Citation Nr: 18141874 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-41 711 DATE: October 11, 2018 REMANDED Entitlement to service connection for coronary artery disease, status post coronary artery bypass graft, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for hypertension, to include as secondary to coronary artery disease and diabetes mellitus, type II, and to include as secondary to medication for any service-connected disabilities, is remanded. Entitlement to service connection for acid reflux, to include as secondary to medication for any service-connected disabilities, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to coronary artery disease and diabetes mellitus, type II, and to include as secondary to medication for any service-connected disabilities, is remanded. Entitlement to service connection for tinnitus, to include as secondary to diabetes mellitus, type II, and to include as secondary to medication for any service-connected disabilities, is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND 1. Entitlement to service connection for coronary artery disease, status post coronary artery bypass graft, to include as due to exposure to herbicide agents, is remanded. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents, is remanded. The Veteran served on active duty with the United States Navy from June 1966 to March 1970. His service personnel records reflect he reported to the U.S.S. Arlington AGMR-2 beginning September 16, 1966, for sea duty, and that he completed sea duty on January 18, 1968. The Veteran is claiming that he was exposed to herbicide agents while serving aboard the U.S.S. Arlington AGMR-2 in waters outside of Vietnam due to his ship’s proximity. He has also claimed that he believed the U.S.S. Arlington AGMR-2 transported barrels of Agent Orange while he served there, thus exposing him to herbicide agents. Additionally, he has indicated that during service as a hospital corpsman, he escorted a soldier via helicopter to Da Nang Hospital; he stated he was in the country of Vietnam for several days but that he did not recall the date. The Board finds that this event is something that would be documented in deck logs or morning reports, if these documents exist or are available. However, the Agency of Original Jurisdiction (AOJ) has not attempted to obtain any such records in connection with the Veteran’s claim. Notably, the AOJ notified the Veteran in a September 2015 Statement of the Case that if he had information regarding the identity of the sick soldier or a time frame (within three months) where he flew ashore to Vietnam that he should provide this information. In Gagne v. McDonald, 27 Vet. App. 397, 403 (2015), the United States Court of Appeals for Veterans Claims (Court) held that VA was, at minimum, obligated to submit multiple requests to the Joint Services Records Research Center (JSRRC) covering the relevant time window in 60-day increments. That is, for example, if a veteran states that an event occurred in 1978, and the JSRRC is limited to searching within 60 day windows, VA must make seven separate requests covering the entire year. The Court in Gagne held that VA’s duty to assist was not bound by the JSRRC’s 60-day limitation, and the fact that multiple record searches may burden JSRRC employees does not make these efforts futile. The only limitation to this duty provided by the Court, other than when searches are “futile,” is that the duty to assist does not require unlimited searches, or “‘fishing expeditions’ over an indefinite period of time.” Under the circumstances of this case, the Board finds that additional efforts must be made to attempt to verify the Veteran’s reported trip ashore to Vietnam. 3. Entitlement to service connection for hypertension, to include as secondary to coronary artery disease and diabetes mellitus, type II, and to include as due to medication for any service-connected disabilities, is remanded. 4. Entitlement to service connection for acid reflux, to include as secondary to medication for any service-connected disabilities, is remanded. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to coronary artery disease and diabetes mellitus, type II, and to include as secondary to medication for any service-connected disabilities, is remanded. 6. Entitlement to service connection for tinnitus, to include as secondary to diabetes mellitus, type II, and to include as secondary to medication for any service-connected disabilities, is remanded. Given that the Veteran has claimed his hypertension, acid reflux, erectile dysfunction, and tinnitus are secondary to his coronary artery disease and diabetes mellitus, type II, and/or secondary to any medication he takes, the Board finds these issues are inextricably intertwined and that they must be remanded to be decided together. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 7. Entitlement to a compensable rating for bilateral hearing loss is remanded. A March 2015 letter from the Veteran’s attorney indicates that the Veteran reported recently undergoing audiological testing at the Wichita VA Medical Center (VAMC) and at another nearby VAMC. The Board notes that there are no VA treatment records associated with the Veteran’s claims file. Accordingly, on remand, these records and all outstanding VA treatment records must be obtained and associated with the evidence of record. Moreover, the Veteran’s attorney stated that the Veteran had been issued hearing aids in a March 2015 notice of disagreement. Given this evidence suggesting possible worsening and the fact that the Veteran’s last audiological examination for compensation purposes was performed in June 2014, over four years ago, the Board finds a new one should be performed while this claim is in remand status. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board. The AOJ must ensure that treatment records from all VAMCs are obtained, to include, but not limited to, all audiological evaluations performed at the Wichita VAMC. If necessary, the AOJ should contact the Veteran to determine all VAMCs where he has received treatment. 2. Contact all appropriate records repositories, to include, if appropriate, the JSRRC, to obtain any deck logs, morning reports, or any other relevant records associated with the U.S.S. Arlington AGRM-2 from September 17, 1966 through January 18, 1968. All efforts to obtain these records must be documented in the claims file and the AOJ must attempt to obtain these records until they are received, until it is determined they do not exist, or until it is determined that further attempts to obtain them would be futile. If these records do not exist or are unable to be obtained, a Memorandum of a Formal Finding of Unavailability must be prepared and associated with the evidence of record, which documents all attempts which were made to obtain said records. 3. Following completion of step 2, review the records obtained and determine whether there is sufficient evidence to find that the Veteran was presumptively exposed to herbicide agents during a trip from the U.S.S. Arlington AGMR-2 to Vietnam to escort a sick soldier to Da Nang Hospital. A formal finding regarding exposure to herbicide agents must be prepared and associated with the evidence of record. 4. If, and only if, service connection is warranted for coronary artery disease and/or diabetes mellitus, the AOJ must ensure that the following medical opinions are obtained: (a) Whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s erectile dysfunction is caused by his diabetes mellitus, type II, and/or coronary artery disease, to include any medications for these disabilities. (b) Whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s erectile dysfunction is aggravated by his diabetes mellitus, type II, and/or coronary artery disease, to include any medications for these disabilities. (c) Whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension is caused by his diabetes mellitus, type II, and/or coronary artery disease, to include any medications for these disabilities. (d) Whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s hypertension is aggravated by his diabetes mellitus, type II, and/or coronary artery disease, to include any medications for these disabilities. (e) Whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s acid reflux is caused by any medications for his service-connected disabilities. (f) Whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s acid reflux is aggravated by any medications for his service-connected disabilities. An examination of the Veteran is only required if the medical professional designated to provide the above opinions finds one is necessary. A complete rationale for all opinions must be provided. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for why this is so. 5. Following completion of steps 1-3, regardless of any determination regarding presumed exposure to herbicide agents, afford the Veteran a VA audiological examination to determine the current severity of his bilateral hearing loss disability and the etiology of his tinnitus. All required objective testing must be performed. The examiner must elicit from the Veteran and record in the examination report a description of the functional effects of the Veteran’s hearing loss on his everyday activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Following an examination, and with consideration of the Veteran’s statements, the examiner is requested to provide the following opinions: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s tinnitus began during or is etiologically related to his active duty service. (b) If the answer to (a) is in the negative, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s tinnitus was caused by his service-connected bilateral hearing loss disability. (c) If the answer to (a) is in the negative, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s tinnitus was aggravated by his service-connected bilateral hearing loss disability. (d) If service connection for diabetes mellitus, type II, is warranted, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s tinnitus was caused by his service-connected diabetes mellitus, type II. (e) If service connection for diabetes mellitus, type II, is warranted, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s tinnitus was aggravated by his service-connected diabetes mellitus, type II. (f) If the Veteran takes medication for any of his service-connected disabilities, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s tinnitus was caused by his medication for any service-connected disability. (g) If the Veteran takes medication for any of his service-connected disabilities, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s tinnitus was aggravated by his medication for any service-connected disability. A complete rationale for all opinions must be provided. If the examiner is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for why this is so. The examiner is informed that an opinion that tinnitus is not etiologically related to the Veteran’s active duty service which is solely based on the absence of complaints of hearing difficulties during or at separation from service is inadequate. 6. The AOJ should also undertake any additional development it finds necessary. 7. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel