Citation Nr: 20036736 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 19-23 020 DATE: May 28, 2020 ORDER TO VACATE The January 16, 2020, Board decision is vacated. REASONS AND BASES The Board may vacate an appellate decision at any time upon request of the Veteran or his or her representative, or on the Board’s own motion, when a Veteran has been denied due process of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. The Board finds that its January 16, 2020, decision contains an error that impeded due process, and therefore the decision is vacated. See 38 C.F.R. § 20.904. ORDER Service connection for a right foot disability is granted. Service connection for a left foot disability is granted. FINDINGS OF FACT 1. The Veteran’s right foot disability had its onset during service. 2. The Veteran’s left foot disability had its onset during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REMANDED Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a bilateral kidney disability is remanded. Entitlement to service connection for a bilateral lung disability is remanded. Entitlement to service connection for muscle spasms is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1962 to September 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2019 video conference hearing. The Board’s January 16, 2020, decision that dismissed service connection for a bilateral eye disability; posttraumatic stress disorder (PTSD); sleep apnea; erectile dysfunction; bilateral kidney disability; bilateral lung disability; muscle spasms; left foot disability; and for a right foot disability, is vacated. The Board notes that to the extent the January 2020 decision indicated the matter of entitlement to service connection for PTSD was on appeal, such was in error. The matter of entitlement to service connection for PTSD was awarded in a June 2019 rating decision, rated 50 percent disabling, effective October 10, 2017. Hence, such matter is not on appeal. The Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record. Lynch v. Wilkie, 30 Vet. App. 296, 304 (2018). If the Board determines that a claimed condition was caused by an unclaimed condition, the Secretary must investigate service connection for the unclaimed condition if there is evidence suggesting that it may be associated with service. DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). This is because pro se claimants may not have the medical or legal expertise to identify the precise disability for which they are seeking compensation, and VA has a duty to liberally construe their filings. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this particular case, the Veteran testified at the hearing that when he filed his claim for several of the disabilities on appeal, including for a bilateral eye disability, erectile dysfunction, and a bilateral kidney disability, that he also intended to file a claim for type 2 diabetes mellitus as the cause of those disabilities. Accordingly, the Board finds investigate whether diabetes mellitus type 2 is related to service to determine whether service connection is warranted for other disabilities. DeLisio.   Service Connection 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a left foot disability. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. Even in the absence of a diagnosed disability, evidence of functional limitations due to symptoms can meet this requirement. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Specifically, in Saunders v. Wilkie, the Federal Circuit found that the term “disability,” as used in 38 U.S.C. § 1110, refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. After a review of the evidence of record, the Board finds that service connection is warranted for right and left foot disability. The Veteran testified that his right and left foot pain started during service, and that he has had recurrent right and left foot pain since service. See October 2019 video conference hearing. As to the credibility of the Veteran’s statements, the Veteran has denied seeking treatment during service, enduring the pain despite the discomfort. The Board finds the Veteran’s reports of right and left foot pain since service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board observes that the Veteran is also competent to report right and left foot pain during and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In light of the foregoing, and after resolving any doubt in the Veteran’s favor, the Board finds that service connection for right and left foot disability is warranted. See Flynn v. Brown, 6 Vet. App. 500 ,503 (1994). REASONS FOR REMAND 3. Entitlement to service connection for a bilateral eye disability is remanded. 4. Entitlement to service connection for sleep apnea is remanded. 5. Entitlement to service connection for erectile dysfunction is remanded. 6. Entitlement to service connection for a bilateral kidney disability is remanded. 7. Entitlement to service connection for a bilateral lung disability is remanded. 8. Entitlement to service connection for muscle spasms is remanded. On July 1, 2019, the Secretary of Veterans Affairs directed the 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 creates new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. The stay has now been lifted. The Veteran has expressly denied setting foot in Vietnam. See October 2019 hearing. However, the Veteran has testified that he was exposed to Agent Orange while serving aboard the USS Enterprise (January 1966 through October 1967) and the USS Henry W. Tucker (March 1968 through September 1969). The Veteran testified at the October 2019 hearing that he conducted repairs on riverboats that had electrical problems, and specifically that the riverboats would come to his ship, he would get on those boats, and perform the requisite repairs. The Veteran also maintains that the USS Enterprise and the USS Henry W. Tucker were within 12 nautical miles of the coast of the Republic of Vietnam. As noted above, the Veteran served on active duty in the Navy from October 1962 to September 1969. His DD Form 214 lists his related civilian occupation military occupational specialty as electrical repairman. Service personnel performance evaluation reports show that the Veteran served as the ship electrician aboard both the USS Enterprise and the USS Henry W. Tucker. See September 1967 report of enlisted performance evaluation; see also September 1969 report of enlisted performance evaluation. The Board observes that updated guidance provides that, for the purposes of determining whether a veteran may be presumed to have been exposed to herbicide agents (Agent Orange), the term “Service in the Republic of Vietnam” includes not only service on the landmass and inland waterways, but also service in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Presently, there is no indication that the National Personnel Records Center (NPRC), or any other appropriate official source, has addressed whether the Veteran served on any ships in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam, to include any service on the USS Enterprise and the USS Henry W. Tucker. Given the foregoing, the Board finds that a remand is necessary to determine if the Veteran had service on any ships, to include the USS Enterprise and the USS Henry W. Tucker, in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam, and to obtain copies of deck logs, ship logs, or any other documents, detailing the movements and operations of the USS Enterprise and the USS Henry W. Tucker during the Veteran’s service period. The Board also notes that the Veteran testified at the October 2019 hearing that his sleeping and breathing problems began during service, and that he was exposed to asbestos during service, and that his sleep apnea and bilateral lung disabilities are secondary to his asbestos exposure during service. This theory of entitlement has not been considered by the Agency of Original Jurisdiction (AOJ). The Board finds that the Veteran was likely exposed to asbestos during service, and on remand the AOJ should obtain a VA examination or opinion. Finally, the Veteran testified at the October 2019 hearing that he received private medical treatment from Dr. J.B. for his various disabilities. Requests for records from Dr. J.B. were made in March and April 2020. A May 2020 VA letter was mailed to the Veteran informing him the Board had attempted to obtain, but had been unable to acquire, private treatment records from Dr. J.B. While the Veteran has submitted some Dr. J. B. private treatment records, it is clear there are outstanding private treatment records from Dr. J.B. As these matters are already being remanded, these records should again be sought on remand. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, particularly from Dr. J.B., located at 2400 Hwy 365 Suite 205, Nederland, Texas, 77627. 2. Contact all appropriate official sources, to include the National Personnel Records Center (NPRC), and/or the Joint Services Records Research Center (JSRRC), to determine if the Veteran served within the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam while serving in the Navy from October 1962 to September 1969. The deck logs, ship logs, or any other documents, detailing the movements of the Enterprise and the USS Henry W. Tucker. If more detailed information is needed for this research, the appellant should be given an opportunity to provide it. 3. Schedule the Veteran for an examination and/or opinion to determine the nature and etiology of his sleep apnea and bilateral lung disabilities. The Veteran’s claims file should be provided to and reviewed by the examiner. All indicated studies should be performed. (Continued on the next page)   Based on review of the record, and interview of the Veteran, the examiner should identify (by medical diagnosis) the Veteran’s bilateral lung disability. The examiner should also provide an opinion whether it is at least as likely as not the bilateral lung disability and/or sleep apnea had its(their) onset in service or are otherwise related to service, to include as a result of asbestos exposure therein. The examiner should give a reasoned explanation for all opinions provided. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.