The decision by the Board of Veterans' Appeals is great news to us...it gives precedence which clearly shows our road to getting our own cases decided correctly. In his case, he patrolled the fence line of an air base which had Agent Orange freighted through the base. In our case, we have "boots on the airplane" aboard C-123K aircraft which the Air Force itself certified as "heavily contaminated, extremely dangerous, extremely hazardous" and which led to our exposure.
Many of us have claims before the VA now, and we cannot count on every Rating Officer (RO) knowing of this decision regarding Agent Orange exposure outside Vietnam, so it might be beneficial to your case to submit a copy of the decision as additional evidence.
Here is the decision, so very vital to us. It certainly shows how differently the BVA treats veterans represented by competent attorneys!
INTRODUCTIONCitation Nr: 1117698Decision Date: 05/09/11 Archive Date: 05/17/11DOCKET NO. 09-19 872 ) DATEOn appeal from the Department of Veterans Affairs Regional Office in St.Petersburg, FloridaTHE ISSUES1. Whether there is new and material evidence to reopen a claim forservice connection for Type II Diabetes Mellitus, including as due toherbicide exposure.2. Entitlement to service connection for Type II Diabetes Mellitus,including as due to herbicide exposure.3. Entitlement to service connection for peripheral neuropathy of theupper extremities, including as secondary to the Type II DiabetesMellitus.4. Entitlement to service connection for peripheral neuropathy of thelower extremities, including as secondary to the Type II DiabetesMellitus.5. Entitlement to service connection for a kidney order, including assecondary to the Type II Diabetes Mellitus.6. Entitlement to service connection for hypertension, including assecondary to the Type II Diabetes Mellitus.7. Entitlement to service connection for a heart disorder, including assecondary to the Type II Diabetes Mellitus.8. Entitlement to service connection for a bilateral foot disorder,including as secondary to the Type II Diabetes Mellitus.9. Entitlement to service connection for a bilateral eye disorder,including as secondary to the Type II Diabetes Mellitus.10. Entitlement to service connection for a lung disorder, including asdue to herbicide exposure.REPRESENTATIONAppellant represented by: Matthew D. Hill, AttorneyWITNESS AT HEARING ON APPEALThe VeteranATTORNEY FOR THE BOARDRochelle E. Richardson, Associate Counsel
The Veteran had active military service from December 1968 to October1971.This appeal to the Board of Veterans' Appeals (Board) is from an April2008 rating decision of the Department of Veterans Affairs (VA) RegionalOffice (RO) in St. Petersburg, Florida.In that April 2008 rating decision, the RO denied the Veteran's petitionsto reopen his previously denied, unappealed, claims for serviceconnection for Type II Diabetes Mellitus and residuals of a head injury -concluding there was not new and material evidence concerning theseclaims. However, the RO reopened his previously denied, unappealed,claim for service connection for a left knee disorder, though continuedto deny this claim on its underlying merits. The RO also denied hisclaims for service connection for peripheral neuropathy of the upper andlower extremities, a kidney condition, high blood pressure, a heartcondition, a bilateral foot condition, a bilateral eye condition, facialskin cancer, a lung condition, depression, and venereal disease. Aswell, the RO denied his claim for permanent and total disability andeligibility for Dependents' Educational Assistance.In his July 2008 notice of disagreement (NOD) with that decision, theVeteran contested the RO's denials of his claims for Type II DiabetesMellitus, peripheral neuropathy of his upper and lower extremities, akidney condition, high blood pressure, a heart condition, a bilateralfoot condition, a bilateral eye condition, facial skin cancer, a lungcondition, depression, the head injury, and a left knee condition. InMay 2009, the RO issued a statement of the case (SOC) concerning theseclaims and, in response, he submitted a timely substantive appeal (VAForm 9), perfecting his appeal of these claims to the Board. 38 C.F.R. §20.200 (2010).In August 2009, following receipt and consideration of additional
evidence, the RO confirmed and continued its prior determinationsregarding the claims.In June 2010, as support for his claims, the Veteran testified at ahearing at the Board's offices in Washington, DC (Central Office hearing)before the undersigned Veterans Law Judge. His wife was also present atthe proceeding but did not testify.During that June 2010 hearing, the Veteran's attorney indicated theVeteran was withdrawing his left knee, head injury and depression claims.In July 2010, the Veteran's attorney submitted a letter reiterating thisand indicated additionally that the Veteran also was withdrawing his skincancer claim. Therefore, those claims are no longer at issue. See 38C.F.R. § 20.204.Since certification of this appeal to the Board - including during andsince that June 2010 hearing, the Veteran and his attorney have submittedadditional evidence and waived their right to have the RO initiallyconsider it. See 38 C.F.R. §§ 20.800, 20.1304(c).In this decision, the Board is reopening the claim for service connectionfor Type II Diabetes Mellitus because there is new and material evidence.The Board also is deciding the underlying claim for service connectionfor this condition, as well as the claims for some of the allegedcomplications - namely, for peripheral neuropathy of the lowerextremities, a bilateral eye disorder, and a kidney disorder. The Boardis remanding the remaining claims for service connection for peripheralneuropathy of the upper extremities, hypertension, a heart disorder, abilateral foot disorder, and a lung disorder because these remainingclaims require further development before being decided.FINDINGS OF FACT1. Although the Veteran did not appeal the RO's December 2002 ratingdecision denying his claim for service connection for Type II DiabetesMellitus, additional evidence since submitted is not cumulative orredundant of evidence already of record and previously considered,relates to an unestablished fact necessary to substantiate this claim,and raises a reasonable possibility of substantiating it.2. Although the Veteran did not serve in Vietnam, there is probative,i.e., competent and credible, evidence of record indicating it is aslikely as not that he nonetheless was exposed to herbicides elsewhere,while stationed in the Philippines, and has consequent Type II DiabetesMellitus.3. As well, there is probative medical evidence of record indicating hehas multiple complications of this Type II Diabetes Mellitus - namely,peripheral neuropathy of his lower extremities, a bilateral eye disorder(retinopathy and a history of glaucoma and cataracts that have beenextracted), and a kidney disorder (nephropathy).CONCLUSIONS OF LAW1. The RO's December 2002 rating decision denying the Veteran's claimfor service connection for Type II Diabetes Mellitus is final and bindingon him based on the evidence then of record because he did not appealthat decision; however, there is new and material evidence since thatdecision to reopen this claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2010).2. Resolving all reasonable doubt in his favor, the Veteran's Type IIDiabetes Mellitus was presumptively incurred in service. 38 U.S.C.A. §§1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§3.102, 3.303, 3.307, 3.309 (2010).3. The peripheral neuropathy of the Veteran's lower extremities,bilateral eye disorder (retinopathy, etc.), and kidney disorder(nephropathy) are proximately due to, the result of, or aggravated bythis service-connected disability, the Type II Diabetes Mellitus. 38U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310(2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONSI. The Duties to Notify and AssistThe Veterans Claims Assistance Act (VCAA) enhanced VA's duties to notifyand assist Veterans with claims for VA benefits. The VCAA was codifiedat 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126, and theimplementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a),3.159, 3.326(a).Because the Board is reopening the claim for service connection for TypeII Diabetes Mellitus on the basis of new and material evidence, the Boardneed not determine whether there has been sufficient VCAA notice tocomply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006),wherein the U.S. Court of Appeals for Veterans Claims (Court) held thatVA must both notify a claimant of the evidence and information that isnecessary to reopen the claim and of the evidence and information neededto establish entitlement to the underlying benefit being sought, i.e.,service connection. To satisfy this requirement, VA adjudicators arerequired to look at the bases of the denial in the prior decision andprovide the claimant a notice letter describing what evidence would benecessary to substantiate those elements required to establish serviceconnection that were found insufficient in the previous denial. See alsoVA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office ofGeneral Counsel issued informal guidance interpreting Kent as requiringthe notice to specifically identify the kind of evidence that wouldovercome the prior deficiency rather than simply stating the evidencemust relate to the stated basis of the prior denial). This claim isbeing reopened, regardless.Furthermore, since the Board is also granting in full the underlyingclaim for service connection for Type II Diabetes Mellitus, as well asthe derivative (secondary) claims for peripheral neuropathy of the lowerextremities, a bilateral eye disorder (retinopathy, etc.), and a kidneydisorder (nephropathy), there is no need to discuss whether there hasbeen compliance with even the remaining notice-and-duty-to-assistprovisions of the VCAA. This is because even were the Board to assume,for the sake of argument, there has not been, this is ultimatelyinconsequential and, therefore, at most nonprejudicial, i.e., harmlesserror. 38 C.F.R. § 20.1102; Shinseki v. Sanders, 129 S. Ct. 1696 (2009).All of these claims are being granted, regardless.II. Whether there is New and Material Evidence to Reopen the Claimfor Service Connection for Type II Diabetes MellitusThe RO originally considered and denied this claim in December 2002.That same month, the RO sent the Veteran a letter notifying him of thatdecision and apprising him of his procedural and appellate rights. InJanuary 2003, in response, he submitted a notice of disagreement (NOD)with that decision denying this claim. In March 2004, the RO issued astatement of the case (SOC) continuing to deny this claim. However, theVeteran did not in response then submit a timely substantive appeal (VAForm 9 or equivalent statement) to complete the steps necessary toperfect his appeal of this claim. Therefore, that December 2002 ROdecision became final and binding on him based on the evidence then ofrecord and not subject to revision on the same factual basis. 38U.S.C.A. § 7105(c); see also 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200,20.302, 20.1103.The Veteran did not submit any additional evidence or correspondence inrelation to this claim until several years later, in January 2007, whenhe submitted several documents and a statement that he believedconstituted new and material evidence to reopen this claim.In February 2007, the RO sent the Veteran a letter informing him that hisclaim potentially could be affected by a then pending court case, Haas v.Nicholson, and that his claim would be decided upon guidance from VA'sGeneral Counsel. The Federal Circuit Court since has clarified thatservice in the Republic of Vietnam, for purposes of presuming a Veteranwas exposed to Agent Orange, requires service on the landmass of Vietnamor inland waterways. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), certdenied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525).So, in April 2008, the RO issued the rating decision at issue denying theVeteran's petition to reopen this claim on the grounds that no new andmaterial evidence had been received.Since the RO has previously considered and denied this claim, and theVeteran did not timely appeal the earlier decision, the first inquiry iswhether new and material evidence has been submitted to reopen thisclaim. 38 C.F.R. § 3.156(a). And irrespective of whether the ROdetermined there was new and material evidence to reopen this claim, so,too, must the Board make this threshold preliminary determination, beforeproceeding further, because it affects the Board's jurisdiction toadjudicate this claim on its underlying merits, i.e., on a de novo basis.Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v.Brown, 9 Vet. App. 167, 171 (1996). If the Board finds that new andmaterial evidence has not been submitted, then its analysis must end, asfurther analysis is neither required nor permitted. See Barnett, 83 F.3dat 1383-4. See, too, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir.2001); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to complywith its own regulations by ignoring issue of whether any new andmaterial evidence had been submitted to reopen the Veteran's previouslyand finally denied claims); and VAOPGCPREC 05-92 (March 4, 1992).If, on the other hand, there is new and material evidence, then the Boardmust reopen this claim and review its former disposition. 38 U.S.C.A. §5108.For a petition to reopen, as here, filed on or after August 29, 2001, newevidence means existing evidence not previously submitted to agencydecisionmakers; and material evidence means existing evidence that, byitself or when considered with previous evidence of record, relates to anunestablished fact necessary to substantiate the claim. New and materialevidence can be neither cumulative nor redundant of the evidence alreadyof record at the time of the last prior final denial of the claim soughtto be opened, and it must raise a reasonable possibility ofsubstantiating the claim. 38 C.F.R. § 3.156(a).In determining whether evidence is "new and material," the credibility ofthe evidence in question must be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). But see, too, Duran v. Brown, 7 Vet. App. 216(1994) ("Justus does not require the Secretary [of VA] to consider thepatently incredible to be credible").The RO's December 2002 rating decision that originally considered anddenied service connection for diabetes is the most recent final andbinding decision on this claim, so it marks the starting point fordetermining whether there is new and material evidence to reopen it. SeeEvans v. Brown, 9 Vet. App. 273, 283 (1996) (indicating VA is required toreview for newness and materiality only the evidence submitted by aclaimant since the last final disallowance of a claim on any basis todetermine whether a claim should be reopened and readjudicated on themerits).In that earlier December 2002 rating decision, the RO denied theVeteran's claim for service connection for diabetes because he did notserve in the Republic of Vietnam during the Vietnam era and, therefore,was not presumptively exposed to Agent Orange. See 38 C.F.R. § 3.2(f).Therefore, new and material evidence would consist of competent andcredible evidence either establishing his service in the Republic ofVietnam during the Vietnam era or alternatively indicating his diabetesis otherwise attributable to his military service - including fromexposure to Agent Orange elsewhere, outside of Vietnam. See 38 U.S.C.A.§ 1116(a)(1); 38 C.F.R. § 3.307(a)(6). See also Watson v. Brown, 4 Vet.App. 309, 314 (1993).The additional evidence submitted since that December 2002 ratingdecision includes, among other things, a copy of a September 1966 Reportof Staff Visit, Philippines, Taiwan, and Okinawa, forwarded by theVeteran's Congressman and received by the RO in November 2008, discussingrecommendations and procedures for handling herbicides.This additional evidence is both new and material to this claim becauseit relates to an unestablished fact necessary to substantiate this claimand raises a reasonable possibility of substantiating it - specifically,by supporting the Veteran's assertion that his diabetes is due to hisexposure to herbicides (Agent Orange) while serving in the Philippines,so outside of Vietnam. See 38 U.S.C.A. § 1116(a); 38 C.F.R. §§3.307(a)(6), 3.309(e). See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.2000) (direct service connection generally requires evidence of a currentdisability with a relationship or connection to an injury or a disease orsome other manifestation of the disability during service). See, too,Evans, 9 Vet. App. at 284 (indicating the newly presented evidence neednot be probative of all the elements required to award the claim, justprobative as to each element that was a specified basis for the lastdisallowance); and Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998)(wherein the Federal Circuit Court reiterated this, noting that newevidence could be sufficient to reopen a claim if it could contribute toa more complete picture of the circumstances surrounding the origin of aclaimant's injury or disability, even where it would not be enough toconvince the Board to grant a claim). Therefore, this claim for serviceconnection for diabetes is reopened.III. Entitlement to Service ConnectionService connection is granted if the evidence shows a current disabilityresulted from an injury or a disease that was incurred or aggravatedduring active military service in the line of duty. 38 U.S.C.A. § 1110;38 C.F.R. § 3.303(a).Stated somewhat differently, direct service connection generallyrequires: (1) medical evidence of a current disability; (2) medical, orin certain circumstances, lay evidence of in-service incurrence oraggravation of a relevant disease or injury; and (3) medical evidence ofa nexus or link between the claimed in-service disease or injury and thecurrent disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).Diabetes Mellitus will be presumed to have been incurred in service ifmanifested to a compensable degree of at least 10-percent disablingwithin one year after service. This presumption, however, is rebuttableby affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112,1113; 38 C.F.R. §§ 3.307, 3.309(a).According to 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913, this minimumcompensable rating of 10 percent for diabetes mellitus is warranted whenthe condition is manageable by restricted diet only.Also, as already alluded to, diseases associated with exposure to certainherbicide agents used in support of military operations in the Republicof Vietnam during the Vietnam era will be presumed to have been incurredin service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Thepresumption requires exposure to an herbicide agent and manifestation ofthe disease to a degree of 10 percent or more within the time periodspecified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore,even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e),he or she is presumed to have been exposed to herbicides if he or sheserved in Vietnam between January 9, 1962, and May 7, 1975, unless thereis affirmative evidence establishing he was not exposed to any such agentduring that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. §3.307(a)(6)(iii).This list of diseases presumptively associated with exposure to AgentOrange in Vietnam includes Type II Diabetes Mellitus. 38 U.S.C.A. §1116(a)(2); 38 C.F.R. § 3.309(e) (2009 and Supp. 2010); see Notice, 75Fed. Reg. 168, 53202-16 (Aug. 31, 2010).In October 2009, the Secretary of VA announced the decision to establishpresumptions of service connection, based upon exposure to herbicidesused in the Republic of Vietnam during the Vietnam era, for three newconditions: ischemic heart disease, Parkinson's disease, and B-cellleukemias. In November 2009, the Secretary directed the Board to stayaction on all claims for service connection that could not be grantedunder current law but may potentially be granted based on the planned newregulations. Chairman's Memorandum No. 01-09-25 implemented this stay.In August 2010, the Secretary published in the Federal Register a finalrule amending 38 U.S.C.A. § 3.309(e) to establish a presumption ofservice connection for these three new conditions. In October 2010, theSecretary issued a memorandum lifting the stay of appeals affected by thenew herbicide-related presumptions. Chairman's Memorandum No. 01-10-37lifted this stay, effective October 30, 2010. These diseases, along withthose specified in 38 C.F.R. § 3.309(e), which, again, includes Type IIDiabetes Mellitus, must have become manifest to a degree of 10 percent ormore at any time after service, except that chloracne (or other acneformdisease consistent with chloracne) must become manifest to a degree of 10percent or more within a year after the last date on which the Veteranwas exposed to an herbicide agent during active military, naval, or airservice. See 38 C.F.R. § 3.307(a)(6)(ii).So service connection is established either by showing direct serviceincurrence or aggravation or by using applicable presumptions, ifavailable. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).A disorder may be service connected if the evidence of record reveals theVeteran currently has a disorder that was chronic in service or, if notchronic, that was seen in service with continuity of symptomatologydemonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v.Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity ofsymptomatology under 38 C.F.R. § 3.303(b) is an alternative method ofsatisfying the second and third Shedden requirements to establishchronicity (permanency) of disease or injury in service and, in turn,link current disability to service. See also Clyburn v. West, 12 Vet.App. 296, 302 (1999).Service connection may be granted for any disease diagnosed afterdischarge, when all the evidence, including that pertinent to service,establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).Evidence relating a current disorder to service must be medical unless itconcerns a disorder that may be competently demonstrated by layobservation. Savage, 10 Vet. App. at 495-97. For the showing of chronicdisease in service, there is a required combination of manifestationssufficient to identify the disease entity, and sufficient observation toestablish chronicity at the time, as distinguished from merely isolatedfindings or a diagnosis including the word "chronic." 38 C.F.R. §3.303(b).Disability that is proximately due to, the result of, or chronicallyaggravated by a service-connected condition shall also be serviceconnected on this secondary basis. See 38 C.F.R. § 3.310(a) & (b). Seealso Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establishentitlement to service connection on this secondary basis, there must be:(1) evidence of a current disability; (2) evidence of aservice-connected disability; and (3) medical evidence establishing anexus (i.e., link) between the service- connected disability and thecurrent disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998);McQueen v. West, 13 Vet. App. 237 (1999); Velez v. West, 11 Vet. App.148, 158 (1998).Where the determinative issue involves medical causation or medicaldiagnosis, there generally must be competent medical evidence; layassertions regarding this generally are insufficient. Grottveit v.Brown, 5 Vet. App. 91, 93 (1993). A layperson generally is incapable ofopining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127(1998).There are exceptions to this general rule, however. Lay testimony iscompetent to establish the presence of observable symptomatology and "mayprovide sufficient support for a claim of service connection." Layno v.Brown, 6 Vet. App. 465, 469 (1994). When, for example, a condition maybe diagnosed by its unique and readily identifiable features, thepresence of the disorder is not a determination "medical in nature" andis capable of lay observation. In such cases, the Board is within itsprovince to weigh that testimony and make a credibility determination asto whether that evidence supports a finding of service incurrence andcontinuity of symptomatology sufficient to establish service connection.See Barr v. Nicholson, 21 Vet. App. 303 (2007).Lay evidence can be competent and sufficient to establish a diagnosis ofa condition when (1) a layperson is competent to identify the medicalcondition, (2) the layperson is reporting a contemporaneous medicaldiagnosis, or (3) lay testimony describing symptoms at the time supportsa later diagnosis by a medical professional. Jandreau v. Nicholson, 492F.3d 1372 (Fed. Cir. 2007).So medical evidence is not always or categorically required in everyinstance when the determinative issue involves either medical etiology ordiagnosis, but rather such issue may, depending on the facts of the case,be established by competent lay evidence under 38 U.S.C. § 1154(a). SeeDavidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board mustconsider the type of condition specifically claimed and whether it isreadily amenable to lay diagnosis or probative comment on etiology. SeeWoehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating thisaxiom in a claim for rheumatic heart disease).The determination as to whether the requirements for service connectionare met is based on an analysis of all the evidence of record and theevaluation of its credibility and probative value. Baldwin v. West, 13Vet. App. 1, 8 (1999).When there is an approximate balance of positive and negative evidenceregarding any issue material to the determination, the benefit of thedoubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38C.F.R. § 3.102.A. Type II Diabetes MellitusAs explained, the first and indeed perhaps most fundamental requirementfor any service-connection claim is there must be competent and credibleevidence confirming the Veteran has the claimed condition. Boyer, 210F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Withoutthis minimum level of proof, usually in the way of a relevant diagnosis,there can be no valid claim because there is no current disability toattribute to his military service.Here, the report of the Veteran's January 2007 VA Agent Orangeexamination provides a diagnosis of Type II Diabetes Mellitus. So thereis no disputing he has this claimed condition. Therefore, thedeterminative issue is whether it is attributable to his militaryservice. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("Adetermination of service connection requires a finding of the existenceof a current disability and a determination of a relationship betweenthat disability and an injury or a disease incurred in service."). See,too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v.West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App.546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir.1998).Concerning this, although the Veteran acknowledges he did not serve inVietnam, he maintains that he nonetheless was exposed to Agent Orangeelsewhere, in particular, while stationed in the Philippines, so is stillentitled to the presumption of service connection. He alternativelyargues that exposure to toxic water at Camp LeJeune, North Carolina, mayhave caused or contributed to his diabetes. See his attorney's July 2010letter.As is readily conceded, neither the Veteran nor the record suggests heserved in Vietnam as might entitle him to presumptive service connection.That is, although his service records indicate he served during theVietnam Era, there is no indication he served in Vietnam. Indeed, hisclaims file shows that in June 2002 the RO requested information from theNational Personnel Records Center (NPRC), a military records repository,regarding any service he might have had in Vietnam.The NPRC's response was that he did not have Vietnam service. So theBoard need not presume that he was exposed to herbicides (Agent Orange)during his service or that his Type II Diabetes Mellitus is a necessaryconsequence.But in determining whether service connection is warranted, VAadjudicators must consider all potential basis of entitlement reasonablyraised by the record. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed.Cir. 2004). Therefore, if it is instead established that he was exposedto Agent Orange elsewhere, outside of Vietnam, he would then still beentitled to the presumption that his Type II Diabetes Mellitus is aconsequence.When VA proposed to amend 38 C.F.R. § 3.309(e) in 2001, VA invited thesubmission of written comments concerning the proposed amendment. Withrespect to herbicide exposure outside of Vietnam, one commenter suggestedthat VA amend the proposed regulation to include Veterans who did notserve in Vietnam, but who were nevertheless exposed to herbicides whilein service. The response to that suggestion provides that 38 U.S.C.A. §1116(a)(3) establishes a presumption of exposure to certain herbicidesfor any Veteran who served in Vietnam between January 9, 1962 and May1975, and has one of the diseases on the list of diseases subject topresumptive service connection. However, if a Veteran who did not servein Vietnam was exposed to such an herbicide in service and has a diseaseon the list of diseases subject to presumptive service connection, VAwill presume that the disease is due to the exposure to herbicides.Therefore, there was no need to revise the regulation based on thiscomment. See 66 Fed.Reg. 23166 (May 8, 2001).Nevertheless, to establish his entitlement to this presumption, theVeteran must still establish that he was exposed to such herbicides whilein service. And for the reasons and bases discussed below, the Boardfinds this Veteran has.The Veteran has submitted several lay statements from himself and fellowservicemen, generally describing their exposure to containers marked withorange paint and other markings that were leaking and generally believedto contain Agent Orange. These statements indicate the Veteran was asecurity guard at Subic Bay, Philippines, and that his duties involvedpatrolling the pier where munitions and chemicals - including AgentOrange, were shipped in and stored, prior to being shipped out in supportof the Vietnam Conflict. See his attorney's July 2010 letter.While, generally, the Veteran and his fellow servicemen are competent toprovide evidence of their personal observations - including that hisduties and responsibilities in service involved patrolling the pier wheremunitions and substances were stored and that they saw containers markedwith orange paint that were leaking fluids, the exact contents of thosecontainers remains unknown. Their assertions tend to suggest theybelieved or suspected these containers held Agent Orange - largelybecause of the orange paint and/or other symbols on them, but they havenot provided any indication as to how they would come to know that thesecontainers did, in fact, contain Agent Orange, as opposed to being markedor painted in that manner for some other reason. So while they arecompetent to say the Veteran saw and perhaps even had occasion to handlethese containers, this is not tantamount to concluding this resulted inhis exposure to Agent Orange because even they concede they do not knowwhat the containers actually contained. See Washington v. Nicholson, 19Vet. App. 363 (2005) (A Veteran is competent to report what occurred inservice because testimony regarding firsthand knowledge of a factualmatter is competent.)That said, the records concerning the Veteran's military service confirmhe served in Subic Bay from January 1970 to September 1971. Theserecords also confirm his assertion that his military occupationalspecialty (MOS) was security guard. So the Board finds his and hisfellow servicemember's lay testimony regarding his duties includingpatrolling of the pier are substantiated by the record and, therefore,credible. So, to this extent, their statements are probative. SeeRucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App.465, 469 (1994) (distinguishing between competency ("a legal conceptdetermining whether testimony may be heard and considered") andcredibility ("a factual determination going to the probative value of theevidence to be made after the evidence has been admitted")).In further support of his claim, the Veteran also has submitted severalinternet articles discussing herbicides and their use during the VietnamEra - including a proposal for studies relating to the use of herbicidesin the Philippines and Vietnam and articles more generally discussing theassociation of certain diseases with exposure to herbicides. As well,and perhaps most notably, he submitted news articles indicating the NewZealand government manufactured Agent Orange for the United States andsent it to Subic Bay en route to Vietnam. And although these articlesare inconclusive as to whether he was personally exposed to Agent Orangeor any other herbicide, where it to be shown that Agent Orange or anyother such herbicide was routinely shipped in containers to Subic Bayduring the time he served there as a security guard or that it wasroutinely used there, this would in turn tend to support the notion thathe came into contact with the substance. Cf. Pentecost v. Principi, 16Vet. App. 124 (2002) (indicating the mere fact that the Veteran wasstationed with a unit that was present while enemy attacks occurredstrongly suggests that he was, in fact, exposed to those attacks).Further concerning this, in October 2008 the Veteran's Congressmansubmitted a letter in support of the Veteran's claim of having beenexposed to herbicides while in service. This Congressman's letterincludes a copy of a September 1966 Report of Staff Visit, Philippines,Taiwan, and Okinawa. This report indicates that an Air Forcerepresentative visited several named locations in August 1966 - includingSubic Bay, Philippines, specifically to participate in a jointNavy-Air Force Pest Control Conference and to review base programs andassist individual bases with the establishment of safer and moreeffective programs. Specifically, the items addressed were certificationof pest control personnel, pest control chemicals, pest controlequipment, termite control procedures, roach control procedures,microscopes for pest control shop, manning for pest control shop, andherbicides. And as specifically concerning these herbicides, the reportprovides that herbicide literature was handed out at the Subic Bayconference and samples mailed. It was noted additionally thatrestrictions on herbicide usage applied as they did for other pesticidesand herbicide usage and should be "backed-up" by usage sheets from eachmanufacturer. The recommendations addressed herbicide spraying, securing surgeon's approval of nonstandard herbicides, securing data sheets on each product, and procuring sprayers.The Veteran served at Subic Bay from January 1970 to September 1971, soover 3 years after the conference discussed in the September 1966 letterprovided by his Congressman. But articles reporting that herbicides weremanufactured in and shipped from New Zealand to Subic Bay suggest therewas a regular flow of these toxins to and from the pier where hepatrolled. Indeed, a conference was held at Subic Bay regarding the useand handling of herbicides, as a means of technical assistance. Soconsidering this evidence in the aggregate, it is just as likely as notthe Veteran was exposed to herbicides while at Subic Bay. And in thiscircumstance this reasonable doubt is resolved in his favor, allowing theBoard to in turn presume that service involved exposure to Agent Orange.See 38 C.F.R. § 3.102.VA's response to the suggested comment regarding whether Veterans should be entitled to presumptive service connection on the basis of proving actual exposure to herbicides clearly anticipates that such cases would exist.
That is, the statute, by its language, contemplates situationslike the Veteran's, where there was exposure to herbicides outside ofVietnam. See 66 Fed.Reg. 23166 (May 8, 2001). Proving such exposure toherbicides during his service should not be an insurmountable task. And,again, because this determination is material to the ultimate dispositionof his claim, he should be afforded the benefit of all reasonable doubt.Therefore, having established that he has Type II Diabetes Mellitus - adisease specified in 38 C.F.R. § 3.309(e) as presumptively associatedwith exposure to herbicides, and have established his exposure to theseherbicides (albeit outside of Vietnam), the requirements for presumptiveservice connection are met. See again 38 C.F.R. § 3.309(e). See alsoAlemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutelyaccurate" determination of etiology is not a condition precedent togranting service connection, nor is "definite" or "obvious" etiology).B. Conditions Secondary to the Type II Diabetes Mellitus, i.e., MultipleComplicationsThe Veteran claims he has several other disabilities on account of hisdiabetes, namely, peripheral neuropathy of his lower extremities, abilateral eye disability, and a kidney disability. See his attorney'sJuly 2010 letter.So these derivative claims are predicated on the notion that theseadditional disabilities are secondary to the now service-connected TypeII Diabetes Mellitus. See again 38 C.F.R. § 3.310(a) and (b) permittingservice connection on this secondary basis for disability that isproximately due to, the result of, or aggravated by a service-connectedcondition.Because the Board has determined the Veteran's Type II Diabetes Mellitusis a service-connected disability, meaning a disability that, here, ispresumptively related to his military service (and, in particular, to hisexposure to Agent Orange outside of Vietnam at Subic Bay), he need onlyestablish that these additional conditions are residual complications ofhis diabetes to also establish his entitlement to service connection forthem, as well, on this alleged secondary basis. See again Wallin v.West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237(1999); Velez v. West, 11 Vet. App. 148, 158 (1998).(i) Peripheral Neuropathy of the Lower ExtremitiesThe report of the Veteran's January 2007 VA Agent Orange Examinationindicates he has bilateral lower extremity peripheral neuropathy. Sothere is no disputing he has this claimed condition. See again Boyer,210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).There need only be linkage of this condition to his diabetes to confirmit is a complication of it.The report of that January 2007 VA Agent Orange Exam indicates theVeteran first had symptoms of peripheral neuropathy involving his lowerextremities in 1991, about the same time it was determined he hadelevated blood sugar. Nerve conduction velocity studies confirmed thisdiagnosis. And after clinical evaluation of the Veteran and review ofhis medical history, this VA examiner concluded the Veteran's bilaterallower extremity peripheral neuropathy is indeed a complication of hisdiabetes.The Veteran's VA treatment records support this assessment. Theserecords include "diabetic neuropathy" among his active problems and haveconsistently considered his peripheral neuropathy of his lowerextremities as related to his diabetes. Therefore, these records supportthe January 2007 VA examiner's conclusion that these conditions areetiologically related.(ii) Bilateral Eye DisabilityThe report of that January 2007 VA Agent Orange Exam also providesdiagnoses of diabetic retinopathy and history of cataracts, extracted andglaucoma, controlled. So there is no disputing the Veteran has bilateraleye disability. See again Boyer, 210 F.3d at 1353; Brammer v. Derwinski,3 Vet. App. 223, 225 (1992).Diabetic retinopathy is a retinopathy associated with diabetes mellitus,which may be of the background type, progressively characterized bymicroaneurysms, intraretinal punctuate hemorrhages, yellow exudates,cotton-wool spots, and sometimes macular edema that can compromisevision; or of the proliferative type, characterized by neovascularizationof the retina and optic disk, which may project into the vitreous,proliferation of fibrous tissue, vitreous hemorrhage, and eventuallyretinal detachment with blindness. See DORLAND'S ILLUSTRATED MEDICALDICTIONARY, 1659 (31st ed., 2007).The report of that January 2007 VA Agent Orange Exam indicates thecomplications of the Veteran's diabetes also include difficulties withhis vision in both eyes. He had laser surgery for micro aneurysms andretinal bleeding. He lost vision at one time due to his vitreal bleedingand required a vitrectomy. Glaucoma has been present and he has hadbilateral cataract extraction. Fundoscopic examination revealedbackground "diabetic retinopathy."The Veteran's VA treatment records support this assessment. For example,the report of a May 2007 comprehensive eye examination notes hisglaucoma, cataracts, and vision problems and provides a diagnosis of"diabetic retinopathy." This exam report also indicates his eye problemsare manifestations of his diabetes. His more recent treatment recordscontinue to support and reflect these diagnoses.The Veteran's private treatment records also consistently reflect andreiterate these diagnoses. For example, a July 2002 medical report froma private physician, Dr. J.S., indicates a fundoscopic examinationrevealed scattered micro aneurysms, provides a diagnosis of diabeticretinopathy, and indicates the Veteran has had "diabetic damage in botheyes."(iii) Kidney DisabilityAs well, the report of that January 2007 VA Agent Orange Exam providesdiagnoses of bilateral renal disease and diabetic nephropathy, so therealso is no disputing he has kidney disability. See again Boyer, 210 F.3dat 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).Diabetic nephropathy is the nephropathy that commonly accompanies laterstages of diabetes mellitus; it begins with hyperfiltration, renalhypertrophy, microalbuminuria, and hypertension; in time, proteinuriadevelops, with other signs of renal failure leading to end-stage renaldisease. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1261 (31st ed., 2007).The report of that January 2007 VA Agent Orange Exam indicates theVeteran's nephropathy, like the other conditions already discussed, is acomplication of his diabetes. So it, too, is deserving of serviceconnection.ORDERThe claim for service connection for Type II Diabetes Mellitus isreopened and granted on its underlying merits.Service connection also is granted on a secondary basis for the severalcomplications - namely, for peripheral neuropathy of his lowerextremities, a bilateral eye disability (retinopathy), and a kidneydisability (nephropathy).REMANDUnder McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disabilitycompensation (service-connection) claims, VA must provide a VA medicalexamination when there is: (1) competent evidence of a currentdisability or persistent or recurrent symptoms of a disability, and (2)evidence establishing that an event, injury, or disease occurred inservice or establishing certain diseases manifesting during an applicablepresumptive period for which the claimant qualifies, and (3) anindication that the disability or persistent or recurrent symptoms of adisability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence onfile for the VA to make a decision on the claim. See also 38 U.S.C.A. §5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). Consequently, for the reasonsand bases discussed below, the Board must remand the remaining claims.Like the peripheral neuropathy affecting his lower extremities, theVeteran claims he also has upper extremity peripheral neuropathy as aconsequence or complication of his Type II Diabetes Mellitus. Headditionally relates his hypertension, heart disability, and bilateralfoot disability to his diabetes. See his attorney's July 2010 letter.(i) Peripheral Neuropathy of the Upper ExtremitiesThe Veteran's VA medical records indicate he has received treatment forperipheral neuropathy. However, while peripheral neuropathy of his lowerextremities was noted in during his January 2007 VA Agent Orange Exam,peripheral neuropathy of his upper extremities was not. And while his VAtreatment records discuss the neurological manifestations of hisdiabetes, generally, unlike his bilateral lower extremity peripheralneuropathy, there is no diagnosis of bilateral upper extremity peripheralneuropathy as related to his diabetes.That notwithstanding, the Veteran is competent, for example, to proclaimhaving experienced numbness and weakness in his upper extremities, justas he apparently has in his lower extremities. So there is at least thesuggestion that these symptoms affecting his upper extremities have thesame source or cause as those affecting his lower extremities.The Veteran has not been provided a VA compensation examination for amedical opinion specifically concerning whether he has bilateral upperextremity peripheral neuropathy. And if he does, there equally is nomedical nexus opinion in the file regarding its etiology, and inparticular insofar as whether it is an additional complication of hisdiabetes.When determining whether a VA examination is required under 38 U.S.C. §5103A(d)(2), the law requires competent evidence of a disability orsymptoms of a disability, but does not require competent evidence of anexus, only that the evidence indicates an association between thedisability and service or a service-connected disability. See Waters v.Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).(ii) HypertensionThe Veteran's VA treatment records list hypertension among his ongoingdiagnoses, so there is no disputing he has this claimed condition.He also has submitted several articles generally suggesting arelationship between herbicide exposure and various disabilities -including hypertension. See, e.g., the article titled, "Experts tieAgent Orange to blood pressure risks." A medical article or treatise canprovide important support when combined with an opinion of a medicalprofessional. Mattern v. West, 12 Vet. App. 222, 228 (1999). See, too,Rucker v. Brown, 10 Vet. App. 67, 73-74 (1997) (holding that evidencefrom a scientific journal combined with doctor's statements was "adequateto meet the threshold test of plausibility"). Where medical article ortreatise evidence, standing alone, discusses generic relationships with adegree of certainty such that, under the facts of a specific case, thereis at least plausible causality based upon objective facts rather than onan unsubstantiated lay medical opinion, a claimant may use such evidenceto meet the requirement for a medical nexus. Wallin v. West, 11 Vet.App. 509 (1998). However, an attempt to establish a medical nexusbetween service and a disease or injury solely by generic information ina medical journal or treatise "is too general and inclusive." Sacks v.West, 11 Vet. App. 314, 317 (1998) (holding that a medical article thatcontained a generic statement regarding a possible link between aservice-incurred mouth blister and a present pemphigus vulgaris conditiondid not satisfy the nexus element).The Veteran has not been provided a VA compensation examinationspecifically addressing this claim. And while his January 2007 VA AgentOrange Exam noted hypertension, there was no opinion regarding whetherthere is an etiological relationship between his hypertension and hisservice-connected diabetes, his exposure to herbicides during service, orhis service in general. So the Board needs medical comment concerningthese possibilities before deciding this claim.(iii) Heart DisabilityThe Veteran's VA treatment records show that coronary artery disease(CAD) and paroxysmal atrial fibrillation are among his active problemsand indicate he has a history of myocardial infarction (i.e., heartattack). So there is no disputing he has heart disability. See againBoyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225(1992).Because of the recent revisions mentioned, ischemic heart disease is nowlisted among the diseases presumptively associated with exposure toherbicides. 38 C.F.R. § 3.309(e) (2009 and Supp. 2010); see Notice, 75Fed. Reg. 168, 53202-16 (Aug. 31, 2010).The Veteran has not been provided a VA compensation examinationaddressing this claim. And while his January 2007 VA Agent Orange Examnoted CAD and hypertensive cardiovascular disease, it did not provide anopinion regarding whether there is an etiological relationship betweenthis heart disability and his diabetes or his military service ingeneral.(iv) Bilateral Foot DisabilityWhile the Veteran's VA treatment records document his bilateral lowerextremity peripheral neuropathy - which the Board has found to beservice-connected, it is unclear whether the symptoms he describesaffecting his feet especially are part and parcel of this neuropathyversus some other disability. So a medical opinion is needed to assistin making this important determination. See Mittleider v. West, 11 Vet.App. 181, 182 (1998) (when it is not possible to separate the effects ofthe service-connected condition from a nonservice-connected condition, 38C.F.R. § 3.102, which requires that reasonable doubt on any issue beresolved in the Veteran's favor, dictates that such signs and symptoms beattributed to the service-connected condition.) A VA regulation,however, prohibits the pyramiding of ratings - that is, assigningseparate ratings based on the same manifestations of a disability. 38C.F.R. § 4.14. The Board, consequently, is requesting a medical opinionconcerning this claim as well.(v) Lung Disability, Claimed as due to Herbicide ExposureThe Veteran's private medical records show he has been treated forrespiratory-related symptoms and resultantly received diagnoses ofvarious relevant conditions, including asthma and bronchitis. See, e.g.,his June and July 2007 treatment records from Dr. R.R. So there iscompetent medical evidence of lung disability. See again Boyer, 210 F.3dat 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).In support of his claim that his lung disability is attributable toherbicide exposure during his military service, the Veteran has citedseveral articles discussing military toxic substances and lung andrespiratory problems. These articles, as mentioned, "can provideimportant support when combined with an opinion of a medicalprofessional." See Mattern v. West, 12 Vet. App. 222, 228 (1999).However, because the Veteran has not been provided an examinationconcerning this claim, there is no medical opinion addressing thiscausation issue.Accordingly, these remaining claims are REMANDED for the followingadditional development and consideration:1. Schedule appropriate VA examinations for medical nexus opinionsconcerning the etiology of the remaining claimed conditions at issue -namely, for peripheral neuropathy of the upper extremities, hypertension,heart disability, bilateral foot disability, and lung disability.Should the examiner diagnose peripheral neuropathy of the upperextremities, to confirm the Veteran has it, the examiner must thenprovide an opinion as to the likelihood (very likely, as likely as not,or unlikely) this upper extremity peripheral neuropathy is proximatelydue to, the result of, or aggravated by the service-connected Type IIDiabetes Mellitus or is otherwise attributable to the Veteran's militaryservice.Similarly, the examiner should provide an opinion as to the likelihood(very likely, as likely as not, or unlikely) the Veteran's hypertensionand heart disease are proximately due to, the result of, or aggravated byhis diabetes, alternatively related to his exposure to herbicides inservice, or otherwise attributable to his military service, includingwhether these conditions initially manifested within one year of hisdischarge from service.In providing this opinion, the examiner should clarify whether theVeteran has ischemic heart disease, which, as a result of the amendmentsto the applicable VA regulation, would require presuming it was incurredin service from exposure to Agent Orange.Still additional medical comment is needed concerning whether the Veteranhas a bilateral foot disability (that is, with symptoms distinguishablefrom those attributable to the now service-connected peripheralneuropathy affecting his lower extremities). Should the examinerdiagnose additional foot disability, he or she must provide an opinion asto the likelihood (very likely, as likely as not, or unlikely) thisadditional foot disability is proximately due to, the result of, oraggravated by the Veteran's diabetes or otherwise attributable to hismilitary service.A medical nexus opinion is needed, as well, concerning the likelihood(very likely, as likely as not, or unlikely) the Veteran has lungdisability, including asthma or bronchitis, as a result of exposure toherbicides during his military service or otherwise related orattributable to his military service.The term "as likely as not", i.e., at least 50 percent probability, doesnot mean merely within the realm of medical possibility, rather, that theweight of medical evidence both for and against a conclusion is so evenlydivided that it is as medically sound to find in favor of causation as itis to find against it.To facilitate making these important determinations, it is imperative thedesignated examiner(s) review the evidence in the claims file, includinga complete copy of this decision and remand, for the pertinent medicaland other history.The examiner(s) must discuss the rationale of all opinions provided,whether favorable or unfavorable, if necessary citing to specificevidence supporting or against the claim(s).The Veteran is hereby advised that failure to report for hisexamination(s), without good cause, may have detrimental consequences onthese pending claims for service connection. See 38 C.F.R. § 3.655.2. Then readjudicate these remaining claims in light of the additionalevidence. If any claim is not granted to the Veteran's satisfaction,send him and his attorney a supplemental statement of the case (SSOC) andgive them an opportunity to submit additional evidence and/or argument inresponse before returning the file to the Board for further appellateconsideration of these remaining claims.The Veteran has the right to submit additional evidence and argumentconcerning the claims the Board has remanded. Kutscherousky v. West, 12Vet. App. 369 (1999).These claims must be afforded expeditious treatment. The law requiresthat all claims that are remanded by the Board of Veterans' Appeals or bythe United States Court of Appeals for Veterans Claims for additionaldevelopment or other appropriate action must be handled in an expeditiousmanner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).______________________________________________KEITH W. ALLENVeterans Law Judge, Board of Veterans' AppealsDepartment of Veterans Affairs