Citation Nr: 1823632 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 14-39 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the issue of service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure. 2. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure. 3. Entitlement to service connection for ischemic heart disease, to include as due to herbicide (Agent Orange) exposure. 4. Entitlement to service connection for RIGHT lower extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure. 5. Entitlement to service connection for LEFT lower extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure. 6. Entitlement to service connection for RIGHT upper extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure. 7. Entitlement to service connection for LEFT upper extremity peripheral neuropathy, to include as due to herbicide (Agent Orange) exposure. 8. Entitlement to service connection for bilateral hearing loss disability. 9. Entitlement to service connection for tinnitus. 10. Entitlement to service connection for a sleep disorder. 11. Entitlement to service connection for a headache disorder. 12. Entitlement to service connection for bilateral carpal tunnel syndrome. 13. Entitlement to service connection for a thoracolumbar spine disorder. 14. Entitlement to service connection for a cervical spine (neck) disorder. 15. Entitlement to service connection for a RIGHT knee disorder. 16. Entitlement to service connection for a LEFT knee disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the U.S. Air Force from April 1961 to March 1965. Prior to this, the Veteran served in the Army Reserve from January 1957 to April 1961, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from August 2010 and June 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran requested a Board videoconference hearing before a Veterans Law Judge in his November 2014 VA Form 9. However, he cancelled that request in December 2017. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Board is reopening the new and material evidence claim for type II diabetes mellitus on the basis of new and material evidence. However, the Board is REMANDING all service connection issues on appeal to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 2002 rating decision, the RO previously considered and denied a claim for service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure. 2. The Veteran was notified of the April 2002 rating decision and of his appellate rights, but he did not appeal. There was also no evidence received within one year of the issuance of this decision. 3. The lay evidence received after the April 2002 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2002 rating decision, which denied service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2002). 2. The evidence received subsequent to the April 2002 rating decision is new and material, and the claim for service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). With regard to the new and material evidence issue for type II diabetes mellitus, in a recent opinion, VA's Office of General Counsel concluded that 38 U.S.C. § 5103(a)(1) did not require VA, upon receipt of a previously denied claim, to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim. See VAOPGCPREC 6-2014 (November 21, 2014). The Office of General Counsel determined that Kent v. Nicholson, 20 Vet. App. 1 (2006), was no longer controlling insofar as it construed former 38 U.S.C. § 5103(a) to require that VA provide case-specific notice to a claimant who had filed an application to reopen a previously denied claim. To summarize, in a claim to reopen, while VA is not required to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim, it is required "to explain what 'new and material evidence' means." Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). In the present case, the March 2012 VCAA letter discussed and defined new and material evidence. In any event, any defect in notice would not be prejudicial to the Veteran, given the completely favorable disposition of the new and material evidence issue on appeal, since the Board is reopening the type II diabetes mellitus issue. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). With regard to the remaining service connection issues on appeal, the Board finds that further evidentiary development is needed and will be discussed in the remand below. Therefore, an analysis regarding compliance with the VCAA for the service connection issues is not required at this time. II. New and Material Evidence for Type II Diabetes Mellitus The Veteran contends that his current type II diabetes mellitus was the result of his exposure to herbicides while the Veteran was stationed in Okinawa Air Force Base in Japan, or during temporary duty (TDY) assignments in Vietnam during active service in the early 1960s. (The Veteran's service personnel records (SPRs) confirm that he served at the U.S. Air Force Base in Okinawa, Japan from November 1963 to March 1965, but there is no confirmation of TDY service in Vietnam). The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). In addition, a veteran who during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, as determined by the DOD, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iv); 76 Fed. Reg. 4,245 - 4,247 (January 25, 2011). However, the presumption of service connection for herbicide-related diseases could also apply if exposure to herbicide agents is shown on a factual basis. In essence, if the veteran did not serve in Vietnam during the Vietnam Era or at the Korean DMZ in a particular unit during the required timeframe, actual exposure to herbicide agents must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseases under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicide agents is not presumed in such instances, but the exposure to one of the herbicides listed at 38 C.F.R. § 3.307(a)(6)(i) can still be established if shown by the facts of the case. Once exposure to herbicide agents has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Type II diabetes mellitus is listed as a disease associated with herbicide exposure for purposes of the above presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. 3.309(e). To warrant service connection, Type II diabetes mellitus may manifest to a degree of at least 10 percent at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). In this regard, VA treatment records dated from 1999 to 2017 and a VA diabetes mellitus examination dated in February 2015 confirm that the Veteran has type II diabetes mellitus, which was manifest to a degree of at least 10 percent or more after service. 38 C.F.R. § 3.307(a)(6)(ii). Therefore, the Veteran has type II diabetes mellitus, which is a disability associated with herbicide exposure for purposes of this presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Therefore, the central question in the present case is whether the evidence establishes on a factual basis that the Veteran was exposed to Agent Orange or other herbicides while serving in Okinawa, Japan, from November 1963 to March 1965, or whether he is presumed to have been exposed to herbicides on the basis of any Vietnam service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii), (iv); 3.313(a). In an earlier April 2002 rating decision, the RO denied a claim for service connection for type II diabetes mellitus, to include as due to herbicide (Agent Orange) exposure. The RO determined that although the Veteran had a current diagnosis of type II diabetes mellitus, this condition neither occurred in nor was caused by service. In addition, there was no evidence showing service in Vietnam for purposes of applying the herbicide presumption. The Veteran was notified of the April 2002 rating decision and of his appellate rights, but he did not submit a notice of disagreement, or new and material evidence, within one year of the notice of decision. Therefore, the April 2002 rating decision became final for the type II diabetes mellitus issue. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2002). The Veteran filed his claim to reopen service connection for type II diabetes mellitus in June 2011. In the June 2013 rating decision on appeal and in the October 2014 Statement of the Case (SOC), the RO indicated it was not reopening the claim. But the RO also appeared to adjudicate the type II diabetes mellitus claim on the underlying merits (on a de novo basis). In any event, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the type II diabetes mellitus claim, before proceeding to readjudicate the underlying merits of the claim. If the Board finds that no new and material evidence to reopen the service connection claim has been offered, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade, 24 Vet. App. at 119. For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the Board finds that new and material evidence has been received for the type II diabetes mellitus issue, subsequent to the final April 2002 rating decision. See 38 C.F.R. § 3.156(a). The Veteran has provided additional lay statements describing how he was allegedly exposed to Agent Orange or other herbicide while stationed in Okinawa Air Force Base in Japan, or during temporary duty (TDY) assignments in Vietnam, during active service in the early 1960s. See January 2013 Report of General Information (VA Form 21-0820); June 2013 NOD; November 2014 VA Form 9; and February 2015 VA diabetes mellitus examination report. Prior to the April 2002 rating decision, these lay assertions describing the details of herbicide exposure for the Veteran were not of record. Specifically, in Okinawa, Japan at the U.S. Air Force Base, the Veteran alleges that he was in close proximity to the flightline which was sprayed with herbicides to control the vegetation. He also says that Agent Orange was stored at the base and flown as cargo in airplanes in Japan at that time. In this way, the Veteran reported that he was exposed to Agent Orange or other herbicide during active duty. Assuming the credibility of the Veteran's additional lay statements, for purposes of reopening only, the Board finds that this additional evidence relates to a previously unestablished fact and raises a reasonable possibility of substantiating the type II diabetes mellitus claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Court has held that a lay statement, when competent, can be material for purposes of reopening a claim. Shade, 24 Vet. App. at 122. Accordingly, the Board concludes that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for type II diabetes mellitus. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of this service connection claim can be fully addressed. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for type II diabetes mellitus is reopened, and to this extent only, the appeal is granted. REMAND However, before addressing the merits of all service connection issues on appeal, the Board finds that additional development of the evidence is required. First, the VBA Live Manual provides a table detailing the steps the AOJ must take to verify herbicide exposure on a factual basis, when a veteran alleges exposure in locations excluding Vietnam or the Korean DMZ or Thailand. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 7, Block a (November 21, 2016). In the present case, the Veteran has alleged that he was exposed to Agent Orange or other herbicide while stationed in Okinawa Air Force Base in Japan when he served in the U.S. Air Force from 1963 to 1965. He states that in Japan he was in close proximity to the flightline which was sprayed with herbicides to control the vegetation. He also says that Agent Orange was stored at the base and flown as cargo in airplanes in Japan at that time. In this way, the Veteran reported that he was exposed to Agent Orange or other herbicide during active duty in Okinawa, Japan. Step 1 of the M21-1 table states that the AOJ should ask the Veteran to provide the approximate dates, location, and nature of the alleged herbicide exposure in Okinawa, Japan, including the VBMS AO - Exposure General Notice paragraph. The AOJ did not send this notice letter to the Veteran. In addition, the Veteran also alleges that when he served in the U.S. Air Force from November 1963 to March 1965, he would fly into Danang, Vietnam on TDY duty and spend a day or two, before flying back to Okinawa, Japan on a regular basis. Thus, a notice letter with an AO - Submit Evidence of Vietnam Service Paragraph should also be sent to the Veteran, as the AOJ failed to send this notice to him. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 1, Block f (June 23, 2017). Step 2 of the M21-1 table states the AOJ should refer the case to the Joint Services and Research Center (JSRRC) Coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. In September 2014, the JSRRC Coordinator issued a September 2014 Formal Finding of the inability to verify exposure to Agent Orange or other Herbicides. However, in the present case, the Board sees the Veteran has in fact provided sufficient information to attempt to verify herbicide exposure at the U.S. Air Base in Okinawa, Japan from November 1963 to March 1965. If he provides even more information after this remand, that can be considered as well. Step 3 of the M21-1 table states that the AOJ should send an E-mail inquiry with the dates, location, and circumstances of claimed herbicide exposure in Okinawa, Japan to the Compensation Service at (VAVBAWAS/CO/211/AGENTORANGE) (mailto:AGENTORANGE.VBACO@va.gov) and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed at the U.S. Air Force Base in Okinawa, Japan from November 1963 to March 1965. Steps 4 and 5 of the M21-1 table state that if the Veteran has provided sufficient information to permit a search by the JSRRC, then the AOJ should then send a request to the JSRRC for verification of alleged exposure to herbicides for the Veteran in Okinawa, Japan from November 1963 to March 1965. In summary, upon remand, the AOJ should follow the above steps listed in the M21-1 table in order to attempt to verify exposure to herbicides for the Veteran at the U.S. Air Force Base in Okinawa, Japan from November 1963 to March 1965. Second, in June 2016 and September 2016 VA care management notes, the Veteran reported $300 per month of Social Security Disability Income (SSDI). He denied any retirement income from the Social Security Administration (SSA). Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the veteran in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). VA must make as many requests as necessary to obtain "relevant" SSA records to include the complete SSA decision and accompanying medical records, unless a determination is made that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). Thus, a remand is warranted to obtain complete SSA disability records based on the Veteran's SSDI income, as these SSA disability records may be pertinent to the service connection issues on appeal. Third, the Veteran has identified potential, outstanding private medical evidence relevant to his claims for service connection for a heart disorder and a sleep disorder. See February 2015 VA diabetes mellitus examination; April 2012 Crosspoint Medical Clinic record. However, the Veteran has not completed the necessary authorization forms sent to him (VA Forms 21-4142) to secure any private medical evidence. In this regard, he did not provide the full names of the provider(s) who treated him, the specific dates of treatment, or any address or telephone information. VA is required to make reasonable efforts to obtain all "relevant" records, including private medical records like these, which the Veteran adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). Thus, on remand, the Veteran should be provided the opportunity to submit these private medical records for his heart disorder and sleep disorder, or to authorize VA to obtain such private records on his behalf. Fourth, since all service connection issues on appeal are already being remanded for further development, the Board sees the Veteran's VA treatment records on file from the Valley Coast Bend VA healthcare system in Texas date to November 2017. If the Veteran has had any additional treatment at the VA, these records should be obtained. VA's duty to assist includes obtaining records of VA medical treatment identified by the Veteran, regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). VA must continue to obtain such records unless it is documented that the records do not exist or that further efforts would be futile. 38 U.S.C. § 5103A(c)(2) (2012); 38 C.F.R. § 3.159(c)(2), (c)(3) (2017). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). Fifth, after securing any additional evidence above, the Veteran should be scheduled for a VA audiology examination and opinion to determine whether he has current bilateral hearing loss disability under 38 C.F.R. § 3.385, current tinnitus, and the etiology of such disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Sixth, after securing any additional evidence above, the Veteran should be scheduled for the appropriate VA examinations to determine the etiology of any current low back, neck, bilateral knee, and carpal tunnel syndrome of the hands disorders. See id. During the course of the appeal, the Veteran was not provided VA examinations and opinions to determine if service connection was warranted for these disorders. On a side note, the Board acknowledges that in a February 2008 letter to the Veteran, the National Personnel Records Center (NPRC) concluded that the Veteran's Army Reserve records dated from 1957 to 1961 appear to have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri. In any event, the Veteran is credible when he states that he served in the Army Reserve from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas. He had artillery training at Fort Sill, Oklahoma and at Fort Polk, Louisiana during this timeframe. However, any Army Reserve treatment or personnel records from this period would have been sent to the NPRC, which already provided a negative response. Moreover, there is also no allegation by the Veteran or any other evidence of record that he was treated for any of the disabilities on appeal during his Army Reserve service from 1957 to 1961. On several occasions, the Veteran has reiterated that he did not receive in-service treatment for the issues on appeal. Thus, there is no reasonable basis for further attempts to secure these Army Reserve records. Additionally, at a February 2015 VA diabetes mellitus examination, the Veteran reported that when he served in the U.S. Air Force from 1963 to 1965, he would fly into Da Nang, Vietnam on TDY duty and spend a day or two, and then fly back to Okinawa, Japan on a regular basis. The Veteran is trying to establish that he served in Vietnam because VA law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). But on this issue, the Veteran's SPRs confirm that although he served at the U.S. Air Force Base in Okinawa, Japan from November 1963 to March 1965, there is no confirmation in his SPRs of any TDY service in Vietnam. In fact, a May 2013 NPRC PIES response concluded that all available requested SPRs relevant to temporary Vietnam duty / visitation, to include TDY orders, performance evaluations, and any other evidence of temporary duty or visitation to Vietnam, were already sent to the RO. A review of these SPRs did not show any TDY service in Vietnam for the Veteran. In fact, in an April 2003 Application for Pension (VA Form 21-526) and January 2010 Application for Compensation (VA Form 21-526), the Veteran advised the RO that he did not serve in Vietnam. He added he had no exposure to Agent Orange or other herbicides during service. Thus, there is no reasonable basis for further attempts to verify any TDY service in Vietnam. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ must attempt to verify exposure to herbicides for the Veteran at the U.S. Air Force Base in Okinawa, Japan from November 1963 to March 1965, on a factual basis. To do this, the AOJ must follow the appropriate steps listed in the Table in the VBA Live Manual. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 7, Block a (November 21, 2016) - (Table for Verifying Herbicide Exposure on a Factual Basis in Other Locations). Specifically the AOJ must do the following per the M21-1 Table: (A) In a notice letter, ask the Veteran to provide the approximate dates, location, and nature of the alleged herbicide exposure at the U.S. Air Force Base in Okinawa, Japan. This letter should include the VBMS AO - Exposure General Notice Paragraph and the AO - Submit Evidence of Vietnam Service Paragraph (because of his alleged TDY duty in Vietnam as well). (B) Then send an E-mail inquiry with the dates, location, and circumstances of the claimed herbicide exposure in Okinawa, Japan to the Compensation Service at (VAVBAWAS/CO/211/AGENTORANGE) (mailto:AGENTORANGE.VBACO@va.gov) and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed at the U.S. Air Force Base in Okinawa, Japan from November 1963 to March 1965. (C) Then, if and only if the Veteran has provided sufficient information to permit a search by the JSRRC, the AOJ should send a request to the JSRRC for verification of alleged exposure to herbicides for the Veteran in Okinawa, Japan from November 1963 to March 1965. To effectuate the above requests, the AOJ must send the below written summary of the circumstances of the Veteran's alleged herbicide exposure in Okinawa, Japan (as well as any additional information the Veteran provides in response to the current Board remand ), to (1) the Compensation Service at the Agent Orange Mailbox and to (2) the JSRRC (if warranted). The summary is as follows: "The Veteran has alleged exposure to herbicides at the U.S. Air Force Base in Okinawa, Japan from November 1963 to March 1965. Specifically, in Okinawa, Japan at the U.S. Air Force Base, the Veteran alleges that he was in close proximity to the flightline which was sprayed with herbicides to control the vegetation. He also says that Agent Orange was stored at the base and flown as cargo in airplanes in Japan at that time. In this way, the Veteran reported that he was exposed to Agent Orange or other herbicide during active duty." See January 2013 Report of General Information (VA Form 21-0820); June 2013 NOD; and November 2014 VA Form 9. 2. The AOJ should request from the Social Security Administration (SSA) all records associated with the Veteran's $300 per month of Social Security Disability Income (SSDI). See June 2016 and September 2016 VA care management notes. In particular, request copies of any SSA disability determination and all medical records considered. (These SSA records may be relevant to the service connection issues on appeal). If no SSA records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 3. The AOJ should contact the Veteran and ask that he complete and return the necessary authorization (VA Form 21-4142) for VA to obtain any private treatment records that he adequately identifies. These private treatment records may be relevant to the issues of service connection for his heart disorder and his sleep disorder. (In particular, at the February 2015 VA diabetes mellitus examination, the Veteran reported that he was treated with stents for his heart 3-4 years prior. In addition, according to an April 2012 Crosspoint Medical Clinic record, the Veteran reported undergoing a sleep apnea study in November 2010. It appears private providers were involved in both instances). Ask that the Veteran provide the full names of the provider(s) who treated him, the specific dates of treatment, and any address or telephone information. If he provides a completed release form authorizing VA to obtain these private treatment records, then attempt to obtain them and associate these records with the claim file. The Veteran is also asked to provide the private treatment records himself if he has them in his possession. 4. The AOJ should obtain VA treatment records from the Valley Coastal Bend VA healthcare system in Texas dated from November 2017 to the present, and associate them with the claims file. All attempts to secure these records, and any response received, must be documented in the claims file. If no VA treatment records are available, a response to that effect is required and should be documented in the file. 5. After completion of steps #1-4, the AOJ should schedule the Veteran for a VA audiology examination by an appropriate clinician to determine whether the Veteran has current bilateral hearing loss disability to meet the threshold minimum requirements of 38 C.F.R. § 3.385, whether the Veteran has current tinnitus, and the etiology of both. The examination must include audiometric testing and speech recognition testing using the Maryland CNC Test. Access to the electronic claims file must be made available to the examiner for review. The Veteran must be interviewed. An explanation for all opinions expressed must be provided. The VA examiner must address the following inquiries: a) The examiner should indicate whether the Veteran has current hearing loss disability in either ear for VA purposes by the standards of 38 C.F.R. § 3.385. b) If the Veteran has current hearing loss disability in either ear, the examiner should then render an opinion as to whether it is at least as likely as not (i.e., 50 percent or more probable) that the Veteran's current hearing loss is causally or etiologically related to his periods of ACDUTRA service in Army Reserve from 1957 to 1961 and to his Air Force service from 1961 to 1965, including any noise exposure therein. c) The examiner should then render an opinion as to whether it is at least as likely as not (i.e., 50 percent or more probable) that the Veteran's current tinnitus is causally or etiologically related to his periods of ACDUTRA service in Army Reserve from 1957 to 1961 and to his Air Force service from 1961 to 1965, including any noise exposure therein. The VA examiner should also address whether the Veteran's current tinnitus may be related to the Veteran's hearing loss. d) In rendering the above opinions, the VA examiner is advised of the following: (i) The Veteran contends that he had hazardous noise exposure during his service in the Army Reserve from 1957 to 1961 from small arms fire and rifle training and Howitzer artillery exposure, due to his military occupational specialty (MOS) as a cannoneer / gunner. He says that during the blasts from the Howitzer artillery, he experienced tinnitus. (ii) Army Reserve treatment and personnel records dated from 1957 to 1961 appear to have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri. However, assume the Veteran is credible in describing noise exposure two weeks per year during ACDUTRA training with the 807th Field Artillery Battalion in Temple, Texas. He also had artillery training at Fort Sill, Oklahoma and at Fort Polk, Louisiana during this timeframe from 1957 to 1961. A March 2012 buddy statement from a fellow soldier confirmed that he and the Veteran were exposed to 105mm and 155mm Howitzers while stationed at Fort Sill, Oklahoma from 1957 to 1961 during ACDUTRA training. His buddy reported the Howitzers did a lot of shaking and the cockpit was very small. These were large guns and the recoil was tremendous and created a very loud noise which he believed caused problems with the Veteran's ears. (iii) During active duty in the Air Force from 1961 to 1965, an April 1961 STR enlistment examination showed normal hearing per a whispered voice test. A January 1964 STR revealed otitis media in the left ear. The February 1965 STR separation audiogram does not establish bilateral hearing loss disability to meet the threshold minimum requirements of 38 C.F.R. § 3.385 - even when converting to ISO numbers. Finally, the Department of Defense's Duty MOS Noise Exposure Listing indicates that an MOS as a clerk typist in the Air Force from 1961 to 1965 involved a "low" probability of noise exposure during his Air Force service. (iv) Post-service, an August 1965 VA examination specifically stated that no hearing loss was noted at that time. An August 1965 VA clinical record revealed complaints for various other medical disorders, but not hearing loss or tinnitus. According to a May 2012 VA physician note, the Veteran reported ringing in both ears. The Veteran added that his hearing problems have worsened lately, but his hearing problems started during military service. Similarly, an October 2012 VA audiology consult revealed current tinnitus and current bilateral sensorineural hearing loss. No previous audiograms were available. There was a reported history of noise exposure in the Army Reserve (as a gunner) with no hearing protection except when on the firing range. (v) Post-service, however, it does not appear from the record that the Veteran underwent any audiology testing to determine whether he has bilateral hearing loss disability to meet the threshold minimum requirements of 38 C.F.R. § 3.385. Also, VA did not secure any opinion as to etiology. (vi) The VA examiner is advised that the absence of in-service evidence of a hearing disability per 38 C.F.R. § 3.385 during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. (vii) In addition, the VA examiner should consider the significance, if any, of any intercurrent, post-service noise exposure in his civilian occupations or recreational pursuits that the Veteran reports in his interview. 6. After completion of steps #1-4, the AOJ should schedule the Veteran for the appropriate VA examination to determine the etiology of the Veteran's claimed thoracolumbar spine disorder. Access to the electronic claims file must be made available to the examiner for review. The examination should include any diagnostic testing or evaluation deemed necessary, including X-rays. The Veteran must be interviewed. The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (A) Does the Veteran have a current diagnosis(s) for his thoracolumbar spine? (B) If the Veteran has a current diagnosis(s) for his thoracolumbar spine complaints, is it at least as likely as not (i.e., 50 percent or more probable) that a current thoracolumbar spine disorder is related to his periods of ACDUTRA service in Army Reserve from 1957 to 1961 and to his Air Force service from 1961 to 1965? (C) In answering the questions above, the VA examiner is advised of the following: * Army Reserve treatment and personnel records dated from 1957 to 1961 appear to have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri. However, assume the Veteran is credible in heavy lifting of artillery shells during his periods of ACDUTRA from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas. The Veteran says he experienced low back pain when lifting artillery shells during his periods of ACDUTRA from 1957 to 1961, but he was not treated for the low back pain at that time. * During active duty in the Air Force from 1961 to 1965, an April 1961 STR enlistment examination and a February 1965 STR separation examination both reveal a normal spine and normal neurological system. At the February 1965 STR separation examination, the Veteran denied all other pertinent surgical or medical history, aside from penile lesions, painful urination, hemorrhoids, hay fever, and eye conjunctivitis. * Post-service, within a year of separation from service, at an August 1965 VA examination - his musculoskeletal examination normal. There were no documented complaints related to the spine. In an August 1965 VA clinical record within one of service, the only present complaints were stomach pain and dizziness. The Veteran had a history of appendicitis and peptic ulcer and eye problems. But there were no other physical complaints within one year of service. * Post-service, an October 2003 VA treatment record first noted lumbago (low back pain). VA treatment records dated in 2003 and 2004 documented chronic low back secondary to degenerative joint disease and stenosis. A May 2004 Statement of Attending Physician (TVC-16) recorded a "long history of low back pain" that has progressively worsened. The Veteran was diagnosed with moderate lumbar spine stenosis. An April 2010 VA MRI of the lumbar spine demonstrated multilevel degenerative disc disease most prominent at L3 through S1 with moderate to severe canal and neuroforaminal stenosis at those levels. A May 2014 VA MRI of the lumbar spine revealed marked L2/3, L3/4 and L4/5 degenerative changes with marked central canal narrowing and marked bilateral neural foraminal narrowing. There was also marked L5/S1 bilateral neural foraminal narrowing. * Post-service, in a December 2012 VA physician note, the Veteran reported his low back pain began at age 17 in the Army Reserve when he operated heavy firearms. A February 2015 VA thoracolumbar spine examination diagnosed severe lumbar strain and intervertebral disc syndrome, with date of onset listed as 1972 (VA examiner likely meant 1962 during service). There was no rationale provided for in-service onset. * Post-service, VA pain medicine follow up notes dated in February 2014, May 2014, and June 2015 document the Veteran's reported history of his back pain starting while on active duty in the Army Reserves. The Veteran reported that he hurt his back while in the artillery (Army Reserve from 1957 to 1961) lifting heavy shells. He admitted he was never treated for this back pain while in the Army Reserve. He did report that post-service he was treated for his low back pain by the VA in California in 1965, within one year of service. But this is not supported by any evidence of record. Finally, at a February 2015 VA diabetes mellitus examination, the Veteran reported low back pain which has bothered him since he was in the Army Reserve in Fort Sill, Oklahoma "a long time ago." 7. After completion of steps #1-4, the AOJ should schedule the Veteran for the appropriate VA examination to determine the etiology of the Veteran's claimed cervical spine (neck) disorder. Access to the electronic claims file must be made available to the examiner for review. The examination should include any diagnostic testing or evaluation deemed necessary, including X-rays. The Veteran must be interviewed. The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (A) Does the Veteran have a current diagnosis(s) for his cervical spine (neck)? (B) If the Veteran has a current diagnosis(s) for his cervical spine (neck) complaints, is it at least as likely as not (i.e., 50 percent or more probable) that a current cervical spine (neck) disorder is related to his periods of ACDUTRA service in Army Reserve from 1957 to 1961 and to his Air Force service from 1961 to 1965? (C) In answering the questions above, the VA examiner is advised of the following: * Army Reserve treatment and personnel records dated from 1957 to 1961 appear to have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri. However, assume the Veteran is credible in describing the heavy lifting of artillery shells during his periods of ACDUTRA from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas. * During active duty in the Air Force from 1961 to 1965, an April 1961 STR enlistment examination and a February 1965 STR separation examination both reveal a normal spine and normal neurological system. At the February 1965 STR separation examination, the Veteran denied all other pertinent surgical or medical history, aside from penile lesions, painful urination, hemorrhoids, hay fever, and eye conjunctivitis. * Post-service, within a year of separation from service, at an August 1965 VA examination, his musculoskeletal examination was normal. There were no documented complaints related to the cervical spine (neck). In an August 1965 VA clinical record within one of service, the only present complaints were stomach pain and dizziness. The Veteran had a history of appendicitis and peptic ulcer and eye problems. But there were no other physical complaints within one year of service. * Post-service, a November 2012 VA nursing outpatient note documented the first report of "upper back pain." In an April 2014 Application for Pension (VA Form 21-527EZ), the Veteran stated he was disabled from a neck injury disability that began post-service in January 2003. In a January 2016 VA nursing note, the Veteran had ER treatment at Valley Baptist Harlingen after a fall the day before. The Veteran reported neck pain and mild headache after slipping and hitting the right side of his head on a wall as he fell. The physical examination was normal. A November 2016 VA primary care outpatient progress note indicated the Veteran has chronic neck pain. He is going to acupuncture. His trigger points are trapezius muscles. He has cervical adenopathy. He improved after acupuncture treatment. Finally, a February 2017 VA primary care outpatient progress note revealed "mild anterior cervical LAD." 8. After completion of steps #1-4, the AOJ should schedule the Veteran for the appropriate VA examination to determine the etiology of the Veteran's claimed bilateral knee disorder. Access to the electronic claims file must be made available to the examiner for review. The examination should include any diagnostic testing or evaluation deemed necessary, including X-rays. The Veteran must be interviewed. The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (A) Does the Veteran have a current diagnosis(s) for his bilateral knees? (B) If the Veteran has a current diagnosis(s) for his bilateral knees complaints, is it at least as likely as not (i.e., 50 percent or more probable) that a current bilateral knees disorder is related to his periods of ACDUTRA service in Army Reserve from 1957 to 1961 and to his Air Force service from 1961 to 1965? (C) In answering the questions above, the VA examiner is advised of the following: * Army Reserve treatment and personnel records dated from 1957 to 1961 appear to have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri. However, assume the Veteran is credible in describing the heavy lifting of artillery shells during his periods of ACDUTRA from 1957 to 1961 with the 807th Field Artillery Battalion in Temple, Texas. * During active duty in the Air Force from 1961 to 1965, an April 1961 STR enlistment examination and a February 1965 STR separation examination both reveal normal lower extremities. At the February 1965 STR separation examination, the Veteran denied all other pertinent surgical or medical history, aside from penile lesions, painful urination, hemorrhoids, hay fever, and eye conjunctivitis. * Post-service, within a year of separation from service, at an August 1965 VA examination, his musculoskeletal examination was normal. There were no documented complaints related to the bilateral knees. In an August 1965 VA clinical record within one of service, the only present complaints were stomach pain and dizziness. The Veteran had a history of appendicitis and peptic ulcer and eye problems. But there were no other physical complaints within one year of service. * Post-service, in a January 2010 Application for Compensation (VA Form 21-526), the Veteran reported that his left leg and right knee pain began in March 1964 during his active duty in the Air Force. Private treatment records dated in 2011 document difficulty walking. In an April 2012 letter to a congressman and an April 2012 Veteran statement, the Veteran reported his left knee was weak due to too much activity in Okinawa, Japan in 1963 and 1964 in the Air Force. He added he did not report knee pain during service, because he did not want to be disciplined. He simply lived with knee pain. He also reported an in-service incident when after a long walk, he experienced a swollen knot on the back of his left leg. Again, he did not report this injury during service. * Post-service, a December 2012 VA addendum note assessed degenerative arthritis for both knees. VA treatment records dated from 2012 to 2017 reveal complaints and treatment for bilateral knee pain, knee braces, physical therapy, leg weakness, the occasional use of a walker, gait disturbance, and obesity. A January 2016 VA nursing note documented right knee pain with use of a cane. * Post-service, in a May 2012 VA physician note, the Veteran reported recent exacerbation of pain to both knees and muscle strain of the left thigh area. He provided a reported history of straining his leg muscles in service after a 10 mile walk. He got "knots" in his thighs and has never been the same since. In a December 2012 VA physician note, the Veteran reported bilateral knee pain the past couple of months. He added that his bilateral knee pain began during his periods of ACDUTRA from 1957 to 1961 when he operated heavy firearms in the Army Reserve. 9. After completion of steps #1-4, the AOJ should schedule the Veteran for the appropriate VA examination to determine the etiology of the Veteran's claimed carpal tunnel syndrome of the hands. Access to the electronic claims file must be made available to the examiner for review. The examination should include any diagnostic testing or evaluation deemed necessary, including X-rays. The Veteran must be interviewed. The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (A) Is it at least as likely as not (i.e., 50 percent or more probable) that current carpal tunnel syndrome of the hands is related to the Veteran's Air Force service from 1961 to 1965? In answering this question, the VA examiner should address whether the Veteran's military occupational specialty (MOS) as a clerk typist in the Air Force from 1961 to 1965 caused the development of carpal tunnel syndrome post-service. (B) In answering the question above, the VA examiner is advised of the following: * During active duty in the Air Force from 1961 to 1965, an April 1961 STR enlistment examination and a February 1965 STR separation examination both reveal normal upper extremities and a normal neurological system. At the February 1965 STR separation examination, the Veteran denied all other pertinent surgical or medical history, aside from penile lesions, painful urination, hemorrhoids, hay fever, and eye conjunctivitis. * During active duty in the Air Force from 1961 to 1965, the Veteran's SPRs confirm that his MOS was a clerk typist. * Post-service, within a year of separation from service, at an August 1965 VA examination - his musculoskeletal examination normal. There were no documented complaints related to the hands. In an August 1965 VA clinical record within one of service, the only present complaints were stomach pain and dizziness. The Veteran had a history of appendicitis and peptic ulcer and eye problems. But there were no other physical complaints within one year of service. * Post-service, a September 2011 VA treatment record first noted carpal tunnel syndrome of the hands. An April 2012 Crosspoint Medical Clinic private record noted the first treatment for carpal tunnel syndrome was in September 2011. VA treatment records dated from 2011 to 2017 record a carpal tunnel syndrome diagnosis. * Post-service, in an April 2012 letter to a congressman and an April 2012 Veteran statement, the Veteran reported continuity of symptoms for hand problems that worsened over time due to his MOS duties as a typist in the Air Force from 1961 to 1965. In an April 2012 spouse statement, the Veteran's spouse advised that while serving in the Air Force from 1961 to 1965, the Veteran worked administratively as a typist and evidently damaged some of the muscular tissue in his fingers, hands, and wrists, causing the development of carpal tunnel syndrome. She added that in addition to being the Veteran's spouse, she and the Veteran have been close business associates and worked closely and side-by-side since they met in 1980. 10. After completion of steps #1-9, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 11. After completion of steps #1-10, the AOJ should consider all of the evidence of record and readjudicate all service connection issues on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) The Veteran 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). These 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. §§ 5109B, 7112 (2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs