Citation Nr: 20007846 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-21 638 DATE: January 30, 2020 ORDER Entitlement to service connection for diabetes mellitus, type II (DMII) as a result of exposure to herbicides is granted. REMANDED Entitlement to service connection for peripheral neuropathy is remanded. Entitlement to service connection for hypertension (HTN) is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran is diagnosed with diabetes mellitus, type II. 2. The Veteran served aboard the USS Walke from September 1967 to October 1968. 3. Records show that, the USS Walke sailed within 12 miles of the Vietnam coast for purposes of providing naval gunfire support. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II as a result of exposure to herbicides have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the Navy from March 1967 to October 1968. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a March 2015 and January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that the Veteran’s claims for entitlement to service connection for posttraumatic stress disorder (PTSD) has been recharacterized to broadly reflect that the scope of the claim includes any acquired psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For Veterans exposed to tactical herbicides, service connection is presumed for conditions specified by regulation. 38 C.F.R. §§ 3.307(a), 3.309(e). Diabetes mellitus, type II is a listed condition, with a presumptive condition of one year following the last exposure to herbicides. Veterans who served in Vietnam, to include the waters offshore, between Janaury 1962 and May 1975 are presumed exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). The U.S. Court of Appeals for the Federal Circuit has held that Veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam were entitlement to presumptive service connection if they satisfied the other requirements of 38 U.S.C. § 1116. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The Blue Water Navy Vietnam Veterans Act of 2019 legislatively extended the presumption of exposure to herbicide agents to those Veterans who served within the 12 nautical miles of Vietnam. 38 U.S.C. § 1116A. Review of the record reveals that the Veteran testified that his ship sailed within the 12-mile limit. In March 2019, the Veteran testified that while he was stationed on the USS Walke he was in the coastal waters of the Vietnam. He stated that around December 11, 1967 his ship moved inshore for gun support in the combat zone. Later, on December 17, 1967 he indicated that his ship moved up the coast of the DMZ for troop support. As the ship’s armament at the time (5-inch guns) had only a 10-mile range, the ship must have been closer to shore than the 12-mile limit. Moreover, travel this close to the shore is consistent with known ship movements; the Navy has verified operation on inland waterways at various times in 1969. Exposure to herbicides is established by presumption under 38 C.F.R. § 3.307(a). DMII is a presumptive condition for herbicide exposed Veterans. As a diagnosis for DMII is established in current medical records, service connection on presumptive basis is warranted. REASONS FOR REMAND Peripheral Neuropathy/ HTN/ Cataracts The Veteran alleges service connection for peripheral neuropathy, HTN, and cataracts as secondary to now service-connected DM II. In October 2014, the Veteran submitted Disability Benefits Questionnaires (DBQ) revealing that he was diagnosed with peripheral neuropathy, HTN, and cataracts. The examiner did not provide a secondary service connection opinion. Remand is required for examination to assess the possibility of secondary service connection for peripheral neuropathy, HTN, and cataracts. Acquired Psychiatric Disorder In October 2015, the Veteran was afforded a VA PTSD examination. The Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria based on the current examination. However, the Veteran was diagnosed with an adjustment disorder with depressive mood. He reported that while stationed on USS Walke he was physically attacked by a Petty Officer. He also reported that he witnessed a sailor commit suicide by jumping off the back of the USS Kearsarge. The VA examiner did not provide an opinion as to whether the Veteran’s adjustment order and depressive mood was related to his military service. On June 2016 statement, the Veteran indicated that he had continuous treatment for his mental health problems which started one month of being discharged. He wrote that all of his treatment prior to 2011 was through private physicians. He indicated that he had treatment with Dr. Percy Smith (1968), Dr. Simon Levitt, and Dr. Gordan Lantz (1993). Updated private and VA treatment records should be requested on remand. Bilateral Hearing Loss In March 2019, the Veteran testified that his hearing was worse. He stated that it was hard for him to distinguish voices sometimes. He reported that in crowds he had difficulty understanding what people say. He stated that his condition had gradually got worse. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed, separate VA Form 21-4142’s, Authorization and Consent to Release Information to the Department of Veterans Affairs, for any private care providers (Dr. Percy Smith, Dr. Simon Levitt, and Dr. Gordan Lantz) who have treated him for his acquired psychiatric disorder. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Schedule the Veteran for a VA peripheral neuropathy examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether any diagnosed peripheral neuropathy, is at least as likely as not caused or aggravated by service or service-connected diabetes. A full and complete rationale is required for all opinions expressed. 3. Schedule the Veteran for a VA hypertension examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether any diagnosed hypertension is at least as likely as not caused or aggravated by service or service-connected diabetes. A full and complete rationale is required for all opinions expressed. 4. Schedule the Veteran for a VA eye examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether any diagnosed visual impairment, to include cataracts, is at least as likely as not caused or aggravated by service or service-connected diabetes. A full and complete rationale is required for all opinions expressed. 5. Schedule the Veteran for a VA mental disorders examination. The claims folder must be reviewed in conjunction with the examination. The examiner should identify all acquired psychiatric disabilities present during the appeal period, including but not necessarily limited to adjustment disorder and depression. For each acquired psychiatric disability identified, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) related to service. 6. Schedule the Veteran a VA examination to determine the current severity of his bilateral hearing loss. 7. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.