Citation Nr: 20005443 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 16-38 390 DATE: January 22, 2020 REMANDED Entitlement to service connection for hypertension, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for a lumbosacral spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to February 1973 and from October 1973 to February 1991. This matter comes to the Board of Veterans’ Appeals (Board) from a September 2014 rating decision which denied service connection for hypertension, diabetes mellitus, type II (DMII), left and right knee disabilities, and a back disability. In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. Subsequent to the June 2016 statement of the case (SOC), additional VA and private treatment records were added to the claims file. Although initial Agency of Original Jurisdiction (AOJ) review is automatically waived for evidence submitted by the Veteran or his representative when the VA Form 9 is received after February 2, 2013, as is the case here, the automatic waiver does not apply to VA-generated evidence not submitted by the Veteran. 38 U.S.C. § 7105(e). Further, waiver of a supplemental statement of the case is only applicable to evidence submitted by the Veteran or her representative. See 38 C.F.R. § 20.1304. However, as the Board is remanding his claim, the AOJ will have an opportunity to review the records in the first instance such that no prejudice results to the Veteran as a result of the Board’s consideration of this evidence for the limited purpose of issuing a comprehensive and thorough remand. The issues of entitlement to service connection for hypertension, diabetes mellitus, type II (DMII), a lumbar spine disability, and right and left knee disabilities are remanded. As it pertains to all issues, evidence indicates there may be outstanding private treatment records. Specifically, in November 2019, the Veteran submitted statements from his treating clincians, Dr. F.B. at Northridge Family Healthcare Center, and Dr. R.T. at OrthoGeorgia Orthopaedic Specialists, that the Veteran was being treated for his hypertension, DMII, lumbar spine, and bilateral knee disabilities. Treatment records from F.B. and R.T. are not associated with the claims file. A remand is required to allow VA to obtain authorization and request these records. Additionally, the Veteran reported private treatment from Dr. J.S. at Westbank Physician Associates from 1991 to 2012. The earliest records associated with the claims file from Dr. J.S. are dated in 1997. An additional attempt should be made to obtain records from 1991 to 1997.   Entitlement to service connection for hypertension and diabetes mellitus, type II (DMII) is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for hypertension and DMII at this time. The Veteran contends that service connection is warranted for hypertension and DMII. Specifically, he contends that he was diagnosed with hypertension in service and with DMII within one year of separation from service. Alternatively, he contends that he was stationed on the USS William H. Standley during the Vietnam War era, and this his hypertension and DMII are due to herbicide agent exposure. The Veteran’s military personnel records show that the Veteran was assigned to the USS William H. Standley from June 1960 to February 1973, and that he is in receipt of the Vietnam Service Medal and the Vietnam Campaign Medal. The Veteran testified that the USS Standley entered the waters within three miles off the shore of Vietnam. A veteran who served on active duty in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 shall be presumed to have been exposed during that service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to herbicides during service. 38 C.F.R. § 3.307(a)(6)(iii). For the purposes of determining whether a veteran may be presumed to have been exposed to herbicide agents, service in the Republic of Vietnam includes service on the landmass, inland waterways, and in the territorial sea extending twelve nautical miles from the shores of Vietnam. Procopio v. Willkie, 913 F.3d 1371 (Fed. Cir. 2019). The assembled information does not indicate whether the USS Standley’s operations included presence within twelve nautical miles from the shores of Vietnam. Therefore, a remand is warranted for a search of service records to verify the USS Standley’s operations within twelve nautical miles from the shores of Vietnam. Upon remand, the Veteran should be afforded a VA examination as to the nature and etiology of his hypertension. If herbicide agent exposure is not verified, the Veteran should also be afforded a VA examination as to the nature and etiology of his DMII. Entitlement to service connection for a lumbar spine disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a lumbar spine disability because no VA examiner has opined whether it was incurred in or is otherwise related to service, to include the rigors of service. Entitlement to service connection for a right and left knee disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a right and left knee disabilitiy because no VA examiner has opined whether they were incurred in or are otherwise related to service, to include the rigors of service. The matters are REMANDED for the following actions: 1. Request from the United States Navy, the United States Department of Defense, or any other appropriate source, deck logs and other records that show whether the operations of the USS William H. Standley (DLG-32) from June 1969 to February 1973 included presence within twelve nautical miles of the shores of Vietnam. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. J.S. at Westbank Physician Associates from 1991 to 1997, Dr. F.B. at Northridge Family Healthcare Center, Dr. R.T. at OrthoGeorgia Orthopaedic Specialists, and any other private treatment received for his hypertension, DMII, lumbar, and bilateral knee disabilities. Make two requests for the authorized records from the identified providers, 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 hypertension. The examiner must opine whether the Veteran’s hypertension at least as likely as not (1) began during active service, to include related to an in-service injury, event, or disease, including herbicide agent exposure, if verified, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 4. If herbicide agent exposure is not verified, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diabetes mellitus, type II. The examiner must opine whether it at least as likely as not diabetes mellitus, type II (1) began during active service, to include related to an in-service injury, event, or disease, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disability. The examiner must opine whether the Veteran’s lumbar spine disability at least as likely as not (1) began during active service, to include related to an in-service injury, event, or disease, including the rigors of service such as climbing ladders, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right or left knee disability. The examiner must opine whether a right or left knee disability at least as likely as not (1) began during active service, to include related to an in-service injury, event, or disease, including the rigors of service such as climbing ladders or December 1973 and March 1974 complaints of pain and swelling in his knees, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service, including a February 2004 report of a swollen knee; June, July, and August 2005 complaints of right knee pain and swelling; and an August 2012 complaint of knee pain. 7. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page)   An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.