Citation Nr: 1807181 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-19 630 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine. 2. Entitlement to service connection for degenerative joint disease of the elbows, shoulder, knees, and hips. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for heart disease. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for erectile dysfunction. 7. Entitlement to service connection for fatigue, claimed as secondary to heart disease. 8. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) from RO decisions of December 2009 and August 2010. The Veteran provided sworn testimony during an October 2016 videoconference hearing before the undersigned Veterans Law Judge. The Board has recharacterized the issues on appeal, as shown on the title page of this decision, to better reflect the procedural posture of some issues and our understanding of the medical facts of other issues, and in light of the Veteran's hearing testimony. Notably, the RO certified the issues involving the Veteran's lumbar spine and degenerative joint disease as issues involving whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for residuals of a left foot and ankle sprain. However, careful review of the history of these issues shows that the RO denied both claims in December 2009, and then again denied them in August 2010, before the denials had become final. The Veteran has prosecuted these claims since the December 2009 decision. Absent a final decision, new and material evidence is not required to reopen the claims; thus, the Board will review them herein under a standard of de novo review. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action on his part is required. REMAND Lumbar spine and joints The Veteran contends his back problems and degenerative joint problems stem from parachute jumps during service. His service personnel records confirm multiple parachute jumps in service. His private physician has submitted a statement that his back problems likely had their inception with the jumping during service. A VA examiner, however, has opined to the contrary, finding that the Veteran's back problems were more likely due to his strenuous post-service occupations, including working in the oil industry, shrimp boats, and the post office. Review of the Veteran's medical records over the years, however, shows that he has at different times provided relevant histories of having injured his back on the job, while working on a car, and in an automobile accident. These comments were made by the Veteran in connection with back complaints for purposes of seeking medical treatment; but not contemporaneous to these injuries, merely by history in explaining his later back complaints. Records pertaining to these injuries have not been obtained for review. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). A significant factor to be considered for any opinion is based on an accurate factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board recognizes that back problems, and degenerative joint problems are multi-faceted and multi-layered. The worker's compensation records and records relating to the automobile accident should be requested for review as an accurate factual history is required for an adequate opinion. The Board defers consideration of additional VA examination pending receipt of the additional development directed above in order to make proper factual determinations. See generally Kahana v. Shinseki, 24 Vet. App. 428 (2011) (discussing the "chicken-or-egg" dilemma faced by the Board when requesting opinions and making credibility determinations with an undeveloped record). Herbicide exposure The remaining service connection claims are premised upon a theory of presumptive service connection related to the Veteran's exposure to herbicides in Vietnam. Regulations pertaining to herbicide exposure provide that if a Veteran served on active duty in Vietnam during the Vietnam era, the Veteran is presumed to have been exposed to Agent Orange or similar herbicides. 38 C.F.R. § 3.307. These regulations also stipulate the diseases, including diabetes mellitus, ischemic heart disease, coronary artery disease, and coronary bypass surgery, for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Veteran contends that he was sent to Vietnam for a period of nearly four months. The supporting evidence is in conflict, however. The initial DD 214 Form the Veteran submitted to VA in September 1973 following his discharge from service, reflects he had one year and four months of foreign service in USARPAC (U.S. Army, Pacific Command) but no service in "RVN," (Republic of Vietnam) "Indochina," or Korea. Next to each of these designations was "NA," presumably for "not applicable." In September 2009, the Veteran submitted a copy of an application for the correction of his Army records dated in January 1987. On this application he had requested that his DD 214 be changed to reflect his service in Vietnam. He noted that he had worked in Air Delivery for the 549th QM CO, USARBCO. On the application he stated he had served in Vietnam from April 1972 to October 1972, and that he had been stationed in Okinawa, Japan, but sent to Vietnam to deliver ammo and supplies "when An Loc/Kontum RVN was surrounded by enemy forces." He wrote that he had "stayed in AMCV HQ, and I feel that not to include this on my DD214 and other military records is unjust, and an error, therefore it should be corrected." Along with this submission, the Veteran also included several photographs which he identified as having been taken in Vietnam, and two Certificates of Appreciation. The First Certificate was from the U.S. Military Assistance Command, Vietnam, dated in Saigon, Vietnam, in September 1972. It expressed appreciation to the Veteran for his support of "sustained combat aerial resupply operations to besieged areas in the Republic of Vietnam from April 24th 1972 to July 16th 1972. His high performance of duty was instrumental in aiding the unit in rigging over nine-thousand tons of emergency supplies, which assisted in lifting the siege at An Loc, Kontum, Minh Thanh and other isolated areas. This massive operation was established as being the largest aerial resupply ever conducted." The second certificate appears to be in Vietnamese. It contains the Veteran's name and a partially illegible date of "03 Jul 197_.) In May 2010, pursuant to the instant claims, the VA placed a request into the Personnel Information Exchange System (PIES), which is staffed by employees of the National Personnel Records Center (NPRC), asking for verification of any Vietnam service. The response, in June 2010, was "There is no evidence in this Veteran's file to substantiate any service in the Republic of Vietnam." Also in June 2010, the Veteran submitted a copy of a response he received from the Chief of the Army Board for Correction of Military Records, dated in November 1987. This document contains the following explanation: A review of the retired organizational reports for the 549th Quartermaster Company from April 1, 1972, to November 30, 1972, revealed that you had 30 days temporary duty (TDY) in Vietnam beginning April 24, 1972. A copy of this TDY order is enclosed and has been placed in your military record. No additional service in Vietnam has been found. The 30 days of TDY that you performed while in Vietnam has been computed in your foreign service shown in item 22c on your DD Form 214. "NA" is correctly shown in item 30 since you were only on 30 days TDY to Vietnam. If you feel an error or injustice still exists in your military record, a new DD Form 149 has been enclosed for your use. Attached to this memorandum is a copy of Temporary Duty orders for a large number of soldiers, including the Veteran. The orders themselves do not indicate the soldiers were being sent to Vietnam; rather they indicate they will "perform TDY requirements," and will comply with a number of supplemental instructions, which are not included on the pages provided. Two months later, in August 2010, the VA issued a memorandum containing a formal finding that the Veteran did not serve in Vietnam. According to the memorandum, this conclusion was based on the PIES certification, the absence of information regarding Vietnam service in the Veteran's personnel file, and the absence of any treatment occurring in Vietnam in the Veteran's service medical and dental records. There was no discussion or acknowledgement in the memorandum of the documents the Veteran had submitted, which on their face, do tend to show service in Vietnam. In April 2014, the Veteran submitted more photographs, which he identified as having been taken in Vietnam. He also submitted a history from the internet of "Quartermaster Aerial Delivery; The Story of the Airborne Rigger." According to this document: The 549th Quartermaster Company [was] stationed in Japan. While neither assigned nor stationed in Vietnam, this unit sent platoon sized and smaller elements on TDY (Temporary Duty) to Vietnam and Thailand. .... In May 1972, a platoon was sent to Tan San Nhut Air Base near Saigon to perform high altitude drops for ARVN troops and American advisors during the siege at An Loc. In July 2014, the Veteran submitted another copy of his DD214, which indicated RVN service from 4/72 to 10/72. The Veteran testified at the October 2016 hearing on appeal that he himself had typed the dates onto the DD214 which he submitted in July 2014. He explained that he had been so frustrated by the VA's failure to recognize his Vietnam service, that he amended the form himself to reflect the truth of the matter. He also stated he had written the Army Board of Correction of Military records in the 1980s simply to correct the record, as he had not filed for any Vietnam-related benefits at that point in time. He expressed frustration with the Board's response, as he felt he had been in Vietnam for longer than thirty days. He testified that while he was in Vietnam, his job had been rigging artillery, ammunition, and drums of fuel, along with food and rations. The Veteran's service personnel records file is available for review and confirms that he was assigned to the 549th Quartermaster Company in "HQUSARPAC" as an equipment storage specialist from February 1972 to October 1972 and as a forklift operator in Okinawa from October 1972 through May 1973. A different page of his personnel records shows that he received hazard pay for parachute duty, effective in February 1972, and that he was located in Okinawa from January 1972 through May 1973. The problem with the documents submitted by the Veteran is that so far they have not been confirmed through official channels. The November 1987 memorandum from the Army Board for Correction of Military Records indicated that the Veteran's TDY orders would be placed in his military records; however, no such form was present in the Veteran's service personnel records obtained by the VA after that date. Additionally, the memorandum indicated that a new DD Form 149 would be generated. This form likewise is not available for review by VA adjudicators. Thus, the chain of custody of the documents showing TDY to Vietnam is not firmly established, and the Veteran himself as conceded altering one of his military documents. When there is a question as to the accuracy or authenticity of a service record submitted by a claimant, the VA shall request verification of service from the service department. 38 C.F.R. § 3.203. As a general matter, reliance upon the records of the service department is now well settled. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994) [all for the general proposition that service department findings relative to an individual's service are "binding on the VA for the purposes of establishing service in the U.S. Armed Forces"]. Furthermore, the Court has clarified that for the purpose of verifying service, information from PIES and NPRC is not equivalent to actual service department verification. When a question remains, verification from the particular service department must be obtained. Tagupa v. McDonald, 27 Vet. App. 95 (2014). The Board therefore holds that a more thorough attempt to verify the Veteran's service must be undertaken. Upon remand, the matter should be referred to the Department of the Army, for a definitive determination as to whether the Veteran's military service included boots on the ground in Vietnam. The appeal involving TDIU benefits will be reviewed again following the resolution of the service connection claims upon which it rests. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers who treated the Veteran for lumbar spine problems, and joint problems involving his elbows, shoulder, knees, and hips following workplace accidents and/or automobile accidents in the 1970s and 1980s. The RO should also obtain information about the Veteran's employers at these times so that workman's compensation records can be requested. After securing the necessary releases, the RO should obtain medical records and worker's compensation records for inclusion in the claims file. 2. The RO must contact the Department of the Army through official channels to ascertain whether the Veteran's military service included boots on the ground in Vietnam. The RO should provide the appropriate entity with a copy of the Veteran's application for correction of his Army records dated in January 1987 including the photographs he identified as having been taken in Vietnam, the two Certificates of Appreciation, and the full response from the Army Board for Correction of Military Records. The RO should request authentication of the two Certificates of Appreciation as well as the full response from the Army Board for Correction of Military Records. 3. After the development requested above has been completed to the extent possible, the RO should again review the record, performing any additional evidentiary development which may become apparent. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).