Citation Nr: 21002607 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-20 839 DATE: January 14, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to an initial disability rating in excess of 20 percent, for service-connected degenerative disc disease status-post anterior fusion of status post fusion of L2-S1, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1961 to August 1965. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO (i) denied entitlement to service connection for diabetes mellitus, type II and (ii) granted the claim for service connection for degenerative disc disease status-post anterior fusion of status post fusion of L2-S1, and assigned a 20 percent disability rating effective to December 12, 2013. The Veteran’s notice of disagreement (NOD) was received in August 2015. The RO issued the statement of the case (SOC) in April 2016, and the Veteran’s VA Form 9, substantive appeal was received in April 2016. During the pendency of the appeal, in a December 2016 rating decision the RO found that the December 12, 2013 effective date for degenerative disc disease status-post anterior fusion of status post fusion of L2-S1, was clearly and unmistakably erroneous, and changed the effective date to January 30, 2014. However, the Veteran did not appeal that rating decision, and the issue is not before the Board. 1. Entitlement to service connection for diabetes mellitus, type II The Veteran contends that he is entitled to service connection for diabetes mellitus, type II, due to in-service Agent Orange exposure. Specifically, he contends that he was stationed on ships which were within the coastal waters off the coast of the Republic of Vietnam during the Vietnam War. If a veteran was exposed to herbicide agent, including Agent Orange, during active service, service connection is presumed for certain disorders, including diabetes mellitus. 38 C.F.R. § 3.309 (e). The Veteran contends that he is entitled to a presumption of Agent Orange exposure, under the newly-enacted Blue Water Act of 2019. Pub. L. No. 116-23, 133 Stat. 966 (2019). The Act defined service “offshore of the Republic of Vietnam” as encompassing service in the territorial sea extending 12 nautical miles from the shores both of that nation and of Cambodia. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 2(a), 133 Stat. 966 (2019), codified at 38 U.S.C. § 1116(A) (2020). Under the Act, the Veteran's service must take place between January 9, 1962 and May 7, 1975. 38 U.S.C. § 1116A (a)(2020). Accordingly, any veterans that served within 12 nautical miles from the shore of the Republic of Vietnam during the Vietnam era, are presumed to have been exposed to herbicides, including Agent Orange, in the same manner as those Vietnam era veterans who served on land in the Republic of Vietnam during the same time frame. Service personnel records show that the Veteran was stationed aboard the U.S.S. Vesuvius (AE-15) from November 1961 to April 1964. He was later stationed aboard the U.S.S. Mount Katmai (AE-15) from April 1964 to August 1965. Accordingly, the issue is whether the Veteran was stationed aboard either ship at any time during which it was within twelve nautical miles of the coast of Vietnam during the Vietnam era. If so, the Veteran would be presumed to have been exposed to herbicides during service; and, therefore service connection would be presumed for diabetes mellitus, type II. Accordingly, a remand is necessary to determine whether the Veteran is entitled to the presumption of in-service herbicide exposure pursuant to the new law. Additionally, in the event that the Veteran’s service does not entitle him to the presumption of in-service herbicide exposure, he should nevertheless be afforded a VA examination to address whether there is a medical nexus between his disability and his service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (even when the Veteran is not presumed to have been exposed to herbicide agents during service, that alone does not preclude a finding of service connection on a direct basis). In light of the liberalizing law regarding blue water navy veterans, the matter is remanded to determine whether the Veteran’s service, during the requisite time frame, was within twelve nautical miles of the Republic of Vietnam and, if necessary, to afford the Veteran a VA examination to obtain a nexus opinion. 2. Entitlement to an initial disability rating in excess of 20 percent for service-connected degenerative disc disease status-post anterior fusion of status post fusion of L2-S1 The Veteran contends that he is entitled to a disability rating in excess of the initially assigned 20 percent. Specifically, the Veteran contends that the severity of the disability is worse than was shown at his last VA examination, in April 2015. See, generally, Appellate Brief dated December 2020, pp. 2, 4. Generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening, or increase in severity since the last examination warrant a new examination if the record does not adequately reveal the current state of the Veteran’s disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In this case, the Veteran contends that the previous examination, which was conducted over five years ago, is “too old to adequately evaluate the disability.” It can be reasonably inferred that the Veteran thus believes the severity of the disability at present was not shown at the April 2015 examination. The VA’s duty to assist a veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran’s disability. See Hart v. Mansfeld, 21 Vet. App. 505, 508 (2007). As the Veteran asserts that the service-connected degenerative disc disease status-post anterior fusion of status post fusion of L2-S1 is worse than originally rated, and over five years have passed since the service-connected degenerative disc disease status-post anterior fusion of status post fusion of L2-S1was last evaluated, a new examination is necessary. The matters are REMANDED for the following action: 1. Determine whether the Veteran served within twelve nautical miles of the Republic of Vietnam aboard the U.S.S. Vesuvius or U.S.S. Mount Katmai during the Vietnam era in light of the recently enacted Blue Water Act of 2019. If the Veteran’s service was not within the twelve nautical mile territorial sea of the Republic of Vietnam and the Veteran’s service does not qualify for the herbicide exposure presumption, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran’s diabetes mellitus, type II. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment, personnel, and post-service records. The examiner is requested to opine as to whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran’s diabetes mellitus, type II is related to an in-service injury, event, or disease, including exposure to Agent Orange. All opinions reached and conclusions formed should be supported by a thorough rationale and should be formed following consideration of the entirety of the Veteran’s claims file and any statements made by the Veteran. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected degenerative disc disease status-post anterior fusion of status post fusion of L2-S1. Range of motion should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). All opinions reached and conclusions formed should be supported by a thorough rationale and should be formed following consideration of the entirety of the Veteran’s claims file and any statements made by the Veteran. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.