Citation Nr: 20021499 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 11-13 638 DATE: March 26, 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 impotency, claimed as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for vascular disease, claimed as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for cataracts, claimed as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1965 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2005 and March 2009 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this matter for development in May 2014, August 2015, and February 2018, and it now returns for further appellate review. The Board observes that, subsequent to the issuance of the June 2019 supplemental statement of the case, additional evidence, to include reports of hospitalization, has been associated with the file. The Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence; however, as these records are not pertinent to the issues on appeal, he is not prejudiced by the adjudication of his claims at the present time. 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicide agents. The Board remanded this matter in February 2018 in order to obtain an addendum opinion addressing whether the Veteran’s diabetes mellitus, type II, was related to his military service. Thereafter, an August 2018 VA examiner opined that there was no medical evidence that the Veteran’s reported in-service symptoms were early symptoms of diabetes, or he had exposure to toxins in service that led to the development of diabetes. However, the Board notes that the Veteran’s claim had also been previously denied on the basis that the evidence did not show that he was exposed to herbicide agents during his military service. In this regard, he has alleged that he was exposed to herbicide agents while serving aboard the USS Kitty Hawk. Specifically, his service personnel records reflect that he was aboard such ship from August 15, 1965, to May 28, 1967. Further, such show that he was awarded the Navy Unit Commendation Ribbon while participating in combat operations against enemy forces in Vietnam while aboard such ship from May 14, 1966, to November 26, 1965, and from December 4, 1966, to April 28, 1967; the Vietnam Service Medal with two bronze stars for service aboard the USS Kitty Hawk in the Vietnam theatre of operations from March 8, 1965, to December 24, 1965, and December 25, 1965, to a date to be announced; and the Republic of Vietnam Campaign Medal with device (1960-) for service aboard the USS Kitty Hawk from November 22, 1965, to May 22, 1966. It was also noted that he was designated eligible for hostile fire pay for the period of December 1965, January 1966, and February 1966. The law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, to include diabetes mellitus, type II, that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service, where a veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Previously, such did not include service in the territorial sea of Vietnam and, in June 2014, a Memorandum for Record from the Army and Joint Services Record Research Center (JSRRC) indicated that they could provide no evidence to support the Veteran’s claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam Era. However, in January 2019, the Federal Circuit issued a decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), in which it held that, for the purpose of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term “service in the Republic of Vietnam” includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation (emphasis added). Thereafter, on June 25, 2019, the Blue Water Navy Vietnam Veterans Act of 2019 was passed. In this regard, such creates a new statue to be codified at 38 U.S.C. § 1116A, which provides that a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116A(b). Such further provides that, notwithstanding any other provision of law, for purposes of this section, the Secretary shall treat a location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting at specified points. 38 U.S.C. § 1116A(d). As the current evidence of record does not definitively show that the Veteran was within 12 nautical miles offshore of the Republic of Vietnam per Procopio and 38 U.S.C. § 1116A, further development is warranted to determine whether the USS Kitty Hawk was in the territorial sea of Vietnam, extending 12 nautical miles offshore as contemplated by the relevant legal authority, while he was aboard. 2. Entitlement to service connection for impotency, claimed as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for vascular disease, claimed as secondary to diabetes mellitus, type II. 4. Entitlement to service connection for cataracts, claimed as secondary to diabetes mellitus, type II. 5. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to diabetes mellitus, type II. 6. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to diabetes mellitus, type II. 7. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus, type II. 8. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus, type II. As noted in the May 2014, August 2015, and February 2018 Board remands, the Veteran’s claims of service connection for impotency, vascular disease, cataracts, and peripheral neuropathy of the bilateral upper and lower extremities as secondary to diabetes mellitus, type II, are inextricably intertwined with the remanded claim for service connection for such diabetes mellitus, type II. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, the appropriate remedy where a pending claim is inextricably intertwined with claims currently on appeal is to remand the claims on appeal pending the adjudication of the inextricably intertwined claim. See Harris, supra. In this regard, the April 2016 VA examiner already determined that the Veteran’s diabetic neuropathy of the bilateral upper and lower extremities and erectile dysfunction (impotency) are related to his diabetes mellitus, type II. However, if, upon remand, the Veteran’s exposure to herbicide agents is conceded after further development, the AOJ must obtain an addendum opinion that addresses whether his claimed vascular disease and cataracts are secondary to his diabetes mellitus, type II. The matters are REMANDED for the following action: 1. Conduct any necessary development in order to determine whether the USS Kitty Hawk was within 12 nautical miles offshore of the Republic of Vietnam at any time during the period from August 15, 1965, to May 28, 1967, when the Veteran was aboard. All efforts at such verification should be documented. 2. If, and only if, the Veteran’s exposure to herbicide agents is acknowledged as a result of the actions taken in connection with the preceding directive, the AOJ should forward the record to an appropriate medical professional for an opinion addressing the etiology of the Veteran’s vascular disease and cataracts. The record and a copy of this Remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion on the following: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s vascular disease is caused or aggravated by his diabetes mellitus, type II? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s cataracts is caused or aggravated by his diabetes mellitus, type II? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.