Citation Nr: 21003870 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 18-41 636 DATE: January 25, 2021 ORDER Entitlement to service connection for diabetes mellitus is granted. Entitlement to a 10 percent rating for right and left great toe scars is granted. Entitlement to an initial rating in excess of 50 percent for migraine headaches is denied. REMANDED Entitlement to service connection for a back disability, including as secondary to service-connected disabilities is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial rating in excess of 10 percent for right foot hallux valgus is remanded. Entitlement to an initial rating in excess of 10 percent for left foot hallux valgus is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another person or being housebound is remanded. FINDINGS OF FACT 1. The Veteran served within 12 nautical miles of the Republic of Vietnam while aboard the U.S.S. Schofield, and is presumed to have been exposed to herbicides. 2. The Veteran’s diabetes mellitus is presumed related to in-service exposure to herbicides. 3. The Veteran’s right and left great toe scars are painful. 4. The Veteran’s left great toe scar is painful. 5. The Veteran’s migraine headaches are assigned a 50 percent disability rating throughout the period on appeal, which is the maximum schedular rating under Diagnostic Code 8100. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for a 10 percent rating for right and left great toe scars have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2019). 3. There is no legal basis for the assignment of a schedular rating in excess of 50 percent for migraine headaches. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from April 1972 to September 1973. These matters come to the before the Board of Veterans’ Appeals (Board) from October 2016 and February 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2020, and a transcript is of record. 1. Entitlement to service connection for diabetes is granted. The Veteran asserts that his diabetes mellitus is related to Agent Orange exposure while serving aboard the U.S.S. Schofield in the Vietnam War. A veteran who served in the Republic of Vietnam during the Vietnam Era, the period beginning January 9, 1962 and ending May 7, 1975, shall be presumed to have been exposed to an herbicide agent (like the dioxin in Agent Orange), unless there is affirmative evidence establishing he was not exposed to any such agent. 38 U.S.C. § 1116 (f) (2018). A disease associated with exposure to herbicide agents, including type II diabetes mellitus, will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during service. Such disease shall have become manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(ii) (2019). The Board notes that the Veteran has a current diagnosis of type II diabetes mellitus. See, e.g., February 2013 VA treatment record. Further, he served on active duty between January 1962 and May 1975. The question that remains is whether the Veteran’s active service qualifies as serving in the Republic of Vietnam for purposes of presumed exposure to herbicides. Effective January 1, 2020, the Blue Water Navy Vietnam Veterans Act of 2019 (Public Law 116-23) (to be codified at 38 U.S.C. § 1116A) extended the current presumption of herbicide exposure to veterans who served as far as 12 nautical miles from the shore of the Republic of Vietnam. Service personnel records show that the Veteran served aboard the U.S.S. Schofield from June 1972 to August 1973. A March 2018 email reply from the Defense Personnel Records Information Retrieval System states that the ship was in the Gulf of Tonkin in November 1972 and was in-port briefly at Da Nang Harbor, Republic of Vietnam, on November 17, 1972. The ship then conducted Naval Gunfire Support operations in the coastal waters of Republic of Vietnam from November 18 to December 8, 1972. On December 30, 1972, the ship departed to return to the Gulf of Tonkin. Given the above, and resolving all reasonable doubt in the Veteran’s favor, the Board observes that the U.S.S. Schofield ported at Da Nang and was likely within 12 nautical miles from the shore of the Republic of Vietnam thereafter. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Board finds that his diabetes is presumed related to in-service exposure to herbicides. Accordingly, service connection for diabetes mellitus is warranted. 2. Entitlement to a 10 percent rating for right and left great toe scars is granted. The Veteran asserts that higher ratings are warranted for the scars on his right and left great toes. During the October 2020 Board hearing, he testified that they were painful and irritated by walking. Under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804 (2019), a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings are warranted for additional scars. After review of the evidence, the Board finds that the Veteran has competently and credibly reported that his great toe scars are painful. In this regard, the Board notes that the Veteran is competent to report symptoms capable of lay observation (such as pain associated with a scar). Therefore, as the Veteran has two scars that are painful, a rating of 10 percent is warranted. A higher rating is not warranted as that would require the presence of three or more painful scars. 38 C.F.R. § 4.118, DC 7804 (2019). 3. Entitlement to an initial rating in excess of 50 percent for migraine headaches is denied. The Veteran asserts that a higher rating is warranted for his service-connected migraine headaches. However, a 50 percent disability rating is the maximum schedular evaluation available for migraine headaches. See 38 C.F.R. § 4.124a, DC 8100 (2019). As there is no legal basis upon which to award a higher schedular rating for migraine headaches, the Veteran’s claim for such benefit is without legal merit. Thus, the claim for a disability rating in excess of 50 percent for migraine headaches is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to initial ratings in excess of 10 percent for right and left foot hallux valgus are remanded. The Veteran’s October 2020 testimony suggests that the symptoms associated with his right and left foot hallux valgus have worsened since his last VA examination in December 2016. Consequently, the Board finds that a new examination is warranted. 2. Entitlement to service connection for a back disability, including as secondary to service-connected disabilities is remanded. The Veteran asserts that his back disability is related to service or aggravated by his service-connected hallux valgus of the right and left foot. An August 1973 STR notes an incident of back pain after the Veteran was rear-ended in a vehicle. Post-service, an April 2012 x-ray revealed mild degenerative joint disease of the lumbar spine. In August 2012, the Veteran’s podiatrist stated in a treatment note that the Veteran’s back pain was more likely than not secondary to his foot deformities. Finally, a September 2012 VA treatment record notes that the Veteran endorsed low back pain for 20 plus years. The Veteran has not been afforded a VA examination to determine the etiology of his back disability. Based on the foregoing evidence, the Board finds that an examination is warranted. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his current sleep apnea is related to his erratic sleep schedule while serving aboard the ship on active duty. See, e.g., October 2020 Board Hearing Transcript. VA treatment records reflect a diagnosis of severe obstructive sleep apnea per sleep study in October 2012. The Veteran has not been afforded a VA examination to address the etiology of his sleep apnea. Based on the foregoing evidence, the Board finds that an examination is warranted. 4. Entitlement to TDIU and SMC are remanded As the remand of the above claims could affect the claims for a TDIU and SMC, the claims are inextricably intertwined and a decision on the latter claims at this time would be premature. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA foot examination to assess the severity of the service-connected bilateral hallux valgus. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 3. Then, schedule the Veteran for a VA spine examination to determine the nature and etiology of his claimed back disability. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination of the Veteran and review of the record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently present back disability had its onset during the Veteran’s active service, or is otherwise related to such service. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently present back disability was caused or aggravated by his service-connected hallux valgus of the right and left great toes, to include altered gait and/or body mechanics resulting from such. The rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA spine examination to determine the nature and etiology of his claimed sleep apnea. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s severe obstructive sleep apnea had its onset in service, or is otherwise related to such service. The rationale for all opinions expressed must be provided. 5. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted 6. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.