Citation Nr: A23010031 Decision Date: 05/15/23 Archive Date: 05/15/23 DOCKET NO. 220803-264673 DATE: May 15, 2023 ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to service connection for diabetic neuropathy of the left upper extremity is granted. Entitlement to service connection for diabetic neuropathy of the right upper extremity is granted. Entitlement to service connection for diabetic neuropathy of the left lower extremity granted. Entitlement to service connection for diabetic neuropathy of the right lower extremity is granted. Entitlement to service connection for hypertension is granted. FINDING OF FACT The probative evidence of record establishes, on a facts-found basis, that the Veteran was exposed to herbicides during his period of active service in Fort Gordon, Georgia, from January 1968 to March 1968. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetic neuropathy of the left upper extremity has been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for diabetic neuropathy of the right upper extremity has been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for diabetic neuropathy of the left lower extremity has been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for diabetic neuropathy of the right lower extremity has been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1116(a)(2)(M), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1967 to October 1969. The rating decision on appeal was issued in July 2022 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) Service connection based on exposure to the designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. Type II diabetes mellitus shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). Hypertension is also presumptively linked with exposure to herbicide agents. 38 U.S.C. § 1116(a)(2)(M). At issue in the Veteran's claim is if he was exposed to herbicide agents during his period of active service. The Veteran contends that he was exposed to herbicides during his period of active service. In a February 2023 Board hearing, the Veteran testified that he was exposed to Agent Orange while stationed at Fort Gordon, Georgia in early 1968. The Veteran specifically testified that he was exposed to Agent Orange while patrolling around and training near Camp Crockett, a Vietnam training ground, during his active service at Fort Gordon. The Veteran's military personnel records note that the Veteran completed advanced individual training (AIT) at Fort Gordon, Georgia, from January 1968 to March 1968. The Veteran's military occupational specialty was military police. In addition, the United States Department of Veterans Affairs website shows that Agent Orange and other herbicides were tested or stored at Fort Gordon, Georgia, from July 15-17, 1967, and during an unspecified date in 1968 prior to July 1968. The Veteran has consistently held that his duties put on Fort Gordon during time the time period that herbicides, to include Agent Orange were tested on-site. He credibly and competently testified to this fact during his February 2023 Board hearing, and that testimony is confirmed by his military personnel records. Absent probative evidence to the contrary, the Board does not doubt his credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (competency of the claimant to report observable events from service, were found credible). The Board resolves all reasonable doubt in favor of the Veteran. Accordingly, service connection is warranted for diabetes mellitus, type II. 2. Entitlement to service connection for diabetic neuropathy of the left upper extremity 3. Entitlement to service connection for diabetic neuropathy of the right upper extremity 4. Entitlement to service connection for diabetic neuropathy of the left lower extremity 5. Entitlement to service connection for diabetic neuropathy of the right lower extremity Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). At his June 2022 VA diabetic sensory-motor peripheral neuropathy examination, he was diagnosed with diabetic neuropathy of all four extremities. Service connection for diabetic neuropathy of all four extremities is granted because the Veteran's diabetes is now service-connected. 38 C.F.R. § 3.310. 6. Entitlement to service connection for hypertension The Veteran claims entitlement to service connection for hypertension. As noted above, the Veteran was exposed to herbicide agents. In addition, the Veteran has a diagnosis of hypertension as confirmed in VA treatment records. At issue in the Veteran's claim is whether his current hypertension was caused or aggravated by his active service, to include herbicide exposure. As noted above, the Board finds on a facts-found basis that the Veteran was exposed to herbicides, to include Agent Orange, during his period of active service while stationed at Fort Gordon, Georgia, from January 1968 to March 1968. The 2014 NAS Report (2014 NAS Update) found "limited or suggestive evidence of association" between hypertension and herbicide agent exposure. In a 2018 NAS Update, hypertension was elevated from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. See Veterans and Agent Orange: Update 11 (2018). According to NAS, the "sufficient evidence of an association" category indicates that there is enough epidemiologic evidence "to conclude that there is a positive association" between hypertension and herbicide exposure. Id. Although the record does not include the 2014 and 2018 NAS reports, these are within the Board's constructive possession, as the VA provided support in in developing these reports and as they are highly relevant to this matter. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021) (holding that the VA is in constructive possession of documents that are relevant and reasonably connected to the claim). Accordingly, the Board takes judicial notice of the 2018 NAS Update finding that there is sufficient epidemiologic evidence "to conclude that there is a positive association" between hypertension and exposure to herbicide agents. Service connection for hypertension is granted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.