Citation Nr: 20004153 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 15-44 266 DATE: January 16, 2020 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as due to in-service herbicide exposure, is remanded. Entitlement to service connection for a heart disability, to include as secondary to diabetes mellitus, type II, or in the alternative, as due to in-service herbicide exposure, is remanded. Entitlement to service connection for skin cancer, to include as due to in-service herbicide exposure, is remanded. REASONS FOR REMAND The Veteran had active service from May 1966 to February 1970 and from December 1970 to March 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Additionally, in October 2019 and December 2019 correspondence, the Veteran was notified, as pertinent to his appeal, that on July 1, 2019, the Secretary of Veterans Affairs directed the Board to stay adjudication of all cases that may be affected by the Blue Water Navy Vietnam Veterans Act of 2019, until the effective date of the Act (January 1, 2020). Thus, as the Act is now effective, the stay has been lifted and this case is ripe for adjudication by the Board at this juncture. In April 2019, the Veteran and his spouse presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Additional evidence was submitted by the Veteran in April 2019, subsequent to the most recent August 2017 supplemental statement of the case issued for the appeal herein. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the appellant explicitly requests AOJ consideration. Here, the Veteran’s substantive appeal for this appeal was filed after February 2, 2013, and the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record reflects the entirety of the additional evidence was submitted by the Veteran, thus a remand for AOJ consideration is not warranted. 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to in-service herbicide exposure, is remanded. The Veteran primarily contends that service connection for diabetes mellitus, type II, is warranted due to in-service herbicide exposure. In a January 2015 notice of disagreement, the Veteran reported, in part, he was assigned to the USS Inflict and USS Dynamic and both of these ships docked at Da Nang in the Republic of Vietnam, and brought supplies off the ships on the temporary runway. Additionally, in April 2019 testimony, the Veteran reported he went ashore in Da Nang but that he also went ashore at other locations in the Republic of Vietnam. In this regard, consistent with the Veteran’s recollection, his service records reflect he served aboard the USS Inflict and the USS Dynamic as well as the USS Hooper, USS Dixon and USS Chanticleer. Further, the Veteran’s service records reflect he was aboard the USS Hooper from September 1966 to November 1967, and an article from the Dictionary of American Naval Fighting Ships, reported in part, from February 21, 1966 to March 18, 1966, the USS Hooper patrolled the Formosa Strait but during the next six months, the USS Hooper operated off Vietnam, contributing to the safety of the legitimate government of South Vietnam. Thus, the location of the USS Hooper off the coast Vietnam for six months from March 18, 1966 could conceivably have been within the 12 nautical mile territorial sea of the Republic of Vietnam and could overlap with the Veteran’s service aboard the ship beginning in September 1966. Thus, remand is warranted for further development and determination by the AOJ in the first instance as to whether the Veteran had service within the 12 nautical mile territorial sea of the Republic of Vietnam, to include based on his service aboard the USS Hooper. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Additionally, in April 2019 testimony, the Veteran’s spouse referenced outstanding private medical records from a family doctor in Granbury who first diagnosed the Veteran with diabetes; however, the Veteran subsequently indicated he did not wish to request a 60-day extension of time in order to submit these records. Nonetheless, in light of remand for other matters, on remand, the Veteran should be invited to submit such records or to allow VA to obtain authorization and request these records on his behalf. 2. Entitlement to service connection for a heart disability, to include as due to in-service herbicide exposure, or in the alternative as secondary to diabetes mellitus, type II, is remanded. In his initial October 2014 application for benefits, the Veteran claimed service connection for a heart disability as secondary to diabetes mellitus, type II, and in April 2019 testimony, he linked it to in-service herbicide exposure. Thus, this claim is dependent on the development indicated below for in-service herbicide exposure and is also inextricably intertwined with the claim for service connection for diabetes mellitus, type II. Therefore, Board adjudication of this claim must be deferred pending completion of the development requested below as to in-service herbicide exposure as well as the outcome of the diabetes mellitus, type II, claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Further, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a heart disability because no VA examiner has opined whether the Veteran’s current heart disability, variously diagnosed, is at least as likely as not related to an in-service injury, event, or disease. In this regard, a March 1967 service treatment record noted, in part, a history of chest pain (substernal) for five days, a past history which included a heart murmur during school, and that the Veteran stated that pain came on when he had been involved in strenuous work; however, the service treatment record also noted that pain was not suggestive of a cardiac problem or other treatable illness. However, an August 1969 service treatment record documented that examination of the Veteran’s heart revealed a grade I systolic murmur heard best at the left 2nd-3rd intercostal space. Thus, an examination is warranted. 3. Entitlement to service connection for skin cancer, to include as due to in-service herbicide exposure, is remanded. In his initial October 2014 application for benefits, the Veteran claimed entitlement to service connection for skin cancer as secondary to diabetes mellitus, type II. However, in April 2019 testimony, he, in conjunction with his representative, requested that this basis for the claim be removed and that the claim be instead addressed on the basis of in-service herbicide exposure. Thus, this claim is dependent on the development indicated below as to in-service herbicide exposure and Board adjudication of the claim must be deferred pending completion of the below requested development. Additionally, in April 2019 testimony, the Veteran’s spouse referenced recent appointments as well as an upcoming appointment with the Veteran’s skin cancer physician, Dr. Barland, which have not been obtained. Thus, in light of remand for other matters, on remand, the Veteran should be invited to submit such records or to allow VA to obtain authorization and request these records on his behalf. The matters are REMANDED for the following actions: 1. Arrange for exhaustive development regarding the Veteran’s asserted in-service exposure to herbicide agents, including appropriate development to determine whether the USS Hooper was in the territorial seas within 12 nautical miles of Vietnam while the Veteran was aboard in light of Procopio. Such action may include obtaining and reviewing the deck logs of the USS Hooper in order to ascertain its whereabouts while the Veteran served aboard the ship, conducting a further inquiry with the Research Center (JSRRC), and any other development deemed appropriate. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant medical providers for the disabilities at issue, to include a family doctor in Granbury and Dr. Barland. Make two requests for the authorized records from any identified medical provider, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any identified heart disability. The examiner must opine: (a.) Whether it is at least as likely as not that the Veteran has a heart disability that is related to an in-service injury, event, or disease, including any verified in-service herbicide exposure. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must reconcile his/her opinion with a March 1967 service treatment record which noted, in part, a history of chest pain (substernal) for five days, a past history which included a heart murmur during school, and that the Veteran stated that pain came on when he had been involved in strenuous work; that, the service treatment record also noted that pain was not suggestive of a cardiac problem or other treatable illness, and an August 1969 service treatment record which documented that examination of the Veteran’s heart revealed a grade I systolic murmur heard best at the left 2nd-3rd intercostal space (b.) If the answer to the foregoing is negative, whether it is at least as likely as not that the Veteran has a heart disability that is proximately due to diabetes mellitus. Rationale must be provided for the opinion proffered. (c.) If not, whether it is at least as likely as not that the Veteran has a heart disability that is aggravated beyond natural progression by diabetes mellitus. Rationale must be provided for the opinion proffered. 4. After completing the above, and any undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.