Citation Nr: 20009964 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-01 308 DATE: February 6, 2020 ORDER The request to reopen the claim of entitlement to service connection for diabetes mellitus, type II, is granted. The request to reopen the claim of entitlement to service connection for hypertension is granted. The request to reopen the claim of entitlement to service connection for kidney disease is granted. The request to reopen the claim of entitlement to service connection for diabetic retinopathy is granted. The request to reopen the claim of entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for kidney disease is remanded. Entitlement to service connection for diabetic retinopathy is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for diverticulitis is remanded. Entitlement to service connection for a thyroid disability is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to service connection for residuals of an abdominal aortic aneurysm is remanded. Entitlement to service connection for a dental disability is remanded. FINDINGS OF FACT 1. In an August 2009 rating decision, the Veteran was denied service connection for diabetes mellitus, type II, on the basis that it was not related to or incurred in service. Hypertension, erectile dysfunction, kidney disease, and diabetic retinopathy were denied on the basis that the Veteran did not have diabetes mellitus, type II, and thus these disabilities could not be secondary to such disability. The Veteran was notified of the decision in correspondence issued the same month. He did not appeal the decision and new evidence was not submitted within a year after the decision. Therefore, the decision became final. 2. During his August 2019 Board hearing, the Veteran testified that his ship, the SS American Challenger, was within one mile of the Vietnam shore. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a relation between diabetes mellitus, type II, to the Veteran’s service. 3. In September 2015, VA received private treatment records reflecting a diagnosis of diabetes mellitus type II. This evidence is relevant and probative, and it helps cure a prior evidentiary defect for the issues of service connection for hypertension, erectile dysfunction, kidney disease, and diabetic retinopathy; namely, the lack of a diagnosis of diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The August 2009 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.302 (2018). 2. The evidence received since the August 2009 rating decision, which denied service connection for diabetes mellitus, type II, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 3. The evidence received since the August 2009 rating decision, which denied service connection for hypertension, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 4. The evidence received since the August 2009 rating decision, which denied service connection for kidney disease, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 5. The evidence received since the August 2009 rating decision, which denied service connection for diabetic retinopathy, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 6. The evidence received since the August 2009 rating decision, which denied service connection for erectile dysfunction, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA). In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. This case was remanded by the Board in November 2019. The issues currently before the Board were stayed pending the effective date of the Blue Water Navy Vietnam Veterans Act of 2019. Because that law is now effective, the issues have returned to the Board and are ready for adjudication. The issues of entitlement to a compensable rating for a bilateral hearing loss disability and entitlement to a total disability rating based on individual unemployability (TDIU) were remanded by the Board and remain in remand status at the Agency of Original Jurisdiction (AOJ). They will be the subject of a future Board decision, if otherwise in order. The Board notes that the Veteran withdrew his claim of entitlement to service connection for major depressive disorder after he filed his substantive appeal (VA Form 9) but prior to when the case was certified to the Board. See May 2019 statement. As a result, that issue is not on appeal. For the reasons stated above, the request to reopen claims of service connection for diabetes mellitus, type II, hypertension, kidney disease, diabetic retinopathy, and erectile dysfunction are granted. REASONS FOR REMAND All issues are remanded. The Veteran asserts that these issues are due to exposure to herbicide agents, secondary to diabetes, or both. He reported that, during service, he was aboard the USS Dubuque (spelled as “Debute” in the transcript) and then the SS American Challenger. See, e.g., August 2019 Board hearing. His military personnel file reflects that he participated in the evacuation operation off the coast of Vietnam from April 17, 1975 to April 28, 1975, was assigned to the 3rd Marine Division (3rdMarDiv), Fleet Marine Forces (FMF), 9th Marine Amphibious Brigade (9thMAB), and was aboard the SS American Challenger. See April 1975 military personnel records [containing typographical error “Americal”]. The evidence is incomplete as to whether the Veteran’s service included service offshore of Vietnam in the territorial waters, not more than 12 nautical miles. See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966; see also Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Thus, remand is necessary to obtain such information. The Veteran indicated that there are private treatment records outstanding. See August 2019 Board hearing. As a result, remand to attempt to obtain such records is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from December 2019 to the present. 2. The AOJ should obtain, if possible, records of all private evaluations and treatment the Veteran has received, to include for dental treatment. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 3. The AOJ should submit a request to the Joint Services Records Research Center (JSRRC) or other appropriate source for any information that might corroborate service in the offshore or territorial waters of Vietnam. Specifically: Determine whether the Veteran was in the territorial or offshore waters (12 nautical miles) of Vietnam while aboard the USS Dubuque, SS American Challenger—which is corroborated in records—or during any other assignment while in the 3rdMarDiv FMF 9thMAB, to include (but not limited to) from April 17, 1975 to April 28, 1975. Successive requests must be made to JSRRC or other source until the entire relevant time period has been considered. If the JSRRC responds that it is unable to comply with the request, the AOJ should produce a formal memorandum for the file documenting efforts to obtain this information. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.