Citation Nr: 21062518 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-28 835 DATE: October 7, 2021 REMANDED Entitlement to service connection for a pulmonary disorder, to include asthma, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1969 to February 1973. A review of the record reveals that on the May 2017 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge of the Board. However, in a July 2021 correspondence, the Veteran withdrew this hearing request. 1. Pulmonary disorder The Veteran is seeking entitlement to service connection for a pulmonary disorder, to include asthma, that he believes is due to his military service. Specifically, he states that his pulmonary disorder is due to exposure to asbestos and jet fuel toxins. See July 2016 Notice of Disagreement. The Veteran was provided a VA examination in July 2015 for this disorder. At that time, he was diagnosed with asthma. The examiner determined it was less likely than not the asthma is related to military service as the Veteran was not treated for asthma while in service, and that he did not have any respiratory complaints while in service. The Board finds this opinion is inadequate as the examiner impermissibly relied on a lack of in-service treatment and/ or diagnosis in rendering the opinion. Further, since the July 2015 examination, the Veteran has raised the specific arguments pertaining to asbestos exposure and exposure jet fuel toxins, which were not addressed in the July 2015 VA examination report. In support of these contentions, he has provided internet articles printed in September 2020 pertaining to the asbestos on the USS America and a public health statement article on jet fuel toxins. Given that the examiner did not consider these contentions, remand is warranted to discuss these contentions as well as the supporting internet articles. With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. This has not been accomplished; therefore, remand is warranted. Consequently, the Board finds a remand is necessary for a development, a new examination and opinion. 2. Bilateral hearing loss The Veteran is seeking entitlement to service connection for bilateral hearing loss that he believes is due to his military service. Specifically, he argues that his hearing loss is directly related to noise exposure from jet aircrafts. See November 2015, notice of disagreement. In a July 2015 VA Audiological Examination report, the examiner diagnosed the Veteran with bilateral hearing loss for VA purposes. However, the examiner concluded it was less likely than not the currently diagnosed bilateral hearing loss is due to his military service as he did not have hearing loss at service separation. The Board finds this opinion inadequate as the examiner's rationale is based solely on the lack of an inservice diagnosis. A subsequent July 2015 VA audiology note included a finding that the Veteran's military occupational specialty of aviation electronics technician had a moderate probability of noise exposure, and there was no evidence of post-service occupational or recreational noise exposure. However, an etiological opinion was not provided. Thereafter, the Veteran provided a private audiological examination in support of this claim dated in November 2015. The private audiologist stated that it was at least as likely as not the current hearing loss is a direct result of the noise exposure the Veteran experienced during service. However, a rationale was not provided, which also renders this opinion inadequate. As such, a remand is required to determine the nature and etiology of the Veteran's diagnosed bilateral hearing loss. 3. Sleep apnea The record reflects the Veteran has a current diagnosis of sleep apnea. See VA Treatment Record Problem List. He stated that it is his belief that he suffers from sleep apnea due to his exposure to asbestos in service and due to or aggravated by his pulmonary issues. See July 2016 Notice of Disagreement. However, the Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the diangoed sleep apnea is due to the Veteran's military service, to include exposure to asbestos, or is due to or aggravated by a pulmonary disorder. As such, a remand is required. 4. Diabetes mellitus The Veteran is seeking entitlement to service connection for diabetes mellitus that he believes is due to his military service, to include as due to exposure to herbicides while stationed onboard the USS America as part of the earlier warning squadron. See Military Personnel Record. The Veteran's military personnel records also indicate the USS America served in the contiguous waterways of Vietnam; however, specific coordinates are not provided. Id. The record reflects that the Veteran has a diagnosis of diabetes mellitus. See July 2015 VA Examination. The Board notes the Veteran was scheduled for a VA examination in July 2015, but there is no accompanying opinion as to the nature and etiology of the diagnosed disorder. Thus, this opinion is inadequate for rating purposes. Furthermore, in light of the decision issued by the United States Court of Appeals for the Federal Circuit in Procopio v. Wilkie, 913 F.3d. 1371 (2019) and the enactment of 38 U.S.C. § 1116A it is unclear whether the Veteran served within the 12 nautical mile territorial sea of the Republic of Vietnam and thus the presumption of service connection for veterans who served offshore of the Republic of Vietnam would be applicable. In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that 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. A veteran who served in the 12 nautical mile territorial sea of the Republic of Vietnam is entitled to presumptive service connection for exposure to herbicide agents (Agent Orange) under 38 U.S.C. § 1116, so long as they meet the sections other requirements. See Procopio v. Wilkie, 913 F.3d. 1371 (2019) and see also Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966 ). Thus, in light of Procopio and the Blue Water Act, a remand is necessary to determine if the Veteran had any service on any ships in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam during his service. The matters are REMANDED for the following action: 1. Obtain any additional, relevant private or VA treatment records not presently associated with the claims file. 2. Contact the National Personnel Records Center and any other appropriate repository of records, and request that they provide any available information about the types of hazardous chemicals that the Veteran would have been exposed to, including asbestos and jet fuel toxins, while stationed onboard the USS America. If the service department is unable to furnish such records, ask the service department to identify any other resource for such information. Document all efforts to obtain this information. Then, conduct any additional development necessary to verify the Veteran's statements of asbestos exposure. If there are no records to confirm or deny the Veteran's depiction of the events, the record repository must provide written documentation to the RO to that effect. If unable to verify the Veteran's statements, the RO must prepare a formal memorandum to this effect, which outlines the steps they took to verify the alleged visit and responses received, to specifically include responses from VA Personnel Information Exchange System (PIES). The Veteran and his representative must be notified of this finding and be given an opportunity to respond. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed pulmonary disorders, to include asthma. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions relating to his diagnosis of and treatment for any symptoms of pulmonary disorders, both in service and thereafter. All necessary special studies or tests must be accomplished. THE MEDICAL TREATISE LITERATURE PROVIDED BY THE VETERAN AND HIS REPRESENTATIVE IN RENDERING THE BELOW REQUESTED OPINIONS SHOULD ALSO BE CONSIDERED. The examiner is asked to determine whether it at least as likely as not (a 50 percent or greater probability) that the condition had its onset during service or is otherwise related to active service, to include any exposure to asbestos or jet fuel toxins therein? 4. Schedule the Veteran for a VA audiological examination to determine the etiology of his bilateral hearing loss disability. The examiner must obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. The examiner must also review the claims file in its entirety. The examiner is directed to accept that the Veteran's military occupational specificality resulted in a moderate probability of noise exposure during service. After examining the Veteran and reviewing the entire record, the examiner is asked to determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's bilateral hearing loss disability began during or is etiologically related to his military service? Why or why not? A complete rationale is required. If the examiner is unable to provide any opinion without speculation, he or she must explain why this is so. The examiner is informed that any opinion based solely on the lack of evidence of hearing loss during or at separation from service is inadequate. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the currently diagnosed sleep apnea. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions relating to his diagnosis of and treatment for any symptoms of sleep apnea, both in service and thereafter. All necessary special studies or tests must be accomplished. THE MEDICAL TREATISE LITERATURE PROVIDED BY THE VETERAN AND HIS REPRESENTATIVE IN RENDERING THE BELOW REQUESTED OPINIONS SHOULD ALSO BE CONSIDERED. The examiner is asked to address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the condition had its onset during service or is otherwise related to active service, to include any exposure to asbestos or jet fuel toxins therein? (b.) Whether it is at least as likely as not that the sleep apnea was caused by a pulmonary disorder, yes or no? (c.) Is it at least as likely as not that the Veteran's sleep apnea underwent any incremental increase in disability, regardless of its permanence (aggravation) due to: 1. the pulmonary disorder, yes or no? 2. medicine taken for his pulmonary disorder, if applicable, yes or no? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. 6. Make all appropriate efforts, to include contacting all appropriate official sources, 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 United States Navy while onboard the USS America. (a.) In the event VBA determines the Veteran's service entitles him to the provisions of presumptive service connection, then no further development is warranted as diabetes mellitus is a presumptive condition. 38 C.F.R. § 3.309. (b.) If VBA is unable to determine the Veteran served with in 12 nautical miles from the shores of Vietnam, then obtain a medical opinion from a qualified medical professional. The Veteran's entire claims file, to include a copy of this REMAND, must be provided to the VA examiner. (c.) All tests and studies deemed appropriate by the examiner must be conducted. After performing any required tests, if necessary, and reviewing the entire record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) the diagnosed diabetes is related to the Veteran's active service. (Continued on the next page) Any opinion expressed by VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 7. The AOJ must review the examination reports and opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.