Citation Nr: 20004385 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 17-22 976 DATE: January 21, 2020 REMANDED 1. Entitlement to service connection for type 2 diabetes mellitus, claimed as due to exposure to herbicide agents is remanded. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, is remanded. 3. Entitlement to service connection for a bilateral eye disability (to include cataracts) to include as secondary to diabetes mellitus, is remanded. 4. Entitlement to service connection for skeletal arthritis, to include as secondary to diabetes mellitus, is remanded. 5. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as secondary to diabetes mellitus, is remanded. 6. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus, is remanded. 7. Entitlement to service connection for kidney disease to include as secondary to diabetes mellitus, is remanded. 8. Entitlement to service connection for prostate cancer, claimed as due to exposure to herbicide agents, is remanded. 9. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to prostate cancer or diabetes, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1962 to August 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2013 rating decision. In July 2019 a videoconference hearing was held before the undersigned; a transcript is in the record. In November 2019 these issues were stayed pursuant to a Secretary of Veterans Affairs July 1, 2019, directive to the Board to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019, until January 1, 2020. [A November 2019 Board decision remanded for development claims of entitlement to service connection for a respiratory disorder, to include asthma, obstructive sleep apnea, and a stomach disability. Those issues are still undergoing the remand development and will be the subject of a separate decision]. 1., 2., 3., 4., 5., 6., 7., 8., 9. Entitlement to service connection for diabetes, hypertension, a bilateral eye disability, skeletal arthritis, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, kidney disease, prostate cancer, and ED. The Veteran’s primary theory of entitlement regarding the claims seeking service connection for diabetes mellitus type 2 and prostate cancer is one of presumptive service connection under 38 U.S.C. § 1116 (based on exposure to herbicides). He contends that he was exposed to Agent Orange while servicing aboard the U.S.S. Oriskany (off Vietnam). In October and November 2011 statements, he related that while he was aboard the U.S.S. Oriskany from 1962 to 1966 the ship went on three Western Pacific cruises and traversed Cam Rahn Bay. In a November 2012 statement he related that he went ashore in Vietnam in June 1963, January 1964, and September 1965 while his ship was in Cam Rahn Bay. In June 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act). The BWN Act adds section 1116A to title 38 of the United States Code, effective January 1, 2010. The new section 1116A extends the existing Agent Orange Act of 1991 presumption codified at section 1116 to veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See VAOPGCPREC 3-2019 at 2, 12; BWN Act, Pub. L. No. 116-23, Sec. 2 (a). The BWN Act “defines “offshore” as a geographical area “not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting” eleven points of latitude and longitude listed in an included table. Id. Further development of the record is necessary to comply with VA’s duty to assist the Veteran in the development of facts and evidence to properly adjudicate the claims. Exhaustive development to determine whether he served in the Republic of Vietnam considering the BWN Act is needed. The Board notes that the record currently contains a May 2013 VA Memorandum which states that the information provided by the Veteran was insufficient to allow for meaningful research by the Joint Services Records Research Center (JSRRC). A later (March 2017) VA Memorandum states that VA still lacked the information the JSRRC required to verify the Veteran’s claim of herbicide exposure and that service on the U.S.S. Oriskany was not the type of service that allows VA to concede Agent Orange/herbicide exposure. Development to determine whether the Veteran served in the Republic of Vietnam considering the BWN Act and the Federal Circuit’s holding in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) is now necessary. The Veteran’s primary theory of entitlement for hypertension, a bilateral eye disability, skeletal arthritis, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, and kidney disease is one of secondary service connection. He asserts that he has such disabilities secondary to his diabetes. The claims have been denied on the basis that the Veteran has not established service connection for type 2 diabetes mellitus. VA treatment records suggest (by his reports, notations in VA medical history, and prescriptions for the disabilities) that the Veteran has a bilateral eye disability, skeletal arthritis, kidney disease, and bilateral upper and bilateral lower extremity peripheral neuropathy. If service connection for diabetes is granted, examinations will be required to confirm diagnoses for these disabilities and to obtain medical advisory opinions regarding secondary service connection. The Veteran’s primary theory of entitlement to service connection for ED is also one of secondary service connection. He asserts that such disability is secondary to his prostate cancer (and/or diabetes). The claim has been denied on the basis that service connection for prostate cancer has not been established. If service connection for prostate cancer (or diabetes) is granted, an advisory medical opinion regarding the likely etiology of the ED will be necessary. The record reflects that the Veteran continues to receive VA treatment for the service connection disabilities on appeal. Records of any such treatment may contain pertinent information, and outstanding records of the treatment must be obtained and considered. Notably, VA records are constructively of record. The matters are REMANDED for the following: 1. Secure for association with the record all outstanding records of VA treatment the Veteran has received for diabetes, hypertension, a bilateral eye disability, skeletal arthritis, kidney disease, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, prostate cancer, and ED. If any such records are unavailable, the reason for their unavailability must be explained for the record, and the Veteran should be so advised. 2. Following the development sought in #1, undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam considering the Blue Water Navy Vietnam Veterans Act of 2019. Such action may include obtaining and reviewing the deck logs of the U.S.S. Oriskany in order to ascertain its whereabouts while the Veteran was aboard, conducting an inquiry with the JSRRC, and any other development deemed appropriate. The development on remand should address whether the U.S.S. Oriskany served within the geographic area identified by the BWN Act while the Veteran was aboard. Contact all relevant government records repositories and document for the file which repositories were contacted. If any requested records or relevant information are not available, or the search for any such records or information otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records and information must continue until it is determined that they do not exist or that further attempts to obtain the records or information would be futile. The non-existence or unavailability of such records or information must be verified, and this should be documented for the record. The Agency of Original Jurisdiction should make a finding for the record whether the U.S.S. Oriskany was in the geographic area identified in the BWN Act while the Veteran was aboard. The Veteran and his representative must be provided notice of that determination. 2. Thereafter, if (and only if) service connection for diabetes is granted, arrange for the Veteran to be examined by an appropriate physician to confirm he has hypertension, a bilateral eye disability, skeletal arthritis, kidney disease, and bilateral upper extremity and bilateral lower extremity peripheral neuropathy and determine their etiologies. Following examination of the Veteran and review of his record, the examiner should respond to the following: (a) Identify the likely etiology for the Veteran’s hypertension. Specifically, is it at least as likely as not (a 50% or better probability) that it was either caused or aggravated (aggravation must be specifically addressed) by his service-connected diabetes? If hypertension is found to not have been caused, but to have been aggravated, by the service-connected diabetes, to the extent possible, identify the degree of hypertension impairment that is due to such aggravation. (b) Identify each right and left eye disability found and identify the likely etiology of each eye disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that an eye disability was either caused or aggravated (aggravation must be specifically addressed) by the Veteran’s service-connected diabetes? If an eye disability is found to not have been caused, but to have been aggravated, by service-connected diabetes, to the extent possible, identify the degree of eye impairment that is due to such aggravation. (c) Confirm that the Veteran has skeletal arthritis and identity its etiology. Specifically, is it at least as likely as not (a 50% or better probability) that skeletal arthritis was either caused or aggravated (aggravation must be specifically addressed) by the Veteran’s service-connected diabetes? If skeletal arthritis is found to not have been caused, but to have been aggravated, by the service-connected diabetes, to the extent possible, identify the degree of skeletal arthritis impairment that is due to such aggravation. (d) Confirm that the Veteran has kidney disease and identity its etiology. Specifically, is it at least as likely as not (a 50% or better probability) that any kidney disease found was either caused or aggravated (aggravation must be specifically addressed) by his service-connected diabetes? If kidney disease is found to not have been caused, but to have been aggravated, by service-connected diabetes, to the extent possible, identify the degree of kidney disease impairment that is due to such aggravation. (e) Confirm that the Veteran has bilateral upper extremity and bilateral lower extremity peripheral neuropathy and identity the etiology for any such peripheral neuropathy found. Specifically, is it at least as likely as not (a 50% or better probability) that it was caused or aggravated (aggravation must be specifically addressed) by his service-connected diabetes? If peripheral neuropathy of an upper or lower extremity is found to not have been caused, but to have been aggravated, by service-connected diabetes, to the extent possible, identify the degree of bilateral upper and lower extremity peripheral neuropathy impairment that is due to such aggravation. 3. Also, if (and only if) service connection for prostate cancer and/or diabetes is established, arrange for the Veteran’s record to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the etiology of his ED and specifically whether it was caused or aggravated (the opinion must address aggravation) by the service-connected prostate cancer and/or diabetes. [If further examination of the Veteran is deemed necessary for the opinion sought, such should be arranged]. The consulting physician must explain the rationale for all opinions. All opinions must include rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, Associate 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.