Citation Nr: 18153169 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-48 267 DATE: November 27, 2018 ISSUES 1. Entitlement to service connection for a bilateral foot disability. 2. Entitlement to service connection for a bilateral leg disability. 3. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 4. Entitlement to service connection for a liver disability, to include as due to herbicide exposure. 5. Entitlement to service connection for a pancreatic disability, to include as due to herbicide exposure. 6. Entitlement to service connection for a spleen disability, to include as due to herbicide exposure. 7. Entitlement to service connection for skin cancer, to include as due to herbicide exposure. 8. Entitlement to service connection for hypothyroidism, claimed as under active thyroid, to include as due to herbicide exposure. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a bilateral leg disability is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is remanded. Entitlement to service connection for a liver disability, to include as due to herbicide exposure is remanded. Entitlement to service connection for a pancreatic disability, to include as due to herbicide exposure is remanded. Entitlement to service connection for a spleen disability, to include as due to herbicide exposure is remanded. Entitlement to service connection for skin cancer, to include as due to herbicide exposure is remanded. Entitlement to service connection for hypothyroidism, claimed as under active thyroid, to include as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to February 1972. This matter is before the Board of Veterans Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran ’s medals include the Vietnam Service Medal with Bronze Sar, and the Vietnam Campaign Medal with Device. Agent Orange exposure has not been conceded. This is discussed further below. In November 2016, the Veteran withdrew his request for a Travel Board Hearing due to family medical issues. 1. Entitlement to service connection for a bilateral foot disability is remanded. 2. Entitlement to service connection for a bilateral leg disability is remanded. A remand is necessary for additional development. To establish service connection a Veteran must generally show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). First, the Veteran filed his initial claim for service connection in March 2014. Also in March 2014, the Veteran through his representative submitted a letter to VA. The letter requests that action be taken with respect to his claims currently on appeal. The Veteran through his representative asserts in part, “It is requested that all appropriate development, to include conducting any necessary VA examination(s), be completed as soon as possible.” The Veteran filed a timely Notice of Disagreement (NOD) in June 2014. The Veteran perfected his appeal in September 2016. In the November 20, 2017 Appellant’s Brief, the Veteran through his representative asserts in part that, “Appellant had no Compensation & Pension examinations scheduled.” Next, he asserts, “Appellant has evidence in his Service Treatment Records (STRs) of a laceration to his right ankle.” The Board observes that an October 15, 1968 STR from “USPHS OPC Hono” shows a notation of an ankle laceration with a letter “L” that is circled, presumably indicating the left ankle. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant’s active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. Given the Veteran’s contentions and the record evidence of disability, the Board finds that VA examinations are warranted. 38 U.S.C § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, any outstanding VA treatment records since June 2016 should be included in the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Consequently, a remand is warranted. 3. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is remanded. 4. Entitlement to service connection for a liver disability, to include as due to herbicide exposure is remanded. 5. Entitlement to service connection for a pancreatic disability, to include as due to herbicide exposure is remanded. 6. Entitlement to service connection for a spleen disability, to include as due to herbicide exposure is remanded. 7. Entitlement to service connection for skin cancer, to include as due to herbicide exposure is remanded. 8. Entitlement to service connection for hypothyroidism, claimed as under active thyroid, to include as due to herbicide exposure is remanded. The Board incorporates its discussion from the sections above by reference. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on 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 to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii); see also 38 U.S.C. §§ 1116 (a)(1). “Inland waterways” are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam “brown water” Navy operated. M21-1, IV.ii.1.H.2.a; see also M21-1, IV.ii.2.C.3.m. This distinction was established because aerial spraying of Agent Orange occurred within the land boundaries of Vietnam, thus affecting the inland waterways; Agent Orange was not sprayed on offshore waters, and thus there is no presumption of exposure for service on the offshore open waters. M21-1, IV.ii.1.H.2.a. The coastline, which has generally been considered to run continuously across the mouth of a river, including river delta areas to the extent it is discernible, has been established as the dividing line separating inland waterways from offshore coastal waters. VA has identified certain bays and harbors that qualify as inland waterways. Thus, Veterans who served on Vietnam’s inland waterways are entitled to the presumption of service connection for certain herbicide diseases. Veterans who served in offshore waters – and never went ashore or entered inland waterways – do not qualify for the herbicide presumption. See Haas v. Peake, 525 F.3d at 1187-1190 (upholding VA’s interpretation of the applicable regulations as requiring that a veteran must actually have been present on the landmass (“foot-on-land”) or inland waters of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure); VAOPGCPREC 27-97 (July 1997) (holding that service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not, in and of itself, qualify as “service” in Vietnam); VAOPGCPREC 7-93 (August 1993) (noting a distinction between larger ocean-going vessels, referred to as “blue water” vessels, and smaller “brown water” vessels that patrolled near shore or along rivers). For the purposes of this section, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (2003). When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In other words, notwithstanding the presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for disability due to herbicide exposure with proof of direct causation. Id. By way of background, the Veterans Service Personnel Records (SPRs) show service during the Vietnam Era aboard the USCGC Mellon, WHEC 717. The Veteran submitted a May 2014 Statement in Support of Claim regarding his claimed service in the Republic of Vietnam. He asserts, “The US Coast Guard Ship USCGC Mellon had five Medcap tours in Vietnam. The attached picture shows the Vietnam [illegible] Counts on one of those missions. Page 4 is a blow up of that photo. Note the Veteran was also awarded the Vietnam Campaign Medal /device for service in Vietnam (USCGC WHEC 717).” He attached photographs with explanatory captions. In the August 2016 Statement of the Case (SOC), VA did not concede herbicide exposure. In the November 20, 2017 Appellant’s Brief, the Veteran through his representative asserts up front that VA should have found that the Veteran’s ship was on the Brown Water Agent Orange List. He contends that requests were not completed to the Joint Services Records Research Center (JSRRC) to verify the Veteran’s service. Later, the Veteran through his representative asserts, “based on the regulations noted, and the fact that the Appellant’s ship was on the AO Brown Water List, C&P exams should be scheduled and if needed a Joint Services Records Research Center (JSRRC) memo created.” Here, the Veteran’s asserted exposure to Agent Orange in service has not been fully developed by the AOJ in the first instance. In light of his contentions and evidence presented, development consistent with the M21-1 should be undertaken, to include contacting the VA Compensation and Pension Service and the Joint Services Records Research Center (JSRRC) to verify the claimed Agent Orange exposure. Next, ongoing VA treamtent records show diagnostic impressions of various disabilities, including diabetes, cirrosis of the liver, enlarged spleen, non-melanoma skin cancer, and hypothyrdoisim. Given the Veteran’s contentions and the record evidence of disability, the Board also finds that VA examinations are necessary. 38 U.S.C § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain updated copies of the Veteran’s VA treatment records since June 2016, and associate them with the Veteran’s claims folder. 2. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents. If more details are needed, contact the Veteran to request the information. If herbicide exposure cannot be verified by the VA Compensation Service, seek verification from the JSRRC. Forward the Veteran’s contentions regarding the nature of his exposure to herbicides to the JSRRC, and request verification of this. The JSRRC should attempt to verify the claimed exposure by taking into account the Veteran’s military unit, location, dates at the location, military occupation, and any other relevant facts as shown by his service records. If insufficient information is present to permit a search by the JSRRC, refer the case to the JSRRC coordinator to issue a Formal Finding that sufficient information required to verify herbicide exposure does not exist. Attention is directed to the Veteran’s Statement in Support of Claim and attached photographs received by VA in May 2014. 3. Please schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral foot disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The examiner should provide a rationale for all opinions expressed. 4. Please schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral leg disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. Attention is directed to an October 15, 1968 STR showing “laceration L ankle.” The examiner should provide a rationale for all opinions expressed. 5. Please schedule the Veteran for a VA examination to determine the nature and etiology of any diabetes mellitus, type II. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. If and only if the Veteran’s exposure to herbicides is confirmed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to exposure to herbicides. The examiner should provide a rationale for all opinions expressed. 6. Please schedule the Veteran for a VA examination to determine the nature and etiology of any liver disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. If and only if the Veteran’s exposure to herbicides is confirmed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to exposure to herbicides. The examiner should provide a rationale for all opinions expressed. 7. Please schedule the Veteran for a VA examination to determine the nature and etiology of any pancreatic disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. If and only if the Veteran’s exposure to herbicides is confirmed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to exposure to herbicides. The examiner should provide a rationale for all opinions expressed. 8. Please schedule the Veteran for a VA examination to determine the nature and etiology of any spleen disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. If and only if the Veteran’s exposure to herbicides is confirmed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to exposure to herbicides. The examiner should provide a rationale for all opinions expressed. 9. Please schedule the Veteran for a VA examination to determine the nature and etiology of any skin cancer. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. If and only if the Veteran’s exposure to herbicides is confirmed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to exposure to herbicides. The examiner should provide a rationale for all opinions expressed. 10. Please schedule the Veteran for a VA examination to determine the nature and etiology of any hypothyroidism, claimed as under active thyroid. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. If and only if the Veteran’s exposure to herbicides is confirmed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to exposure to herbicides. The examiner should provide a rationale for all opinions expressed. (Continued on the next page.) 11. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs