Citation Nr: 1746352 Decision Date: 10/18/17 Archive Date: 10/31/17 DOCKET NO. 13-08 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a left knee disability, to include osteoarthritis status post arthroplasty. 2. Entitlement to service connection for breathing problems and vision problems due to asbestos exposure. 3. Entitlement to service connection for a heart disability, to include coronary artery disease (CAD), or as secondary to herbicide agent exposure. 4. Entitlement to service connection for diabetes mellitus (DM), type II, to include as secondary to herbicide agent exposure. 5. Entitlement to service connection for bilateral lower extremity peripheral neuropathy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for a left knee disability, a heart disability, asbestos exposure, DM, and bilateral lower extremity peripheral neuropathy. The evidentiary record contains diagnoses of left knee arthritis and CAD in the Veteran. Accordingly, the Board has characterized the issues as stated on the title page to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009) (the Veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (regarding the scope of a claim). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Board sincerely regrets the additional delay, but finds that further development is required prior to final adjudication of the Veteran's claims. I. DM, CAD, and Bilateral Lower Extremity Peripheral Neuropathy The Veteran contends that his DM, CAD, and bilateral lower extremity peripheral neuropathy stem from herbicide agent exposure while his duty ship was in the Republic of Vietnam. Specifically, the Veteran has asserted that the U.S.S. Chevalier went "into the rivers and bays to inspect enemy junk boats for contraband" and that the ship "had a Vietnamese officer on board [that] would inspect the junks that were operating on the many rivers near or in the Mekong River delta." See March 2013 Form VA 9 and October 2014 Veteran statement. A Veteran who during active military, naval, or air service served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the Veteran was not exposed to any such agent. 38 U.S.C.A. § 1116(f) (West 2014 & Supp. 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2017). Historically, the Veterans Benefits Administration (VBA) has extended the herbicide agent presumption to naval ships which entered Vietnam's inland waterways or those which docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships). See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated September 5, 2017); see also VA Adjudication Procedure Manual M21-1 (M21-1), pt. IV, subpt. ii, § 1.H.2.b (last accessed October 11, 2017). Significantly, in April 2015, the Court of Appeals for Veterans Claims (Court), in addressing a claim for presumptive service connection based on herbicide agent exposure while a veteran's ship was anchored in Da Nang Harbor, held that the rationale underlying VA's designation of Da Nang Harbor as an offshore waterway rather than an inland waterway was inconsistent with the identified purpose of the statute and regulation (i.e. providing compensation to veterans based on the likelihood of exposure to herbicide agent). Gray v. McDonald, 27 Vet. App. 313, 326 (2015). As a result of the Gray decision, the VBA revised its manual as to which bodies of water in Vietnam constitute inland waterways. The revised M21-1 defines offshore waters as the high seas or any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. M21-1 pt. IV, subpt ii. § 1.H.2.b (last accessed October 11, 2017). The revised M21-1 specifically lists Da Nang Harbor as offshore waters (blue-water Navy service). M21-1, pt. IV, subpt. ii, § 1.H.2.c (last accessed October 11, 2017). In its current list titled Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, the VBA recognizes 5 categories of ships that operated on the waters of Vietnam. A ship is placed on this list when documentary evidence shows that it fits into a particular category. Evidence requirements for the presumption of Agent Orange exposure may vary depending on what dates the Veteran was aboard and what ship activity occurred on those dates. The five categories, in order from lowest to highest evidentiary burden, are as follows: (1) ships operating primarily or exclusively on Vietnam's inland highways; (2) ships operating temporarily on Vietnam's inland waterways; (3) ships that docked to shore or pier in Vietnam; (4) ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore; and (5) ships operating on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore. As to ships operating temporarily on Vietnam's inland waterways, the ships in this category entered Vietnam's inland waterways temporarily as part of their gunfire, interdiction or support missions. All Veterans who served aboard these vessels at the time of entry into Vietnam's inland waterways are eligible for the presumption of Agent Orange exposure. According to the list, the U.S.S. Chevalier (DD-805) operated on Saigon River during June 15-21, 1966 and the Mekong River Delta during January 25, 1968. On March 26, 1964, the Veteran commenced present continuous sea tour on the U.S.S. Chevalier. See March 1964 Military Personnel Record. He remained on this ship until February 18, 1966 before his transfer to U.S. Naval Station, San Diego, California for separation. See February 1966 transfer. Further, he earned an Armed Forces Expeditionary Medal for his service aboard that ship from February 16, 1965 to March 17, 1965. See March 1966 Military Personnel Record. The Armed Forces Expeditionary Medal was awarded by all branches of the service during the years before 1965 and may indicate duty or visitation in Vietnam. M21-1, pt. IV, subpt. ii, § 1.H.1.g (last accessed October 11, 2017). In response to a Personal Information Exchange System (PIES) request, VA learned that the Veteran served aboard the U.S.S. Chevalier which was "in the official waters of the Republic of Vietnam from April 1 to April 24, 1965, May 11 to June 08, 1965, July 3, 1965 (one day only) and July 4 to July 13, 1965. However, the record provides no conclusive proof of in-country service." See February 2008 National Personal Records Center (NPRC) response. Almost 9 years later, VA formally found that the information required to corroborate in-country Vietnam service described by the Veteran was insufficient to send to the US Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) record. See January 2017 formal finding. However, though the finding acknowledged that the U.S.S. Chevalier got underway from Subic Bay, Republic of the Philippines and lay in Da Nang Harbor, Republic of Vietnam ready to receive the U.S.S. Southerland (DD-743) motor whale boats on July 4, 1965, the finding does not account for time spent in official waters from February 16 to March 17, April 1 to April 24, and May 11 to June 08, 1965. Importantly, the JSSRC memo attached to the formal finding showed only the July 1 to July 31, 1965 deck logs for the U.S.S. Chevalier were reviewed. Thus, a remand is necessary to obtain the deck logs from February 16, 1965 to March 17, 1965, April 1 to April 24, 1965, and May 11 to June 8, 1965 to corroborate the Veteran's contentions. As the Veteran claims his peripheral neuropathy is also related to herbicide agent exposure, and VA treatment records show "DM A1C target (6.5-7.5% with [p]eripheral neuropathy" as a diagnosis, the Veteran's claim for bilateral lower extremity peripheral neuropathy is inextricably intertwined with the remanded DM claim. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). II. Left Knee Disability The Veteran currently has osteoarthritis in his left knee status post 2008 arthroplasty. See February 2009 VA treatment record. He claims that "while serving in the navy, [he] fell 15 to 20 feet down to the deck landing on [his] knees. Because [he] was a reservist, [his] chief would not let the corpsman write a report. [His] knee has hurt ever since." See March 2013 Form VA 9. In an August 2016 letter, VA informed the Veteran that after requesting his service treatment records from the National Personnel Records Center (NPRC), VA had determined that those records could not be located and "further attempts to obtain [them] would be futile." See August 2016 development letter. The Court has held that in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Nevertheless, the evidentiary record contains evidence of a motor vehicle accident in the mid-1980s and several falls post-service. See August 2010 VA treatment record. Therefore, a medical opinion is necessary to evaluate the etiology of any current left knee disability. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). III. Asbestos Claim As stated above, the Veteran worked on the U.S.S. Chevalier. His DD-214 does not list his specialty number and title. However, his Service Personnel Records indicate he was advanced to "MM3" effective October 16, 1965. Further, the Veteran contends that while working as a "machinist mate," he had to remove asbestos from pipes. See March 2013 Form VA 9. He also asserts that he has "been experiencing shortness of breath and vision problems ever since." Id. There is no specific statutory guidance with regard to asbestos related claims, nor has the Secretary promulgated any regulations in regard to such claims. Nevertheless, the M21-1 (Developing Claims for SC for Asbestos-Related Diseases) does provide guidance. See M21-1, pt. IV, subpt. ii, §1.I.3 (last accessed on October 11, 2017). With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). The applicable section of the M21-1 notes a Veteran's probability of asbestos exposure can be classified by military occupational specialty (MOS). If an MOS is listed as minimal, probable, or highly probable asbestos exposure should be conceded for the purposes of scheduling an examination. See M21-1, pt. IV, subpt. ii, § 1.I.3.d (last accessed on October 11, 2017). A Veteran with an MOS code "MM," or "machinist mate," is listed as having probably been exposed to asbestos. See Id. As the Veteran has complained of shortness of breath and vision problems since service, and the Board concedes asbestos exposure, a medical examination is necessary to determine if the Veteran's shortness of breath or vision problems are attributable to service. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Using the information previously provided by the Veteran, and additional information he may submit following this remand, make inquiries to all appropriate sources, including the Joint Services Records Research Center (JSRRC), to verify the whereabouts of the U.S.S. Chevalier (DD-805). A. The inquiries should encompass all of the Veteran's time on the U.S.S. Chevalier, to include deck logs from February 1 to March 31, 1965, April 1 to May 31, 1965, and June 1, 1965 to July 1, 1965. Per the explanation above, the AOJ should ensure that the entire period for which the Veteran was on the U.S.S. Chevalier is encompassed, submitting multiple 60-day requests to the JSSRC if necessary. Information requested should include any available ship evidence, to include deck logs, muster rolls, command chronologies and war diaries, monthly summaries, and morning reports. B. Issue a formal finding documenting the scope of the inquiry, the steps taken, and the ultimate findings. 2. Obtain a VA examination from an appropriately qualified VA examiner, to determine the nature and etiology of the Veteran's left knee disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The VA examiner is asked to respond to the following inquiries: A. Identify all left knee disabilities. B. Is it at least as likely as not that any of the Veteran's left knee disabilities, to include arthritis, were either incurred in, or are otherwise related to, the Veteran's active duty service? The medical professional must address the Veteran's contentions regarding his fall in service, subsequent falls, and any motor vehicle accidents post-service. In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. As the Veteran's service treatment records have been rendered unavailable to VA, the examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. C. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. D. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. E. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule the Veteran for a VA examination from an appropriately qualified VA examiner, to determine the nature and etiology of the Veteran's breathing or vision problems. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The VA examiner is asked to respond to the following inquiries: A. Identify all current breathing or vision disabilities. B. Are any of the Veteran's currently diagnosed breathing or vision disabilities attributable or related to asbestos exposure? C. If not, is it at least as likely as not that the Veteran's currently diagnosed breathing or vision disabilities were either incurred in, or are otherwise related to, the Veteran's active duty service? D. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. As stated above, in rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. E. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. F. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After remand directive #1 is completed, readjudicate the DM, CAD, and bilateral lower extremity peripheral neuropathy claims. After remand directive 2 is completed, reajudicate the left knee disability claim. After remand directive 3 is completed, readjudicate the asbestos exposure claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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 2014). _________________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).