Citation Nr: 22013091 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-48 492 DATE: March 8, 2022 ORDER Entitlement to service connection for diabetes mellitus type II (diabetes) is granted. Entitlement to service connection for right lower extremity neuropathy is granted. Entitlement to service connection for a neurological disorder other than right lower extremity neuropathy, to include diabetic amyotrophy and neuropathy, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during active service at Fort Gordon, Georgia. 2. The Veteran's diabetes has manifested to a degree of at least 10 percent disabling and the presumption that diabetes was incurred due to in-service exposure to herbicide agents is not rebutted. 3. The Veteran's right lower extremity neuropathy is proximately due to exposure to herbicide agents in service. 4. The Veteran's neurological disorder other than right lower extremity neuropathy, to include diabetic amyotrophy and neuropathy, is proximately due to his diabetes. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes are met. 38 U.S.C. §§ 1110, 1113, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309(e). 2. The criteria for entitlement to service connection for right lower extremity neuropathy are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a neurological disorder other than right lower extremity neuropathy, to include diabetic amyotrophy and neuropathy, as secondary to diabetes, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1972 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In September 2021, the Veteran testified at a virtual hearing before the undersigned. The Board has broadened and recharacterized the appeal as to entitlement to service connection for PTSD to encompass any acquired psychiatric disorder, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, as discussed below, the claim of entitlement to service connection for right lower extremity neuropathy is not limited to that extremity, and the issues have been recharacterized accordingly. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection maybe granted for a disability that is proximately due to or has been aggravated by a service-connected disability. Diabetes is listed among the diseases presumed to be associated with exposure to herbicide agents (such as those that were found in Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Thus, if the Board determines that the Veteran was actually or presumptively exposed to herbicide agents in service, and if diabetes has manifested to a degree of at least 10 percent disabling, then service connection may be granted based on the presumption that diabetes is the result of that in-service herbicide agent exposure. See 38 C.F.R. §§ 3.307, 3.309. However, this presumption of service incurrence may be rebutted by competent medical evidence that a claimed condition is due to an intercurrent injury or disease. 38 C.F.R. § 3.307(d). Early-onset peripheral neuropathy is presumptively associated with exposure to herbicide agents, but other types are neuropathy are not presumptively associated. However, if the Veteran is shown to have actually been exposed to herbicide agents, service connection may be granted if medical evidence establishes a causal link between neuropathy and herbicide agent exposure in service. Cf. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for diabetes is granted. The Veteran asserts that he was exposed to herbicide agents at Fort Gordon and that his diabetes and neuropathy are the result of this exposure. The Board agrees. The Board will initially focus on the question of exposure to herbicide agents in the context of service connection for diabetes and will then address entitlement to service connection for neuropathy. The Veteran underwent military policeman and correctional specialist training at Fort Gordon, Georgia in 1972. See Enlisted Qualification Record. The Veteran identified a prior Board decision where the Board granted entitlement to service connection for several disabilities presumptively associated with herbicide agent exposure. In that decision, the Board found that the veteran had been exposed to herbicide agents while serving as a game warden at Fort Gordon, Georgia. Board decisions are not generally "precedential," meaning that if the Board makes a certain decision in one matter it is not required to make the same decision in other matters. There are several reasons for this, such as the differing circumstances of each veterans' service and the different evidence available in each matter. However, in certain circumstances a Board decision may be persuasive. In any event, the decision cited by the Veteran reasonably raises the question of whether he was exposed to herbicide agents at Fort Gordon, and thus the Board will explore this issue. A VA research memorandum of record states that in July 1967 at Fort Gordon, Georgia, a comprehensive short term evaluation was conducted, and Agent Orange and Agent Blue were used in the testing. See April 2014 Defense Personnel Records Information Retrieval Service (DPRIS) Response. Although the use of Agent Orange was several years prior to the Veteran's service, the Board takes notice that VA regulations recognize that herbicide agents may persist in an environment many years after an exposure event. See, e.g., 38 C.F.R. § 3.307(a)(6)(v) (conceding exposure to herbicide agents for veterans who served onboard certain aircraft used to apply herbicide agents during the Vietnam era, including Reservists who served onboard those aircraft years later). Here, exposure to herbicide agents is consistent with the places and circumstances of the Veteran's service at Fort Gordon shortly after herbicide agents were tested there. See 38 U.S.C. § 1154(b). Moreover, the medical evidence of record shows a long history of neuropathy that has been attributed to "chemical exposure" in service. See, e.g., October 2013 Ankle Conditions Disability Benefits Questionnaire (DBQ) at 5-6 (noting neuropathy likely related to chemical exposure and pre-existed diabetes). Indeed, at the Board hearing the Veteran read into the record competent medical evidence from a different clinician noting that the Veteran had complained of sensory abnormalities in the lower extremities since at least 1975, shortly after his separation from service, and this evidence of long-standing neuropathy prior to the Veteran's development of diabetes could lend significant support to Agent Orange as the etiological factor. See September 2021 Board Hearing Transcript at 3-4; see also April 17, 2014 Dr. T. Treatment Note (record identified at Board hearing). In sum, the evidence shows that the Veteran served at a facility that is known to have been a site of herbicide agent testing. Although the Veteran did not serve there when the testing occurred, he did serve there about five years later, and VA regulations contemplate that in certain instances herbicide agents may persist in an environment. And while there is no direct evidence that the Veteran was present at the testing sites, there is no direct evidence that he was not present. However, there is indirect evidence of exposure, as the medical evidence of record is consistent with an exposure event in service. Here, taking into account the places and circumstances of the Veterans service, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran was exposed to herbicide agents during his service at Fort Gordon during the Vietnam era. As noted above, diabetes is presumptively associated with exposure to herbicide agents. The Veteran has a current diagnosis of diabetes that requires insulin. See, e.g., April 12, 2018 VA Treatment Note. Thus, his diabetes has manifested to a degree of at least 10 percent disabling. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Moreover, no intercurrent etiology of diabetes is shown. Accordingly, service connection for diabetes is warranted, as presumptively related to exposure to herbicide agents, and the appeal is granted. 2. Entitlement to service connection for right lower extremity neuropathy is granted. The Veteran asserts that his right lower extremity neuropathy is related to exposure to herbicide agents in service. As noted above, the Board has determined that the Veteran was exposed to herbicide agents in service. Initially, the Board observes that the evidence of record does not definitively indicate that the Veteran's neuropathy is the "early onset" variety that is presumptively associated with herbicide agent exposure. However, as discussed below, there is no need for the Board to delay the grant of benefits sought by the Veteran because the record supports an award of service connection for neuropathy on a direct basis due to exposure to herbicide agents. As noted above, the October 2013 Ankle Conditions DBQ links the Veteran's right lower extremity neuropathy to "chemical exposure," and the Veteran introduced medical evidence into the record at the Board hearing further establishing an etiological relationship between his current neuropathy and herbicide agent exposure in service. See also April 17, 2014 Dr. T. Treatment Note (suggesting a potential relationship between longstanding neuropathy and Agent Orange). While this medical evidence does not include a definitive nexus statement, the law does not require a "definitive" nexus and the evidence taken as a whole supports a link between the Veteran's current neuropathy and herbicide agent exposure in service. Moreover, even assuming that the present evidence was not adequate to award direct service connection, the record also supports the award of service connection based on other theories of entitlement. Specifically, the record supports secondary service connection, see October 2013 Ankle Conditions DBQ at 5 (linking neuropathy to service-connected ankle disability in addition to chemical exposure), as well presumptive service connection. See, e.g., October 16, 2014 VA Treatment Note (noting that the Veteran presented the clinician with medical records documenting peripheral neuropathy manifesting one year after discharge from service); 38 C.F.R. § 3.307, 3.309(a) (explaining that chronic presumptive service connection is available for organic diseases of the nervous system that manifested to a compensable degree within one year of service, or where continuity of symptomatology is established). The Board emphasizes that the evidence of record is consistent with the history of the Veteran's disability referenced in the medical opinions noted above. See, e.g., November 1974 VA Examination Report; December 1975 VA Examination Report; February 1979 VA Examination Report. While this evidence does not specifically mention neuropathy, some examination reports mention sensory disturbances and has been interpreted by the examiners who authored the opinions discussed above. Accordingly, while service connection is supported on multiple bases, the Board will award direct service connection as that is supported by the evidence, is the theory advance by the Veteran, and as it is most favorable to the Veteran. 3. Entitlement to service connection for a neurological disorder other than right lower extremity neuropathy, to include diabetic amyotrophy and neuropathy, is granted. The Veteran's September 2013 claim included amyotrophy neuropathy and was not limited to neuropathy of the right lower extremity. See September 2013 VA Form 21-4138. His Notice of Disagreement and the Statement of the Case also encompass his original scope of claim, and the Veteran's substantive appeal is facially not limited to his right lower extremity. See September 2017 VA Form 9 (noting peripheral neuropathy of both legs and feet and amyotrophy neuropathy). As noted above, the Veteran has been granted service connection for diabetes. Moreover, he has a current diagnosis of diabetic amyotrophy and neuropathy. See, e.g., August 4, 2011 VA Treatment Note (diabetic amyotrophy per Dr. T.); March 15, 2018 Dr. T. Treatment Note (noting diabetic amyotrophy and neuropathy). The Veteran's diagnosis is self-evidently etiologically related to his service-connected diabetes. Accordingly, secondary service connection is warranted for these neurological disabilities. REASONS FOR REMAND 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to service-connected disabilities, is remanded. Remand is necessary for additional development. In this regard, the Veteran's VA treatment records include a positive depression screen, which is evidence consistent with a current acquired psychiatric disorder. Additionally, the Veteran's claim includes his report of "getting upset" due to neuropathy issues, which are now service-connected, as well as difficulty sleeping due to medical issues. See September 2013 VA Form 21-4138. Moreover, his wife testified as to seeing his mood deteriorate when the Veteran is in pain, suggesting an etiological relationship between his current reported symptoms and his service-connected medical conditions. On remand, the Veteran should be afforded an examination and an opinion should be secured as to whether any diagnosed acquired psychiatric disorder is etiologically related to service-connected disabilities. Moreover, the Veteran reported an incident in service where a prisoner at his facility died in an accident and the prisoners reacted negatively. See, e.g., March 2014 VA Form 21-0781; Board Hearing Transcript. However, the AOJ failed to attempt verification of this non-combat stressor. On remand, this deficiency should be addressed and an opinion should be secured addressing direct service connection. Updated VA and any relevant private treatment records should also be secured. The matters are REMANDED for the following action: 1. Secure complete VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Attempt to corroborate the Veteran's claimed stressor of a prisoner dying during an escape attempt while the Veteran was serving as a correctional officer. See March 2014 VA Form 21-0781. Request from the Veteran whatever additional information is needed to help identify these incidents. The AOJ's attention is drawn to the newspaper clipping submitted by the Veteran. See July 2014 Correspondence (clipping from the Baltimore Sun, November 22, 1972 (Special), page A9. Note that any requirement of a 60-day window for research purposes is in violation of the duty to assist. Accordingly, any attempt to verify the reported stressors must be completed in 60-day increments to cover any time period identified by the Veteran. Provide all findings in a detailed memorandum, including a thorough rationale if a reported stressor cannot be verified. 4. After completing #1, #2, and #3, schedule the Veteran for an examination as to the nature and etiology of any acquired psychiatric disorder(s). The claims file should be available to the examiner. All necessary testing should be performed. The examiner should address the following: (a) Diagnose all current acquired psychiatric disorders. A diagnosis of PTSD should be explicitly ruled in or excluded, and if diagnosed, the stressor(s) upon which such diagnosis is based should be identified. If the Veteran does not meet the criteria for a diagnosis of PTSD, the examiner should discuss the basis for this conclusion. (b) For each acquired psychiatric disorder identified in subpart (a), opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in or is otherwise etiologically related to the Veteran's service, to include his service as a corrections officer and the report of circumstances following the death of a prisoner at his facility. (c) For each acquired psychiatric disorder identified in subpart (a), opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is proximately due to one or more of the Veteran's service-connected disabilities, to include as a result of pain due to such disability. (d) For each acquired psychiatric disorder identified in subpart (a), opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder has been aggravated (worsened beyond natural progression) by one or more of the Veteran's service-connected disabilities, to include as a result of pain due to such disability. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate 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.