Citation Nr: 1337841 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 06-24 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to the service-connected right knee disability. 2. Entitlement to service connection for restrictive lung disease or pulmonary fibrosis (claimed as lungs burnt from chemicals). 3. Entitlement to service connection for diabetes mellitus, type II. 4. Entitlement to service connection for bladder cancer with incontinence. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to a low back disability. 6. Entitlement to service connection for recurrent otitis externa, to include as secondary to diabetes mellitus, type II. 7. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: John B. Wells, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to April 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO in May 2005, and then again in November 2006. Transcripts of his testimony from both hearings are associated with the claims file. In August 2010, the Veteran also testified via video conference at the RO before the undersigned Veterans Law Judge sitting at the Board in Washington, DC. A transcript of his testimony is associated with the claims file. In February 2011 this matter was last before the Board at which time it was remanded for further development. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran asserts that bladder cancer and diabetes mellitus are attributable to exposure to herbicides. The Veteran asserts that his service aboard ships service off the coast of Vietnam involved exposure to herbicides through contaminated drinking water. In support of this theory, he has cited Australian Department of Veterans Affairs studies that indicated Australian sailors that served off the coast of Vietnam were exposed to herbicides via distilled drinking water. These studies also indicate a higher rate of cancer in the relevant Australian Navy population. The Veteran's attorney has requested that VA obtain the Deck Logs of the USS Samuel N. Moore, upon which the Veteran served from September 15, 1965, through March 16, 1966. He is particularly interested in the January 1966 Deck Logs for this ship. A review of the record indicates that the deck logs of the USS Samuel N. Moore have been searched, but none have been obtained or provided to the Veteran's attorney. Upon remand, the Veteran's attorney should be invited to provide a 60 day timeframe in which he would like VA to search these deck logs. The Army and Joint Services Records Research Center (JSRRC) has recently agreed to expand its research on a ship's history, to include deck log research. Also, in light of the Veteran's assertions and the aforementioned Australian studies, a VA medical examination should be obtained to address his claims for service connection of diabetes mellitus, type II, and bladder cancer. As noted above, the Veteran's claims for service connection of a low back disability, to include as secondary to the service-connected right knee disability and restrictive lung disease or pulmonary fibrosis (claimed as lungs burnt from chemicals), were last before the Board in February 2011. At this time they were remanded for further development, particularly to afford the Veteran VA examinations and obtain etiological opinions on these disabilities. Such examinations and opinions were obtained in March and April 2011. The March 2011 VA examination report contains a negative etiological opinion as to whether the Veteran's low back disability was "caused by or a result of" the Veteran's service-connected right knee condition. It does not address the question of aggravation, as requested by the Board, and it does not address whether a low back disability was incurred or is otherwise attributable to service, particularly injury therein. Accordingly, this matter must again be remanded. Likewise, in April 2011, the Veteran was afforded a VA examination to address the lung condition claim. The examination documents an assessment of COPD, which the examiner concluded he could not attribute to in-service exposure to toxic fumes. The examiner, however, did not address whether the assessed condition was the result of asbestos exposure, as the Board directed. The Board notes that the Veteran is claiming service connection for several conditions on a secondary basis. Upon remand the Veteran should be provided notice on how to substantiate a claim on a secondary basis. See 38 C.F.R. § 3.310 (2013). The Veteran has also requested in a July 2009 statement that VA obtain clinical records from an April 1964 hospitalization at the Okinawa Naval Hospital. Lastly, because the appellant's claim for service connection for erectile dysfunction is inextricably intertwined with the pending service connection claim for a low back disability, it is appropriate to defer consideration of this claim until the development requested is complete. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). It is likewise appropriate to defer adjudication of the claims for service connection of recurrent otitis externa and hypertension, as they are inextricably intertwined with the claim for service connection of diabetes mellitus, type II. Accordingly, a decision on the issues is deferred pending completion of the actions requested below. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VCAA notice that notifies him of the information and evidence not of record that is necessary to substantiate a claim for service-connection of a condition on a secondary basis. This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159.. 2. Request inpatient clinical records pertaining to the Veteran's hospitalization during service in April 1964 at the Okinawa Naval Hospital. If, after continued efforts to obtain Federal records VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran should also be informed of alternate sources of evidence that can supplement the available service treatment records. The Veteran must then be given an opportunity to respond. 3. Send the Veteran and his attorney a letter that asks the Veteran to provide a 60-day timeframe for which he desires that the deck logs of the USS Samuel N. Moore be searched and to identify the information for which a search should be conducted within those deck logs. In any event, request the deck logs of the USS Samuel N. Moore for January 1, 1966, through January 31, 1966. 4. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, refer the claims file to an appropriate medical professional for a medical opinion to address the appellant's claim for service connection of diabetes mellitus, type II. The claims file should be available for review by the clinician. The clinician should note that the claims file has been reviewed. Based on a review of the record and examination of the Veteran, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran incurred diabetes mellitus, or that the condition is otherwise attributable thereto, including claimed exposure to herbicides. The examiner's attention is directed to the literature in the claims folder which has been received from the Veteran and his representative, including the information pertaining to potential exposure of Royal Australian Navy personnel to polychlorinated dibenzodioxins and polychlorinated dibenzofurans via drinking water. Any and all opinions must be accompanied by a discussion of the underlying reasons, which may include citations to medical treatises and literature. If the medical expert is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further evidence or information would be useful in rendering an opinion. 5. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, refer the claims file to an appropriate medical professional for a medical opinion to address the appellant's claim for service connection of bladder cancer. The claims file should be available for review by the examiner. The clinician should note that the claims file has been reviewed. Based on a review of the record and examination of the Veteran, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran incurred bladder cancer, or that the condition is otherwise attributable thereto, including claimed exposure to herbicides and asbestos. The examiner's attention is directed to the literature in the claims folder which has been received from the Veteran and his representative, including the information pertaining to potential exposure of Royal Australian Navy personnel to polychlorinated dibenzodioxins and polychlorinated dibenzofurans via drinking water. Any and all opinions must be accompanied by a discussion of the underlying reasons, which may include citations to medical treatises and literature. If the medical expert is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further evidence or information would be useful in rendering an opinion. 6. Return the claims file to the examiner that offered the March 2011 opinion on the Veteran's low back condition for an addendum opinion or a suitable substitute. After a review of the claims file, the clinician should respond to the following questions and provide a full statement of the basis for the conclusion(s) reached: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran' current lumbar spine disability had its onset during service or is otherwise related to the claimed injuries in service? b) If the examiner responds negatively to question "a," the examiner is asked to address whether it is at least as likely as not that the low back disability was aggravated (i.e. worsened) beyond natural progression by the service-connected knee disability. A complete rationale should accompany all opinions expressed. 7. Return the claims file to the examiner that offered the April 2011 opinion on the Veteran's lung condition for an addendum opinion or a suitable substitute. After a review of the claims file, the author of the April 2011 VA opinion or other health care provider should respond to the following question and provide a full statement of the basis for the conclusion(s) reached: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's COPD had its onset during service or is otherwise the result of claimed asbestos exposure or chemical exposure during service? Regarding chemical exposure, the Board notes that the agency of original jurisdiction was asked to request clinical records pertaining to the Veteran's hospitalization in service. A complete rationale should accompany all opinions expressed. 8. After the development directed above has been completed to the extent possible, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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. 2013). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).