Citation Nr: 20006380 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 11-00 816 DATE: January 28, 2020 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to exposure to herbicide agents, and/or secondary to diabetes, is remanded. Entitlement to service connection for coronary artery disease (CAD), to include as due to exposure to herbicide agents, and/or secondary to diabetes, is remanded. Entitlement to service connection for a thoracolumbar spine condition (hereinafter back condition) is remanded. Entitlement to service connection for right knee degenerative joint disease (hereinafter right knee condition) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1964 to January 1988. As an initial matter, the Board observes that the Veteran died in October 2019, during the pendency of this appeal. The Appellant is his surviving spouse. In October 2019, the Veteran’s surviving spouse moved to substitute as a claimant in the Veteran’s multiple claims that had been pending when he died. The AOJ granted the motion in November 2019 and recognized the Appellant as a substitute claimant. Prior to his death, in March 2018, the Board remanded the aforementioned claims for further development, including to request from the Veteran information regarding his service and location while in Vietnam; to contact the appropriate institutions to specifically request documents relating to the Veteran’s travel to verify his alleged herbicide exposure; and to obtain medical opinions as to the Veteran’s heart condition, back condition, and right knee condition. Although the Board sincerely regrets the additional delay, a remand is necessary to afford the Appellant due process of law and to ensure that there is a complete record upon which to decide the Veteran’s appeal, so that she is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. Specifically, the Board finds the RO did not document attempts requesting information as to the Veteran’s travel and location while he was in the waters of Vietnam, and the December 2018 VA examiner did not substantially comply with the Board’s remand instructions with respect to the back and right knee condition claims, so the Board must again remand the matter. Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, as discussed in further detail below, the Veteran’s blue water service in Vietnam must be addressed. 1. Diabetes, CAD, and peripheral neuropathy The Appellant contends that the Veteran had diabetes mellitus, CAD, and peripheral neuropathy which were caused by his exposure to herbicide agents during his military service; or, in the alternative, the claims for CAD and peripheral neuropathy were secondary to his diabetes. Under 38 U.S.C. § 1116, a veteran who “served in the Republic of Vietnam” during the period beginning on January 9, 1962 and ending on May 7, 1975 shall be considered exposed to an herbicide agent, and that exposure in turn will be presumed to be the cause of certain enumerated diseases. See 38 C.F.R. § 3.309(e) (listing type two diabetes, ischemic heart disease including CAD, and peripheral neuropathy among diseases presumptively associated with exposure to certain herbicide agents). The medical evidence shows in 2001, the Veteran was diagnosed with diabetes; in 1992, he was diagnosed with ventricular bigeminy, an October 2001 medical record noted he had very high risk for heart attack with well-documented CAD and impaired glucose tolerance/early diabetes, and in 2001 had an angioplasty and 2 stents put in. Medical records until his death showed the Veteran continued treatment for his diabetes and CAD. While the Veteran’s case was in remand status, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision that expands the definition of a veteran with service in the Republic of Vietnam. In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the Federal Circuit held that veterans who “served in the 12 nautical mile territorial sea of the Republic of Vietnam” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. The Board finds that the holding in Procopio potentially impacts the outcome of the Veteran’s claims. Because he served on Naval ships off the coast of Vietnam during the Vietnam era, he may be eligible for presumptive service connection based on exposure to herbicide agents under Procopio’s expanded definition of “a veteran with service in the Republic of Vietnam.” In August 2008, the RO confirmed the USS Hornet was in the official waters of the Republic of Vietnam for intermittent periods between May 1967 and December 1968; USS Hornet Command history also revealed the ship operated in Vietnam waters throughout spring 1967 and much of summer 1967; and in February 2016, DPRIS results revealed the USS Hornet was in the Gulf of Tonkin in January 1969. The Veteran’s military personnel records also indicated he was entitled to hostile fire pay in 1968 and 1969; he was awarded a Vietnam service medal “for service in the Vietnam area of operations;” and that his military duties included “augmented established shore patrol.” However, it is unclear from the record whether the Veteran is presumed to have had herbicide exposure. In prior decisions, the RO could not verify he had “boots on the ground” service in Vietnam. However, under Procopio, VA does not need to rely on whether the Veteran had “boots on the ground” in Vietnam, but rather must verify the locations of the USS Norfolk, USS Hornet, USS Hancock, USS Gridley, USS Camden, and USS Enterprise in relation to their proximity to Vietnam during the Veteran’s active service onboard those ships. Accordingly, a remand is warranted for further factual development. 2. Back and right knee The Appellant contends the Veteran’s back and right knee conditions were due to his service; specifically, that he injured his right knee and back while in service and the back condition and right knee condition worsened from the Veteran’s duties which included exertion and physical labor for over two decades. The RO, per the 2018 remand directives, requested medical opinions in December 2018 to determine the etiology of the Veteran’s back condition and knee condition, but the Board finds the requested VA opinions are inadequate. The December 2018 examiner’s opinion for both the Veteran’s back condition and his right knee condition repeated facts from the remand directives but did not give an actual opinion, but rather provided conclusory opinions that the conditions were less likely than not due to the Veteran’s military service: it was “questionable” whether he had arthritic changes in service; did not consider the Veteran’s contentions (opined symptoms were subjective); and that there was no chronicity of care after the Veteran got out of the military. The Board finds these opinions conclusory and inadequate, as the examiner failed to provide an adequate opinion regarding the etiology of the Veteran’s back condition and right knee condition as she did not provide a reasoned rationale for the negative nexus or consider the Veteran’s statements of chronicity. Further, the fact that the Veteran’s conditions were normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to the service injury. VA medical opinions must be based on accurate factual premises and be supported by clearly and fully articulated rationale. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Therefore, remand is required for new VA opinions to address the deficiencies indicated above for the back and right knee conditions. The matters are REMANDED for the following action: 1. Develop the claim that the Veteran was exposed to herbicides during his military service. Specifically, contact the appropriate records repository including, but not limited to, the Joint Services Records Research Center (JSRRC), the National Personnel Records Center (NPRC), the Records Management Center (RMC), and any other appropriate location to obtain deck logs or other information as to the locations of the USS Norfolk from 1966 to 1967; the USS Hornet from 1968 to 1970; the USS Hancock from 1970 to 1971; the USS Gridley in 1974; the USS Camden from 1975 to 1978; and the USS Enterprise in 1975. 2. Then, issue a formal finding regarding the likelihood that the Veteran served within the 12 nautical mile territorial sea of the Republic of Vietnam during his service onboard the aforementioned ships. Consideration should be given to the Veteran’s military personnel records showing in April 1969, the Veteran was entitled to hostile fire pay for Southeast Asia combat operations from November to December 1968 and January to April 1969; he received a Vietnam service medal “for service in the Vietnam area of operations;” and his records indicated his military service included “augmented established shore patrol.” All attempts, responses, and determinations should be documented in the claims file. 3. Return the file, along with a copy of this remand, to the December 2018 examiner, or another examiner if she is not available, and request an opinion as to whether: - It is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbosacral spine degenerative changes either began during or was otherwise caused by his military service? The examiner is asked to consider: the March 1982 service treatment record (noting he “threw his back out” recently and complaints of pain in mid-back region; noting muscles tense and knotted); to specifically address and opine as to the Veteran’s verified duties involving exertion and physical labor during many years of service; and to consider the Veteran’s medical treatment records from 1999 until his death of back pain/treatment. - It is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee degenerative joint disease either began during or was otherwise caused by his military service. The examiner is asked to consider the February 1982 STR (noting Veteran’s report that he slipped on fuel tank ten days ago, hit his knee, and had increasing discomfort; finding tenderness to palpation on examination; diagnosing right knee soft tissue injury); to specifically address and opine as to the Veteran’s verified duties involving exertion and physical labor during many years of service; address that the Veteran filed for bilateral knee pain in October 1988 immediately after separation from service; and consider the Veteran’s medical treatment records from 1995 until his death as to his right knee pain/treatment. The examiner is advised that simply stating the Veteran was normal at separation is not an adequate rationale as service connection can be granted for a condition diagnosed after service if it is related to an in-service disease or injury. Rationale must be provided for opinions proffered. If the examiner determines a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. Simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.