Citation Nr: 1045641 Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 06-17 174 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure.
2. Entitlement to service connection for amputation of the right great toe, disarticulation at the metatarsophalangeal joint, claimed as secondary to diabetes mellitus, type II.
3. Entitlement to service connection for peripheral vascular disease of the right lower extremity, claimed as secondary to diabetes mellitus, type II.
4. Entitlement to service connection for peripheral vascular disease of the left lower extremity, claimed as secondary to diabetes mellitus, type II.
5. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus, type II.
6. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus, type II.
7. Entitlement to service connection for ulcer of the left knee, claimed as secondary to diabetes mellitus, type II.
8. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus, type II.
9. Entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus, type II.
10. Entitlement to service connection for ulcers of the feet, claimed as secondary to diabetes mellitus, type II.
11. Entitlement to service connection for diabetic retinopathy, claimed as secondary to diabetes mellitus, type II.
12. Entitlement to service connection for cataracts of the eyes, claimed as secondary to diabetes mellitus, type II.
13. Entitlement to service connection for a skin condition, claimed as jungle rot due to herbicide exposure.
14. Entitlement to service connection for an enlarged prostate, claimed as due to herbicide exposure.
15. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).
16. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance.
REPRESENTATION
Veteran represented by: Michael A. Viterna, Esq.
ATTORNEY FOR THE BOARD
Arif Syed, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1968 to January 1971.
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review.
In May 2009, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in a June 2010 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings.
As will be discussed in detail below, in September 2005, subsequent to the initial adjudication of the Veteran's diabetes claim, the RO obtained the Veteran's service personnel records and associated them with his claims folder. These personnel records included the Veteran's record of assignments, specifically service in Thailand where, as will be discussed in greater detail below, the Board has found that the Veteran was exposed to herbicides.
Under 38 C.F.R. § 3.156(c)(1) (2010), "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim ... Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury or disease ... (ii) Additional service records forwarded by the Department of Defense or the service department of VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim." The Board finds that the personnel records are clearly relevant and of probative value to the Veteran's diabetes, right great toe amputation, peripheral vascular disease of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, left knee ulcer, and hypertension claims, as it demonstrates in- service exposure to herbicides. The Board will therefore reconsider the Veteran's claims and is redenominating the issues on appeal to entitlement to service connection for diabetes, right great toe amputation, peripheral vascular disease of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, left knee ulcer, and hypertension pursuant to 38 C.F.R. § 3.156(c).
The issues of entitlement to service connection for hypertension and erectile dysfunction, both claimed as secondary to diabetes mellitus, type II; a skin condition and an enlarged prostate, both claimed as due to herbicide exposure; TDIU; and SMC 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. The medical evidence of record shows that the Veteran has a current diagnosis of diabetes mellitus, type II.
2. The preponderance of the evidence of record shows that the Veteran was exposed to herbicide agents during active military service. The evidence therefore links the Veteran's diabetes mellitus to his in-service herbicide exposure. 3. The competent and probative evidence of record serves to link the Veteran's currently diagnosed amputation of the right great toe, disarticulation at the metatarsophalangeal joint, to his service-connected diabetes mellitus, type II.
4. The competent and probative evidence of record serves to link the Veteran's currently diagnosed peripheral vascular disease of the bilateral lower extremities to his service-connected diabetes mellitus, type II.
5. The competent and probative evidence of record serves to link the Veteran's currently diagnosed peripheral neuropathy of the bilateral lower extremities to his service-connected diabetes mellitus, type II.
6. The competent and probative evidence of record serves to link the Veteran's currently diagnosed ulcer of the left knee to his service-connected diabetes mellitus, type II.
7. The competent and probative evidence of record serves to link the Veteran's currently diagnosed ulcers of the feet to his service-connected diabetes mellitus, type II.
8. The competent and probative evidence of record serves to link the Veteran's currently diagnosed diabetic retinopathy to his service-connected diabetes mellitus, type II.
9. The competent and probative evidence of record serves to link the Veteran's currently diagnosed cataracts to his service- connected diabetes mellitus, type II.
CONCLUSIONS OF LAW
1. Diabetes mellitus, type II, was incurred in active military service. 38 U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010).
2. The Veteran's currently diagnosed right great toe amputation, disarticulation at the metatarsophalangeal joint, is a result of his service-connected diabetes mellitus, type II. 38 C.F.R. § 3.310 (2010).
3. The Veteran's currently diagnosed peripheral vascular disease of the bilateral lower extremities is a result of his service- connected diabetes mellitus, type II. 38 C.F.R. § 3.310 (2010).
4. The Veteran's currently diagnosed peripheral neuropathy of the bilateral lower extremities is a result of his service- connected diabetes mellitus, type II. 38 C.F.R. § 3.310 (2010).
5. The Veteran's currently diagnosed ulcer of the left knee is a result of his service-connected diabetes mellitus, type II. 38 C.F.R. § 3.310 (2010).
6. The Veteran's currently diagnosed ulcers of the feet is a result of his service-connected diabetes mellitus, type II. 38 C.F.R. § 3.310 (2010).
7. The Veteran's currently diagnosed diabetic retinopathy is a result of his service-connected diabetes mellitus, type II. 38 C.F.R. § 3.310 (2010).
8. The Veteran's currently diagnosed cataracts disability is a result of his service-connected diabetes mellitus, type II. 38 C.F.R. § 3.310 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran seeks entitlement to service connection for diabetes mellitus, a right great toe amputation, peripheral vascular disease of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, a left knee ulcer, ulcers of the feet, diabetic retinopathy, and cataracts.
The Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns
As indicated above, in May 2009, the Board remanded these claims and ordered either the agency of original jurisdiction (AOJ) or AMC to ask the Veteran for information to be used in clarifying his service in Thailand and whether he set foot in Vietnam. If the Veteran indicated that he set foot in Vietnam, he was asked to provide details of his service in Vietnam. Further, the Veteran's claimed herbicide exposure in Thailand was to be verified pursuant to VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.n.
Pursuant to the Board's remand instructions, the AMC sent a letter to the Veteran requesting that he identify whether he served in the Republic of Vietnam, and if so , provide details of his service, to include when, where, and how he was exposed to herbicides, as well in service other than Vietnam that involved exposure to herbicides. Thereafter, the AMC furnished a description of the Veteran's claimed exposure to Compensation and Pension (C & P) and requested a review of Department of Defense's (DoD) inventory of herbicide operations to determine whether herbicides were used as contended. Further, the AMC requested verification of exposure to herbicides from the United States Joint Services Records Research Center (JSRRC). The Veteran's claims were readjudicated via the June 2010 SSOC.
Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance].
The Veterans Claims Assistance Act of 2000
The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002).
A VCAA notice letter was sent to the Veteran regarding his service connection claims in May 2005. This letter appears to be adequate. The Board need not, however, discuss in detail the sufficiency of the VCAA notice letter in light of the fact that the Board is granting the claims. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefits sought on appeal.
The Board further notes that the Veteran received proper notice as to degree of disability and effective date in a March 2006 letter, as required by the decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006).
As discussed below, the Board is granting the Veteran's service connection claims. It is not the Board's responsibility to assign a disability rating or an effective date in the first instance. The RO will be responsible for addressing any notice defect with respect to the assignment of an initial disability rating and/or effective date when effectuating the award, and the Board is confident that the Veteran will be afforded appropriate notice under Dingess.
Accordingly, the Board will proceed to a decision as to the issues of diabetes mellitus, a right great toe amputation, peripheral vascular disease of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, a left knee ulcer, ulcers of the feet, diabetic retinopathy, and cataracts.
Service connection for Diabetes Mellitus
Pertinent legal criteria
Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010).
For certain chronic disorders, including diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010).
In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2010).
A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, 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 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If so, the veteran is thereby entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). These diseases are chloracne; type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy (defined as transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset); porphyria cutanea tarda; prostate cancer; respiratory cancers; AL amyloidosis, and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2010).
The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; oral, nasal, and pharyngeal cancer; bone and joint cancer; skin cancers (melanoma, basal, and squamous cell); breast cancer; female reproductive system cancer (cervix, uterus, ovary); testicular cancer; urinary bladder cancer; renal cancer; leukemia (other than chronic lymphocytic leukemia); abnormal sperm characteristics and infertility; spontaneous abortion; neonatal or infant death and stillbirth in offspring of exposed individuals; low birthweight in offspring of exposed individuals; birth defects (other than spina bifida) in offspring of exposed individuals; childhood cancer (including acute myelogenous leukemia) in offspring of exposed individuals; neurobehavioral disorders (cognitive and neuropsychiatric); movement disorders, including Parkinson's disease and amyotrophic lateral sclerosis; chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, ulcers); immune system disorders (immune suppression, autoimmunity); circulatory disorders; endometriosis; and effects of thyroid homeostasis; gastrointestinal tumors (esophagus, stomach, pancreas, colon, rectum); and brain tumors, or any other disability not specified. See Notice, 72 Fed.Reg. 32395-407 (June 12, 2007); See also Notice, 68 Fed.Reg. 27630 -27641 (May 20, 2003); See also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed.Reg. 59232 (Nov. 2, 1999). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999).
Analysis
The Veteran is claiming entitlement to service connection for diabetes mellitus, type II, which he contends is due to his military service. See, e.g., the Veteran's notice of disagreement dated December 2005.
As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra.
As to Hickson element (1), it is undisputed that the Veteran is currently diagnosed with diabetes mellitus, as is evidenced by the report of the November 2002 VA examination, as well as multiple VA treatment records. Hickson element (1) is, therefore, satisfied.
With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, a review of the Veteran's service treatment records reveals no evidence of diabetes mellitus. Additionally, the record does not reflect medical evidence showing any manifestations of diabetes mellitus during the one-year presumptive period after the Veteran's separation from service. On the contrary, the record does not reflect any complaints of or treatment for diabetes prior to April 1980 (more than 9 years after his separation from active service).
While all Veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to a herbicide agent, the Veteran's service personnel records do not show that he ever served in Vietnam. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. Instead, the Veteran claims that he was exposed to herbicide agents while serving in Thailand.
The Veteran's service personnel records show that he served in Thailand from September 7, 1968 to August 28, 1969. The Veteran specifically contends that while serving in Camp Sami San in Sattahip, Thailand, which was half a mile from the U-Tapao Royal Thai Navy Airfield, the area was sprayed with what appeared to be Agent Orange. He also stated that he ran courier service as part of his duties between the camp and U-Tapao as well as Camp Vayama, and that the distance to U-Tapao in particular was "probably no more than one mile" and took him along the perimeter of the U-Tapao base. He further indicated that he served in the Gulf Coastal Waters, where B-52 bombers were deployed in Southeast Asia for assault on Vietnam. He swam in the waters, and performed on Guard duty on many occasions. Finally, he reported that herbicides were sprayed between 1968 and 1969.
The Veteran's claims are consistent with the evidence of record, which shows that he served in Thailand, and that he served as a company clerk which reasonably involved courier service. In addition, the evidence shows that Sattahip, Thailand was located only a few miles from U-Tapao Airfield. As there is no evidence that the Veteran was ever absent from his unit or otherwise assigned to another base, the evidence of record therefore shows that the Veteran served in Sattahip, Thailand as well as on or near U-Tapao Air Force Base during the entire duration of his service in Thailand.
The Board also notes that a declassified military report released by the DoD entitled "Project Checo Southeast Asia Report, Base Defense in Thailand" documents the use of herbicides in Thailand. In particular, the report discussed "physical defenses as they existed in Thailand from 1968 to 1972." It generally states that "herbicides were employed to assist in the difficult task of vegetation control" at most installations in Thailand. The report also specifically discussed U-Tapao Air Force Base, stating that "[d]ense jungles were rated as the greatest threat to the defenses at U-Tapao. . . . Vegetation control was all but impossible over the entire reservation. Vegetation control was further hindered by the inability of the base to get herbicides through supply channels during the entire first half of 1972." While this report does not specifically state that herbicides were used at U-Tapao in 1968 or 1969, it does provide information about extensive herbicide use at locations in Thailand during that time period, states that herbicides were used at most installations in Thailand, states that vegetation control was a major problem at U-Tapao, and shows that herbicides were being supplied to U-Tapao to control vegetation. Accordingly, the Board finds it is at least as likely as not that herbicides were used at the base at which the Veteran was stationed from September 1968 through August 1969. As such, applying the benefit of the doubt, the evidence of record shows that the Veteran was exposed to herbicide agents during active military service. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Diabetes mellitus, type II is deemed associated with herbicide agent exposure under VA law. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Accordingly, as the evidence of record shows that the Veteran was exposed to herbicide agents during active military service, and the medical evidence shows a current diagnosis of diabetes mellitus, type II, service connection for diabetes mellitus, type II, is warranted.
Service connection for Right Great Toe Amputation, Peripheral Vascular Disease of the Bilateral Lower Extremities, Peripheral Neuropathy of the Bilateral Lower Extremities, Ulcer of the Left Knee, Ulcers of the Feet, Diabetic Retinopathy, and Cataracts
Because these issues involve the application of identical law to virtually identical facts, the Board will address them together.
The law and regulations generally pertaining to service connection claims, continuity of symptomatology, and herbicide exposure has been set forth above and will not be repeated.
In addition to disabilities that were incurred in, or aggravated by, active military service, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2010); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995).
With respect to secondary service connection, an analysis similar to the Court's decision in Hickson applies. There must be (1) evidence of a current disability; (2) evidence of a service- connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
With respect to element (1), current disability, the record clearly demonstrates that the Veteran has current diagnoses of amputation of the right great toe, disarticulation at the metatarsophalangeal joint, peripheral vascular disease of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, ulcer of the left knee, ulcers of the feet, diabetic retinopathy, and cataracts. See the November 2002 VA examination report; see also VA treatment records dated October 2003 and November 2003. Element (1) of Wallin is therefore satisfied.
Wallin element (2) has been met; the Veteran is service-connected for diabetes mellitus, type II.
Turning to Wallin element (3), medical nexus, in resolving the benefit of the doubt in the Veteran's favor, the competent medical evidence demonstrates that the Veteran's currently diagnosed right great toe amputation, peripheral vascular disease of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, ulcer of the left knee, ulcers of the feet, diabetic retinopathy, and cataracts are related to his service-connected diabetes mellitus. Specifically, the November 2002 VA examiner concluded the following:
"Peripheral neuropathy of both the lower extremities, most likely secondary to diabetes mellitus; status post amputation of the right first toe disarticulation at metatarsophalangeal joint ... well-healed, secondary to complications due to diabetes mellitus; peripheral vascular disease ... Most likely, secondary to diabetes mellitus; and ulcer on left knee secondary to burn injury secondary to diabetes mellitus."
Additionally, VA treatment records dated in October and November 2003 document treatment for the Veteran's service-connected diabetes mellitus. Crucially, the VA treatment records indicate that complications of the Veteran's diabetes included diabetic retinopathy, cataracts, and ulcers of the feet.
The report of the VA examiner as well as the VA treatment records appear to have been based upon a review of the Veteran's medical complaints, examination of the Veteran, and thoughtful analysis of the Veteran's entire history and current medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"].
Based on the foregoing, the Board concludes that the Veteran has been shown to have a status post amputation of the right great toe, peripheral vascular disease of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, a left knee ulcer, ulcers of the feet, diabetic retinopathy, and cataracts which are related to his service- connected diabetes mellitus. The Board notes that there is no evidence showing otherwise.
In summary, the Board concludes that service connection for amputation of the right great toe, peripheral vascular disease of the bilateral lower extremities, peripheral neuropathy of the bilateral lower extremities, a left knee ulcer, ulcers of the feet, diabetic retinopathy, and cataracts is warranted.
ORDER
Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure, is granted.
Entitlement to service connection for amputation of the right great toe, disarticulation at the metatarsophalangeal joint, claimed as secondary to diabetes mellitus, type II, is granted.
Entitlement to service connection for peripheral vascular disease of the right lower extremity, claimed as secondary to diabetes mellitus, type II, is granted.
Entitlement to service connection for peripheral vascular disease of the left lower extremity, claimed as secondary to diabetes mellitus, type II, is granted.
Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus, type II, is granted.
Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus, type II, is granted.
Entitlement to service connection for ulcer of the left knee, claimed as secondary to diabetes mellitus, type II, is granted.
Entitlement to service connection for ulcers of the feet, claimed as secondary to diabetes mellitus, type II, is granted.
Entitlement to service connection for diabetic retinopathy, claimed as secondary to diabetes mellitus, type II, is granted.
Entitlement to service connection for cataracts of the eyes, claimed as secondary to diabetes mellitus, type II, is granted.
REMAND
For reasons expressed immediately below, the Board finds that the issues of entitlement to service connection for hypertension and erectile dysfunction, claimed as secondary to service-connected diabetes mellitus; entitlement to service connection for a skin condition and an enlarged prostate, to include as due to herbicide exposure; TDIU; and SMC must be remanded for additional evidentiary development.
Service connection for Hypertension, Erectile Dysfunction, a Skin Condition, and an Enlarged Prostate
The Board initially notes that the Veteran has not claimed that his current hypertension and erectile dysfunction are a direct result of his military service, and there is nothing in the record which so suggests. Instead, he contends that the claimed conditions are secondary to his diabetes mellitus. See, e.g., the Veteran's claim for VA benefits dated in May 2005.
The Board notes, however, that the RO adjudicated the Veteran's hypertension and erectile dysfunction claims on both a direct and secondary basis. See the RO's November 2005 rating decision. In that connection, the Board's inquiry will similarly include analysis as to both direct and secondary service connection, as doing so does not prejudice the Veteran. Cf. Bernard v. Brown, 4 Vet. App. 384 (1993).
As detailed above, in order to establish service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence of a disease or injury or evidence of a service-connected disability; and (3) evidence of a nexus between (1) and (2). See Hickson and Wallin, supra.
As to the first element-current disability, the medical evidence of record documents diagnoses of hypertension, erectile dysfunction, a skin condition (namely debrided skin), and a mildly enlarged prostate. See the November 2002 VA examination report and VA treatment records dated in October 2003 and April 2005. With respect to the Veteran's mildly enlarged prostate, the medical evidence of record is pertinently absent any diagnosis of or treatment for prostate cancer.
With respect to Hickson element (2)-including in-service disease in particular, the Board notes that the service treatment records are negative for complaints of, treatment for, or findings of hypertension, erectile dysfunction, a skin condition, or an enlarged prostate. In fact, the service separation examination is absent any evidence of these disabilities. Additionally, there is no evidence that hypertension was manifested within the one year presumptive period after service found in 38 C.F.R. § 3.309(a) (2010). Indeed, the first competent evidence of hypertension, erectile dysfunction, a skin condition, and an enlarged prostate is dated in March 1985, April 2005, October 2003, and April 2005, respectively, which is many years after the Veteran's discharge from active duty.
Concerning in-service injury, as discussed above, the Board concedes the Veteran's in-service exposure to Agent Orange. Of particular importance in this regard is the fact that service personnel records confirm the Veteran's service in Thailand between September 1968 and August 1969. His exposure to herbicides is, therefore, presumed. See 38 U.S.C.A. § 1116(f).
According to 38 C.F.R. § 3.309(e) (2010), certain diseases may be presumed to be related to exposure to herbicides; hypertension, erectile dysfunction, debrided skin, and an enlarged prostate are not among the listed diseases. On August 31, 2010, the Secretary of VA published a final rule in the Federal Register amending 38 C.F.R. § 3.309(e) to add, in part, ischemic heart disease as a presumptive condition. See 75 Fed. Reg. 53,202. Because ischemic heart disease refers only to heart disease, hypertension was not included. Therefore, hypertension may not be presumed to be related to herbicide exposure. However, service connection based on direct causation may still be established pursuant to Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
With respect to element (3), medical nexus, the medical evidence currently associated with the Veteran's VA claims folder is absent an opinion as to a possible causal relationship between the Veteran's hypertension erectile dysfunction, skin debridement, and enlarge prostate and his in-service herbicide exposure. Moreover, the medical evidence is absent an opinion as to a possible causal relationship between the Veteran's erectile dysfunction and his service-connected diabetes mellitus. With respect to the Veteran's hypertension, the Board notes that the November 2002 VA examiner reported that the Veteran's hypertension is "not a complication of diabetes mellitus." Crucially, however, the VA examiner did not render an opinion as to whether the Veteran's hypertension was aggravated by his service-connected diabetes mellitus. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995).
In light of the foregoing, the Board is of the opinion that a clarifying VA examination would be probative in ascertaining whether the Veteran's hypertension, erectile dysfunction, skin disability, and enlarged prostate are related to his in-service herbicide exposure or are otherwise related to his military service, as well as whether the hypertension and erectile dysfunction are related to the service-connected diabetes mellitus. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2010) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim).
An additional factor that needs to be considered is the Court's holding in McClain v. Nicholson, 21 Vet App 319 (2007) that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to the adjudication of the claim. The Board cannot exclude the possibility that the Veteran exhibited hypertension, erectile dysfunction, a skin disability, and an enlarge prostate during the pendency of this appeal that had resolved. In the event that further VA examinations do not show current hypertension, erectile dysfunction, a skin disability, or an enlarged prostate, the type of scenario addressed under McClain must be addressed on examination as well.
TDIU
It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15.
"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a).
The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):
It is clear that the Veteran need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the Veteran.
A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the (service- connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).
In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service- connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91.
In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.
A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a).
Pursuant to 38 C.F.R. § 4.16(b), when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321.
The medical evidence currently associated with the Veteran's VA claims folder is absent an opinion as to the effect of the Veteran's service-connected disabilities on his employability including the now service connected diabetes mellitus and associated disabilities. In light of the foregoing, the Board is of the opinion that a clarifying VA examination would be probative in ascertaining whether the Veteran's service-connected disabilities prevent him from obtaining substantially gainful employment. See Charles and McLendon, both supra; see also 38 C.F.R. § 3.159(c)(4).
SMC
Special monthly compensation (SMC) is payable at a specified rate if the veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.351(b) (2010).
The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination. See 38 C.F.R. § 3.352(a) (2010).
A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id.
Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." See Turco v. Brown, 9 Vet. App. 222, 224 (1996).
The medical evidence currently associated with the Veteran's VA claims folder is absent an opinion as to the effect of his service-connected disabilities on his need for aid and attendance. In light of the foregoing, the Board is of the opinion that a clarifying VA examination would be probative in ascertaining the effect of the Veteran's service-connected disabilities on his need for aid and attendance. See Charles and McLendon, both supra; see also 38 C.F.R. § 3.159(c)(4).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of his hypertension, erectile dysfunction, skin disability, and enlarged prostate. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted.
The examiner must provide an opinion as to the following:
a. whether the Veteran currently suffers from hypertension;
b. if the Veteran currently suffers from hypertension, whether it is at least as likely as not (50 percent or greater) that the hypertension is related to his military service, including his conceded in-service exposure to herbicides, or was caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected diabetes mellitus. If the examiner finds that hypertension is aggravated by the service-connected diabetes mellitus, then he/she should quantify the degree of aggravation;
c. whether the Veteran currently suffers from erectile dysfunction;
d. if the Veteran currently suffers from erectile dysfunction, whether it is at least as likely as not (50 percent or greater) that the erectile dysfunction is related to his military service, including his conceded in-service exposure to herbicides, or was caused or aggravated (i.e. permanently worsen beyond the normal progression of the disability) by his service-connected diabetes mellitus. If the examiner finds that erectile dysfunction is aggravated by the service- connected diabetes mellitus, then he/she should quantify the degree of aggravation;
e. whether the Veteran currently suffers from a skin disability;
f. if the Veteran currently suffers from a skin disability, whether it is at least as likely as not (50 percent or greater) that the skin disability is related to his military service, including his conceded in-service exposure to herbicides;
g. whether the Veteran currently suffers from an enlarged prostate;
h. if the Veteran currently suffers from an enlarged prostate, whether it is at least as likely as not (50 percent or greater) that the enlarge prostate is related to his military service, including his conceded in-service exposure to herbicides;
i. whether the Veteran's service- connected disabilities prevent him from securing and following substantially gainful occupation;
j. address the effect of the Veteran's service-connected disabilities on his need for aid and attendance.
The examiner should indicate in his/her report that the claims file was reviewed. A complete rationale for any opinion expressed should be provided.
Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.
2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) 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 matter or matters the Board has remanded. See 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. 2009).
______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs