Citation Nr: 21003343 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-16 933 DATE: January 21, 2021 ORDER 1. New and material evidence having been received, the claim of service connection for diabetes mellitus, type 2, is reopened. 2. New and material evidence having been received, the claim of service connection for a right upper extremity disorder is reopened. 3. New and material evidence having been received, the claim of service connection for a left upper extremity disorder is reopened. 4. New and material evidence having been received, the claim of service connection for a right lower extremity disorder is reopened. 5. New and material evidence having been received, the claim of service connection for a left lower extremity disorder is reopened. REMANDED 1. Service connection for a psychiatric disorder. 2. Service connection for diabetes mellitus, type 2. 3. Service connection for a right upper extremity disorder. 4. Service connection for a left upper extremity disorder 5. Service connection for a right lower extremity disorder. 6. Service connection for a left lower extremity disorder. 7. An initial compensable rating for hearing loss. 8. A total disability rating based on individual unemployability (TDIU). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to July 1976. The case is on appeal from July 2013 and August 2015 rating decisions. In December 2019, the Veteran testified at a Board hearing. The Veteran requested the record remain open for 60 days. Thereafter, in January 2020, the Veteran’s representative requested a 60 day extension to submit additional evidence, which the Board granted in February 2020. The Veteran’s representative requested another 60 day extension to submit additional evidence in April 2020 and subsequently submitted additional evidence in June 2020. The Board granted the second 60 day extension request in August 2020. Thereafter, the Board granted another 60 day extension request in October 2020. However, no additional evidence has been submitted since June 2020. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of service connection for diabetes mellitus, type 2. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for a right upper extremity disorder. 3. Whether new and material evidence has been submitted to reopen a claim of service connection for a left upper extremity disorder. 4. Whether new and material evidence has been submitted to reopen a claim of service connection for a right lower extremity disorder. 5. Whether new and material evidence has been submitted to reopen a claim of service connection for a left lower extremity disorder. By an April 2003 rating decision, claims of service connection for diabetes mellitus, type 2, and bilateral upper and lower extremity peripheral neuropathies were denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claims was received until the present claim to reopen in September 2011. No new evidence or notice of disagreement was received by VA within one year of the issuance of the April 2003 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claims of service connection for diabetes and bilateral upper and lower extremity disorders are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also May 2013 Joint Services Records Research Center (JSRRC) Coordinator Memorandum; December 2019 Board hearing testimony. REASONS FOR REMAND 1. Service connection for a psychiatric disorder. The Veteran contends that he has a psychiatric disorder due to service. In a September 2011 correspondence, he claimed that he has posttraumatic stress disorder (PTSD) due to service. The Veteran stated that he volunteered to fly on helicopter missions from the USS Midway to rescue refugees from Saigon, Vietnam in April 1975. In a March 2012 correspondence, he repeated this claim and also submitted an article on the transportation of refugees from Saigon, which was called Operation Frequent Wind. While the Veteran claimed service connection for PTSD, the Board for has broadly construed the claim to include any psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran’s service treatment records (STRs) show that he was seen by a treatment provider for a drug overdose in April 1976. The treatment provider noted the presence of insomnia and depression as well as the fact that he has a wife and child in the Philippines. Later in May 1976 he was seen for drug use. The treatment provider reported that the Veteran had a long history of feeling rejected by family members prior to service. The provider also reported that the Veteran was not allowed to bring his Filipino wife and child back to the United States. The provider diagnosed him with a mixed personality disorder. In June 1976, a drug rehabilitation officer reported that the Veteran should be discharged for drug use and lack of motivation. There is no mention of the Veteran taking part in rescue missions to Saigon in his STRs or service personnel records (SPRs). The Veteran’s post-service VA treatment records include a mental health assessment from March 2004. The Veteran reported using morphine and heroin and eventually turning himself in for drug rehabilitation during service. He was seen by a VA psychotherapist in April 2004. He reported being unemployed and experiencing chronic low mood, frustration, and being angry due to chronic pain. The psychotherapist diagnosed the Veteran with a mood disorder related to his general medical condition. In October 2004, another VA psychiatrist found that he experiences depression due to financial and medical stressors. In May 2013, a JSRRC coordinator provided a memorandum in regard to the Veteran’s claim of participating in a helicopter flight to Saigon to rescue refugees during service. The coordinator noted that, while the Veteran’s SPRs do not state that he participated in Operation Frequent Wind, the article submitted by the Veteran in March 2012 showed Army Combat Controllers were awarded the Silver Star for service in this operation on April 29, 1975. She stated that the Veteran’s service in the same unit that participated in Operation Frequent Wind strongly suggests that he was exposed to the incident or its aftermath. The file shows that the Veteran was noted as failing to report for a VA psychiatric examination for this claim in July 2013. Later in July 2013, the RO found the May 2013 JSRRC coordinator memorandum was flawed because the Veteran’s claim of flying on evacuation helicopters is not supported by the record. The RO reported that the helicopters were not assigned to the USS Midway and that the Veteran’s SPRs do not support any type of duties that would be needed in support of the evacuation of Saigon other than his service on board the USS Midway. Thereafter, in January 2015, the Veteran submitted a psychiatric evaluation from a private psychiatrist written in November 2014. The psychiatrist diagnosed the Veteran with PTSD based on the stressor of traveling to Vietnam and rescuing refugees in 1975. During the December 2019 Board hearing, the Veteran provided a different account of assisting with the Saigon evacuation. He stated that he was late reporting to the USS Midway when it left the Philippines, so he was put on a helicopter to take him to the ship. He stated that the helicopter was then diverted to Saigon to pick up refugees. The Veteran also reported that he married and had a child with a Filipino woman, but that he was prevented from bringing them to the United States. He also stated that he was seen for a VA psychiatric evaluation in regard to this claim. The Board notes that, in July 2013, the RO found that the Veteran failed to report for such examination. Thereafter, in June 2020, the Veteran submitted a psychiatric evaluation from a private psychologist. The psychologist diagnosed the Veteran with generalized anxiety disorder and a social phobia and anxiety disorder. She found that, while the Veteran used illegal drugs in high school, his mental health problems are not caused by abuse of intoxicants and are instead more likely than not related to his participation in Operation Frequent Wind. As the Veteran reported attempting to attend the July 2013 examination, he should be afforded an examination to determine the nature and etiology of his current psychiatric conditions. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In addition, the RO should take appropriate steps to attempt to verify the Veteran’s claims of traveling on a helicopter to rescue refugees from Saigon in April 1975. 2. Service connection for diabetes mellitus, type 2. 3. Service connection for a right upper extremity disorder. 4. Service connection for a left upper extremity disorder 5. Service connection for a right lower extremity disorder. 6. Service connection for a left lower extremity disorder. The Veteran contends that he has diabetes mellitus, type 2, and bilateral upper and lower extremity neuropathies secondary to diabetes. In a September 2011 statement, he reported setting foot in Vietnam while assisting with the rescue of refugees from Saigon by helicopter in April 1975. In addition, during the December 2019 Board hearing, he reported being on board the USS Midway when it was within 12 nautical miles of Vietnam. The Veteran’s SPRs show that he served on board the USS Midway from August 1974 until May 1975, but do not indicate service in Vietnam. In May 2013, a JSRRC coordinator provided a memorandum in regard to the Veteran’s claim of serving in Vietnam. The coordinator noted that the USS Midway lifted several thousand Vietnamese and Americans out of Vietnam in April 1975. She reported that the Veteran’s claimed service in Vietnam is corroborated based on the size of the operation. In July 2013, the Veteran was afforded an examination in regard to these claims. The examiner diagnosed the Veteran with diabetes mellitus, type 2, and bilateral upper and lower extremity diabetic peripheral neuropathies. Later in July 2013, the RO found that the May 2013 JSRRC memorandum was flawed because the Veteran’s claim of flying by helicopter to Saigon is not supported by the record. The RO reported that the evacuation helicopters were not assigned to the USS Midway and that the Veteran’s SPRs do not support any type of duties that would be needed in support of evacuation of Saigon, other than his service on board the USS Midway. The RO also reported that aircraft carriers operated 30 to 100 miles offshore. On remand, a determination should be made as to whether the USS Midway was within 12 nautical miles of Vietnam during the Veteran’s service on board. 7. An initial compensable rating for hearing loss. The Veteran is seeking a compensable rating for hearing loss. He was afforded VA examinations in July 2013 and December 2015. During the December 2019 Board hearing, the Veteran reported that his hearing has worsened since the December 2015 examination. As there are at least indications that the Veteran’s hearing loss has worsened since most recent examination, he should be afforded a new examination to assess the current extent and severity of such condition. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 8. A TDIU. The Veteran is seeking a TDIU due to the above claimed conditions, including hearing loss. A remand is also necessary for this claim as it is intertwined with the remanded hearing loss rating claim. These claims are REMANDED for the following actions: 1. Request the JSRRC, or any other appropriate official source, investigate and attempt to verify whether the Veteran travelled by helicopter to Saigon, Vietnam to assist with rescuing refugees in April 1975. All responses should be documented in the claims file. 2. Determine whether the USS Midway was within 12 nautical miles of Vietnam at any time during the Veteran’s service on board the ship. The determination is to be documented in the claims file. 3. Obtain complete VA treatment records from December 2015. 4. After completing the records development indicated above, schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of his psychiatric disorders. The entire claims file should be reviewed by the examiner. Thereafter, the examiner is asked to: (a.) Identify all of the Veteran’s psychiatric disorders experienced since September 2011, to include whether he has met the criteria for PTSD. If PTSD is not diagnosed, it should be explained why this diagnosis is not appropriate. (b.) If the examiner finds that the Veteran meets the diagnostic criteria for PTSD, indicate whether it is at least as likely as not the result of a verified in-service stressor, to include service on board the USS Midway during Operation Frequent Wind and separation from his Filipino wife and child. (c.) For each currently diagnosed psychiatric disorder other than PTSD, the examiner should state whether it is undebatable from a medical standpoint that each disorder preexisted his entrance into service. (d.) For each psychiatric disorder found to preexist his entrance into service, state whether is it undebatable from a medical standpoint that it was not aggravated during service. Aggravation means an increase in severity beyond the natural progress of the disease. (e.) For each currently diagnosed disorder other than PTSD and preexisting psychiatric disorders, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder had its onset during service or is otherwise related to service, to include service on board the USS Midway during Operation Frequent Wind and separation from his Filipino wife and child. A rationale should be provided for opinions expressed. 5. Schedule the Veteran for a VA examination to assess the severity of the service-connected hearing loss. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.