus, supported by his primary care physician's notes. Consequently, service connection for hypertension and ED was also granted on a secondary basis. The Board granted service connection for type II diabetes mellitus, hypertension, and ED.

Rationale

Presumption of herbicide exposure under PACT Act for service in Thailand; Credible testimony of exposure near base perimeter and travel through sprayed areas; Evidence in relative equipoise, resolving doubt in Veteran's favor

Full Decision Text

Citation Nr: A22024701
Decision Date: 12/07/22	Archive Date: 12/07/22

DOCKET NO. 211205-201944
DATE: December 7, 2022

ORDER

Entitlement to service connection for type II diabetes mellitus as a presumptive result of exposure to herbicides is granted.

Entitlement to service connection for hypertension secondary to the now service-connected type II diabetes mellitus also is granted.

As well, entitlement to service connection for erectile dysfunction (ED) is granted on a secondary basis owing to the service-connected type II diabetes mellitus and hypertension.

FINDINGS OF FACT

1. The Veteran served at Camp Friendship and Korat Royal Thai Air Force Base (RTAFB) from November 1965 to February 1967. 

2. It is as likely as not that his military duties and responsibilities required him to travel between Camp Friendship and Korat RTAFB, and the barracks where he slept ("hooch") positioned him near the perimeter of the base.

3. Type II diabetes mellitus is presumptively associated with exposure to the dioxin in Agent Orange, and it is as likely as not he was exposed to this toxic herbicide while stationed in Thailand.

4.  Moreover, his hypertension and ED are residuals, i.e., complications of his type II diabetes mellitus.

CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, the criteria are met for entitlement to service connection for type II diabetes mellitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

2. The criteria also are met for entitlement to service connection for hypertension and ED since secondary to the type II diabetes mellitus. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1965 to February 1967. 

In December 2021, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD), which is the form used to contest a decision under the Appeals Modernization Act (AMA)).  He elected the Hearing docket.  In May 2022, he resultantly had a "virtual" teleconference hearing before the undersigned Veterans Law Judge (VLJ) of this Board. A transcript of the proceeding is of record. 

In a subsequent October 14, 2022, decision the Board granted the claims of entitlement to service connection for type II diabetes mellitus and hypertension based on a presumption created under the Sergeant First Class Health Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act), which was signed into law during the pendency of this appeal. That decision also granted service connection for ED since secondary to the type II diabetes mellitus.

But later that same month, the Veteran's attorney filed a MOTION TO VACATE that October 14, 2022, decision  citing the Board's failure to additionally address whether service connection is warranted for these claimed conditions also instead on a direct (rather than just presumptive) basis  which, if shown to be true, may permit assignment of an earlier effective date for the award. See October 22, 2022, Correspondence. 

On November 30, 2022, in response to that motion, the Board VACATED its October 14, 2022, decision and consequently is readjudicating these claims in this decision and considering all potential theories of entitlement  so both direct but also all available means of presumptively associating these claimed conditions with the Veteran's service. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009).

1. Entitlement to service connection for type II diabetes mellitus 

The Veteran testified at his May 2022 Board hearing that he was exposed to herbicides on not one, but two military bases, while stated in Thailand. He contends that Camp Friendship was his assigned workstation and living quarters, but that his military duties and responsibilities also took place at Korat RTAFB, where he stayed in old wooden barracks near the base's perimeter
 See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009).

1. Entitlement to service connection for type II diabetes mellitus 

The Veteran testified at his May 2022 Board hearing that he was exposed to herbicides on not one, but two military bases, while stated in Thailand. He contends that Camp Friendship was his assigned workstation and living quarters, but that his military duties and responsibilities also took place at Korat RTAFB, where he stayed in old wooden barracks near the base's perimeter. He would often walk from Camp Friendship to RTAFB Korat to perform his duties.

The Veteran's physical presence at Camp Friendship and Korat RTAFB and proof he has type II diabetes mellitus or at least did since filing his claim for this disease are not in dispute. His military personnel records, including his DD Form 214, confirm he served at Camp Friendship and Korat RTAFB from November 1965 to February 1967. Further, the medical evidence of record, notably his VA treatment records, list a diagnosis of type II (i.e., adult-onset) diabetes mellitus.

 

If a Veteran was exposed to an herbicide agent during his active service, certain enumerated diseases, including type II diabetes mellitus, shall be presumptively service connected even when there is no record of the disease during his service, provided the disease manifested to a compensable degree as set forth in 38 C.F.R. § 3.307(a)(6), and the rebuttable presumption provisions of § 3.307(d) are met. See 38 C.F.R. § 3.309(e). In this regard, 38 C.F.R. § 3.307(a)(6)(ii) requires that type II diabetes mellitus manifest to a degree of 10 percent or more at any time after service.

A presumption of exposure to herbicides is not just limited to Veterans who served in Vietnam  either in country or within the designated 12-nautical mile boundary off the coast, but also includes Veterans who instead served at certain times and in certain specific locations in Thailand. Moreover, even if it is determined the Veteran did not serve or have duties or responsibilities in Thailand designated as presumptively involving exposure to Agent Orange, this exposure alternatively may be established on a facts-found basis. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (holding that, even though the Veteran did not serve in Vietnam, he remains free to pursue his claim that he was actually exposed to herbicides while on active service), overruled on other grounds, Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc).

In addition, as already alluded to, on August 10, 2022, the PACT Act was enacted. This legislation amended § 1116 to include a presumption of herbicide agent exposure for any Veteran who served at any U. S. or Royal Thai military base in Thailand from January 9, 1962, through June 30, 1976. Pub. L. No. 117-168, § 407, 136 Stat. 1759, 1785 (2022). Although regulations implementing the PACT Act have not yet been promulgated, nothing in the PACT Act precludes a Veteran from seeking service connection on a direct basis. 38 U.S.C. § 1116; Honoring our PACT Act of 2022, Pub. L. No. 117-168, § 407, 136 Stat. 1759, 1785 (2022); cf. Combee v. Brown, 34 F.3d 1039 (1994). As a result, the Board is adjudicating this claim on both a direct and presumptive basis.  Thus, resolution of the appeal of this claim ultimately turns on whether the Veteran was exposed to herbicides while in Thailand  especially while stationed at Camp Friendship and/or Korat RTAFB.

VA has determined that there was significant use of herbicides on the fenced-in perimeters of bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DoD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." VA Compensation Service has acknowledged that Veterans who served in Thailand during the Vietnam era may have been exposed to tactical herbicides procured from Vietnam, or commercial herbicides of much greater strength and with characteristics of tactical herbicides
 direct and presumptive basis.  Thus, resolution of the appeal of this claim ultimately turns on whether the Veteran was exposed to herbicides while in Thailand  especially while stationed at Camp Friendship and/or Korat RTAFB.

VA has determined that there was significant use of herbicides on the fenced-in perimeters of bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DoD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." VA Compensation Service has acknowledged that Veterans who served in Thailand during the Vietnam era may have been exposed to tactical herbicides procured from Vietnam, or commercial herbicides of much greater strength and with characteristics of tactical herbicides. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). As such, VA determined that special consideration is warranted for Veterans who served during the Vietnam Era at one of the RTAFBs at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and whose duties placed them at or near sites where herbicides were used.

The Veteran did not serve in a position in Thailand that VA necessarily has conceded as involving exposure to herbicides on the base where he was stationed. His military occupational specialty (MOS) was personnel management specialist. Therefore, this case turns on whether there is other credible evidence that he was "near the air base perimeter." In other words, the Board must make this fact-specific determination and, after reviewing the evidence, the Board finds there is this required credible indication; it certainly is as likely as not he was exposed.

The Veteran has consistently described the particulars of his service in Thailand during the Vietnam era. In an October 2017 statement, he indicated that he stayed at Camp Friendship next to the Korat RTAFB in old barracks (hootches) along the perimeter of the base. See also May 2022 Veteran Statement. He testified that the road to the air base which was near his hootch was often sprayed with herbicides and that, on one instance, he was sprayed while using the latrine. See October 2017 Veteran Statement; May 2022 Veteran Statement; May 2022 Board Hearing Transcript. In addition, he often traveled on the road from Camp Friendship to Korat RTAFB as part of his military duties. See May 2022 Board Hearing Transcript.

 

Although the record on appeal does not include specific documentation of perimeter duty assignments at the Korat RTAFB, the Board finds the Veteran's reports competent and credible evidence that he resided near and traveled through areas where herbicides are known to have been used or stored at Camp Friendship and Korat RTAFB. See 38 U.S.C. § 1154(a) (explaining that, in deciding a claim, VA adjudicators must consider the circumstances, conditions, and hardships of a Veterans' service).

This conclusion is strengthened by the passage of the PACT Act  which, as noted, added a presumption of exposure for Veterans with service at RTAFBs during the Vietnam era. This determination was based on evidence of widespread exposure to herbicide agents by all U. S. personnel stationed at RTAFBs, not just those with duties that necessarily took them frequently to the perimeter of these bases.

As there is no basis upon which to question the Veteran's credibility concerning this assertion, or his competence to make this assertion, and no evidence in the record tending to contradict his claims of perimeter contact, the Board finds that the evidence in favor versus against this purported exposure to herbicide agents is at least in relative equipoise. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) ("[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation."). Hence, his exposure to herbicide agents during his service is conceded, and as already mentioned type II diabetes mellitus is a presumed result or consequence. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Thus, when resolving all reasonable doubt concerning this in his favor, this claim must be granted rather than denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (explaining there only needs to be an "approximate" (meaning nearly equal, not exactly equal) balance of evidence to in turn warrant invoking the benefit-of-the doubt doctrine or rule and granting the claim).

2. Entitlement to service connection for hypertension as secondary to the service-connected type II diabetes mellitus

3.
(a)(6), 3.309(e). Thus, when resolving all reasonable doubt concerning this in his favor, this claim must be granted rather than denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (explaining there only needs to be an "approximate" (meaning nearly equal, not exactly equal) balance of evidence to in turn warrant invoking the benefit-of-the doubt doctrine or rule and granting the claim).

2. Entitlement to service connection for hypertension as secondary to the service-connected type II diabetes mellitus

3. Entitlement to service connection for ED as secondary to the service-connected type II diabetes mellitus

Service connection may be established on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). Establishing entitlement to 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) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. 

A December 2017 VA medical opinion concluded the Veteran's hypertension and ED are at least as likely as not proximately due to or the result of his now service-connected type II diabetes mellitus. In support of this conclusion and correlation, the opining clinician cited a July 2017 note by the Veteran's primary care physician, Dr. M.E.G., affirming there are complications of the Veteran's type II diabetes mellitus.  And other evidence of record expounds that these complications include his hypertension and ED.

 

As such, the Board finds that service connection for the hypertension and ED also is warranted  but instead on a secondary basis since they derive from the type II diabetes mellitus. Therefore, these other claims also are granted.

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mukherjee, C.

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.