Citation Nr: 20008019 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-16 317 DATE: January 30, 2020 ORDER Entitlement to service connection for coronary artery disease as secondary to herbicide exposure is granted. Entitlement to service connection for diabetes mellitus, type 2 as secondary to herbicide exposure is granted. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus, type 2 is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to herbicide exposure or to coronary artery disease, is remanded. Entitlement to service connection for macular degeneration as secondary to diabetes mellitus, type 2 is remanded. Entitlement to service connection for kidney disease as secondary to diabetes mellitus, type 2 is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy as secondary to diabetes mellitus, type 2 is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy as secondary to diabetes mellitus, type 2 is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy as secondary to diabetes mellitus, type 2 is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy as secondary to diabetes mellitus, type 2 is remanded. FINDINGS OF FACT 1. The Veteran is shown to have served in the 12 nautical mile territorial sea of the Republic of Vietnam during the Vietnam era. 2. The Veteran’s currently-diagnosed coronary artery disease is presumed to be due to exposure to herbicide agents during Vietnam service. 3. The Veteran’s currently-diagnosed diabetes mellitus, type 2 is presumed to be due to exposure to herbicide agents during Vietnam service. 4. The Veteran does not have a diagnosis of erectile dysfunction during the appellate period. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for diabetes mellitus, type 2 due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to January 1967, including service within the 12 nautical mile territorial sea of the Republic of Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Service Connection 1. Entitlement to service connection for coronary artery disease as secondary to herbicide exposure is granted. 2. Entitlement to service connection for diabetes mellitus, type 2 as secondary to herbicide exposure is granted. The Veteran claims entitlement to service connection for coronary artery disease and diabetes mellitus type 2 under applicable regulatory presumptions based on exposure to herbicide agents. He contends in part that he was exposed to herbicide agents during his Vietnam Era service aboard the USS Valley Forge, when it traveled and docked near the Republic of Vietnam. 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 coronary artery disease and diabetes type II among diseases presumptively associated with exposure to certain herbicide agents). On July 1, 2019, the Secretary of Veterans Affairs directed the Board of Veterans’ Appeals (Board) to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. The Act created new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in, among other places, the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. The issues listed on the cover page of this decision were potentially affected by the Act and were stayed by the Board. The stay having been lifted, these issues are now properly before the Board. After a full review of the record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for coronary artery disease and diabetes mellitus type II are warranted on a presumptive basis. The Veteran is documented to have served on board the USS Valley Forge, and the evidence is at least in equipoise that the USS Valley Forge traveled in the territorial sea of the Republic of Vietnam while the Veteran was stationed on board. In this regard, the Board acknowledges the personnel records in evidence, which show that the Veteran was aboard the USS Valley Forge from 1965 to 1967. See also Form DD 214. The Board additionally acknowledges the Veteran’s submission of Navy Archive records, which show that the USS Valley Forge operated in the Vietnam campaign during the time of the Veteran’s service. Further, the Board notes that VA’s list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, (“ship list”) dated in July 2019 indicates that the USS Valley Forge entered the mouth of the Hue river in December 1965, and that it operated as a troop transport with helicopters and smaller vessels transporting troops on and off shore from September 1964 to September 1969. Additionally, the Board notes the Veteran’s testimony of April 2019 before the undersigned, along with the other lay statements of record, that the Veteran was a gunner’s mate and took supplies to the Vietnamese shore, including Da Nang, while also transporting injured soldiers back to the ship. The Veteran also testified he brought prisoners back to the ship as part of his duties. The Board finds the Veteran’s testimony to be credible as it is corroborated by the official evidence of record. In conclusion, affording the Veteran the benefit of the doubt, the Board finds that he served during the relevant period “in the Republic of Vietnam” under 38 U.S.C. § 1116 as interpreted by the Blue Water Navy Vietnam Veterans Act of 2019. Thus, he was presumptively exposed to herbicide agents during such service. As he undisputedly has a current diagnosis of coronary artery disease and diabetes mellitus type II, diseases presumptively linked to such exposure, a nexus opinion is unnecessary. Service connection for coronary artery disease and diabetes mellitus type II is therefore granted on a presumptive basis. 3. Entitlement to service connection for erectile dysfunction as secondary to diabetes mellitus, type 2 The Veteran asserts he suffers from erectile dysfunction due to diabetes mellitus, type 2. The record contains no current diagnosis for or symptoms of erectile dysfunction. The Veteran has not submitted any private or VA treatment records indicating any such diagnosis. In fact, multiple private treatment notes dated from August 2012 to July 2013 indicate normal genitourinary and neuromuscular examinations. In the absence of any current erectile dysfunction disability, the Board finds that service connection is not warranted. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran asserts that he has erectile dysfunction. However, the Board finds that the Veteran is a layperson and there is no evidence of record to show that he has the specialized medical education, training, and experience necessary to provide a competent medical opinion as to the nature and etiology of a disability of the genitourinary system that warrants service connection. Diagnosing the claimed condition and providing an etiological opinion is medically complex in nature and not subject to be diagnosed or identified by a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran’s statements regarding diagnosis and etiology are not competent. Therefore, the preponderance of the evidence is against the Veteran’s claim for service connection for erectile dysfunction. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure or to coronary artery disease, is remanded. 2. Entitlement to service connection for macular degeneration as secondary to diabetes mellitus, type 2 is remanded. 3. Entitlement to service connection for kidney disease as secondary to diabetes mellitus, type 2 is remanded. 4. Entitlement to service connection for right upper extremity peripheral neuropathy as secondary to diabetes mellitus, type 2 is remanded. 5. Entitlement to service connection for left upper extremity peripheral neuropathy as secondary to diabetes mellitus, type 2 is remanded. 6. Entitlement to service connection for left lower extremity peripheral neuropathy as secondary to diabetes mellitus, type 2 is remanded. 7. Entitlement to service connection for right lower extremity peripheral neuropathy as secondary to diabetes mellitus, type 2 is remanded. The Veteran was not afforded VA examinations for his claims of service connection for hypertension, macular degeneration, kidney disease and bilateral upper and lower extremity peripheral neuropathy. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The McLendon elements are satisfied with regard to the Veteran’s claimed hypertension. The first element is not in dispute; the Veteran’s private medical records reflect a hypertension diagnosis. See January 30, 2012 private clinic records. Regarding the second element, the Board notes that the Veteran’s in-service herbicide exposure has been conceded herein. Furthermore, the Veteran testified in the April 2019 hearing before the undersigned that hypertension is also claimed as secondary to coronary artery disease, for which service connection has been granted herein. Regarding the third and fourth elements, there is an indication that the Veteran’s hypertension could be related to service or a service-connected disability. In this regard, the Board acknowledges that hypertension is not on the list of conditions presumptively related to herbicide exposure. However, multiple post-service cardiology records indicate hypertension along with diagnosis of coronary artery disease. Indeed, a September 2015 VA note reflects that the Veteran’s medical history is significant for hypertension and coronary artery disease, among other disabilities. However, there is insufficient evidence of record by which the Board can make a decision. The Veteran was not afforded a VA examination to determine the nature and etiology of his hypertension, and the Board affords the Veteran every benefit of the doubt. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The McLendon elements are satisfied with regard to the Veteran’s claimed macular degeneration disability. The first element is not in dispute; the Veteran’s private medical records reflect a macular degeneration diagnosis. See June 2015 ophthalmology records. Regarding the second element, the Board notes that the Veteran’s in-service herbicide exposure has been conceded herein, and that service connection has been granted for diabetes mellitus, type 2. Indeed, the Veteran claims macular degeneration as secondary to his diabetes. Regarding the third and fourth elements, there is an indication that the Veteran’s diabetes could be related to his diabetes. In this regard, the Board acknowledges the Veteran’s testimony that his vision problems are related to diabetes. However, there is insufficient evidence of record by which the Board can make a decision. The Veteran was not afforded a VA examination to determine the nature and etiology of his macular degeneration, and the Board affords the Veteran every benefit of the doubt. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The McLendon elements are satisfied with regard to the Veteran’s claimed kidney disability. The first element is not in dispute; the Veteran’s private medical records reflect a diagnosis of chronic kidney disease. See March 2012 hospital discharge note. Regarding the second element, the Board notes that the Veteran’s in-service herbicide exposure has been conceded herein, and that service connection has been granted for diabetes mellitus, type 2. Indeed, the Veteran claims kidney disease as secondary to his diabetes. Regarding the third and fourth elements, there is an indication that the Veteran’s kidney disability could be related to his diabetes. In this regard, the Board acknowledges the Veteran’s testimony that his kidney disease is related to diabetes. However, there is insufficient evidence of record by which the Board can make a decision. The Veteran was not afforded a VA examination to determine the nature and etiology of his kidney disease, and the Board affords the Veteran every benefit of the doubt. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The McLendon elements are satisfied with regard to the Veteran’s claimed bilateral upper and lower extremity neuropathy. Regarding the first element, the Veteran’s VA medical records reflect a diagnosis of neuropathy. See September 2015 VA medical records. Regarding the second element, the Board notes that the Veteran’s in-service herbicide exposure has been conceded herein, and that service connection has been granted for diabetes mellitus, type 2. Indeed, the Veteran claims that his bilateral upper and lower extremity neuropathy is secondary to his diabetes. Regarding the third and fourth elements, there is an indication that the Veteran’s neuropathy could be related to his diabetes. In this regard, the Board acknowledges the Veteran’s testimony that his neuropathy is related to diabetes, and further acknowledges a September 2015 VA medical note stating that the Veteran has diabetes complicated with neuropathy. However, there is insufficient evidence of record by which the Board can make a decision. The Veteran was not afforded a VA examination to determine the nature and etiology of his neuropathy, and the Board affords the Veteran every benefit of the doubt. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the record any outstanding VA and private treatment records pertinent to his claimed disabilities. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner must provide a well-reasoned opinion as to each of the following: a. Whether it is at least as likely as not (50 percent probability or greater) that the hypertension disability began in service or is otherwise etiologically related to the Veteran’s time on active duty. b. Whether it is at least as likely as not (50 percent probability or greater) that the disability was caused by the Veteran’s service-connected coronary artery disease. c. Whether it is at least as likely as not (50 percent probability or greater) that the disability was aggravated by the Veteran’s service-connected coronary artery disease. The examiner must specifically address the entirety of the pertinent evidence of record, including lay statements, as well as the Veteran’s conceded exposure to Agent Orange. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the report. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his macular degeneration. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner must provide a well-reasoned opinion as to whether it is at least as likely as not (50 percent probability or greater) that the macular degeneration disability was caused or aggravated by the Veteran’s service-connected diabetes mellitus, type 2. The examiner must specifically address the entirety of the pertinent evidence of record, including lay statements and all pertinent ophthalmology and diabetes records. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the report. 4. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his kidney disability. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner must provide a well-reasoned opinion as to whether it is at least as likely as not (50 percent probability or greater) that the kidney disability was caused or aggravated by the Veteran’s service-connected diabetes mellitus, type 2. The examiner must specifically address the entirety of the pertinent evidence of record, including lay statements and all pertinent kidney and diabetes records. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the report. 5. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral upper and lower extremity neuropathy. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner must provide a well-reasoned opinion as to whether it is at least as likely as not (50 percent probability or greater) that the bilateral upper and lower extremity neuropathy is caused or aggravated by the Veteran’s service-connected diabetes mellitus, type 2. The examiner must specifically address the entirety of the pertinent evidence of record, including lay statements and all pertinent neurological and diabetes records. Further, specific attention should be given to the September 2015 VA medical records which state the Veteran has diabetes complicated by neuropathy. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the report. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.C., 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.