Citation Nr: 21065502 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-66 490 DATE: October 26, 2021 REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for a heart disability, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for head shakes is remanded. Entitlement to service connection for nerve damage is remanded. Entitlement to nonservice-connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1968 to January 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. As pertinent to the Veteran's service connection claim for a heart disability, although the Veteran submitted a claim for service connection for heart valve and another service connection claim for heart problems, the Board has recharacterized the issue as a claim for a heart disability, generally. The Veteran cannot be required to know whether the symptoms he is claiming service connection for are attributable to a specific heart diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. A July 2012 rating decision granted service connection for bilateral hearing loss disability and assigned a noncompensable rating from May 7, 2011. To ensure that VA has met its duty to assist, a remand is necessary to decide the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). At his July 2021 Board hearing, the Veteran testified that his condition has worsened since his last VA examination in September 2011, noting that he has lost about 30 percent more hearing. His testimony is competent and credible. Therefore, reexamination is necessary. 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for diabetes mellitus, type II is remanded. The Veteran contends that he was in Brown Waters off the coast of Vietnam. See Hearing Transcript (July 2021). He further provided that he was on gunfire support, search and rescue, and could see the jungle from the ship. Id. He stated that he and along with his fellow soldiers sat there for 30 and 40 days at a time, and when Agent Orange was dumped on that vegetation, it went right over top of them. Id. In a November 2011 statement, the Veteran also reported that he went ashore, was exposed to asbestos in engine room, chemicals and mustard gas. See VA 21-4138 Statement In Support of Claim (November 2011). He also previously submitted articles showing locations of USS Huntington during Vietnam Era. See Correspondence (November 2011). The Veteran has a diagnosis of diabetes mellitus, which is listed as a disease associated with exposure to certain herbicide agents in 38 C.F.R. § 3.309(e). With regard to the Veteran's reported in-service exposures as the cause of his diabetes, because diabetes is listed as a disease associated with exposure to certain herbicide agents in 38 C.F.R. § 3.309(e), the Veteran can rely on the presumptive provisions of 38 C.F.R. § 3.307(a)(6) to substantiate his claim. Thus, if exposure is established, the presumptive provisions for the diseases listed in 38 C.F.R. § 3.309(e), including diabetes, become applicable. Even if presumptive provisions are not for application, service connection may still be established on direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). In this case, the Veteran's service personnel records (SPRs) show that he served aboard the USS Huntington. See Military Personnel Record (June 2014). The Veteran's military occupational specialty (MOS) included interior communications electrician. Certificate of Release or Discharge From Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867) (June 2014). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38C.F.R. §3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38U.S.C. §101(29)(A). Service in the Republic of Vietnam is "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38C.F.R. §3.307(a)(6)(iii). The phrase "service in the Republic of Vietnam" includes the 12-nautical-mile territorial waters of the Republic of Vietnam. 38 U.S.C. § 1116A(d). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) expanded the eligibility for presumptive service connection due to herbicide exposure during the Vietnam era to all veterans who served on ships in the territorial sea, within 12 nautical miles, of the Republic of Vietnam. Procopio v. Wilkie, 913 F.3d 1370 (Fed. Cir. 2019). The Federal Circuit determined that the phrase "service in the Republic of Vietnam" under 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation. Id. Given the above, the AOJ must attempt to corroborate the Veteran's claimed exposure. On remand, the AOJ should conduct all necessary development to verify the Veteran's alleged herbicide exposure, to include whether the vessels, on which the Veteran served, to include USS Huntington, operated in the territorial seas of the Republic of Vietnam during the Veteran's service. 3. Entitlement to service connection for a heart disability is remanded. The Veteran contends that service connection is warranted for his heart disability due to his exposure to herbicide agents, asbestos, chemicals and mustard gas while serving on board a U.S. Navy ship during the Vietnam era. See VA 21-4138 Statement In Support of Claim (November 2011); Hearing Transcript (July 2021). VA treatment records show that the Veteran underwent a heart valve replacement and was seeing a private cardiologist in November 2015. However, records of this treatment have not been associated with the Veteran's file. A remand is required to allow VA to obtain authorization and request all the outstanding treatment records from these private providers as well as any other private providers the Veteran identifies. A remand is also necessary to obtain a medical examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the Veteran's claimed heart disability, the available evidence shows that he has been diagnosed with congestive heart failure (CHF). However, CHF is not on the list of diseases associated with herbicide exposure and Note 3 to 38 C.F.R. § 3.309(e) provides that ischemic heart disease, which is on the list of such diseases, does not include CHF. It is noted that even where a disease is not presumptively associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e), service connection may be established with proof of direct causation. Combee, 34 F.3d 1039. In this case, service treatment records (STRs) show the Veteran's reports of chest pain with the impression of costochondritis in July 1969. See STR-Medical (December 1972). His December 1971 separation physical shows normal heart findings. Id. Therefore, as no VA medical opinion has yet been obtained on the question of whether the Veteran's current heart disability related to the documented in-service reports of chest pain in July 1969 remand is required. Additionally, if exposure to herbicide agents is established by virtue of the remand directives set forth below, the Board finds that an opinion addressing whether any of the Veteran's heart diagnoses are at least as likely as not caused by or the result of exposure to herbicide agents, asbestos, chemical agents or mustard gas should also be obtained. 4. Entitlement to service connection for migraine headaches is remanded. 5. Entitlement to service connection for head shakes is remanded 6. Entitlement to service connection for nerve damage is remanded. Veteran has provided several contentions regarding service connection for his head shakes, nerve damage, and headaches. First, he contends that he injured his head in service, resulting in headaches and nerve damage. See VA 21-526EZ, Fully Developed Claim (Compensation) (February 2019). Second, he contends that these are secondary to his service-connected traumatic brain injury (TBI). See Hearing Transcript (July 2021). Third, he alleges that these are secondary to diabetes. Id. The Veteran was assessed with essential tremor in May 2011. A February 2012 and later a November 2019 VA treatment note show the Veteran's reports of head shaking, which was noted to result in the Veteran losing balance and necessitating use of cane and walker for assistance. He also has a diagnosis of migraine headaches based on a May 2019 VA examination. STRs document head trauma, resulting in syncopal episode, the Veteran seeing spots in his eyes and headaches in February 1970. On TBI examination in May 2019, the examiner noted the Veteran's symptoms of TBI based on the Veteran's reports to include headaches and tremors. The examination listed residuals of TBI to include migraine headaches. Id. However, a separate VA examination for headaches was also obtained in June 2019, where the Veteran described his symptoms as right side with dizziness and nausea. His non-headache symptoms associated with headaches included nausea, vomiting, sensitivity to light, sensitivity to sound and sensory changes. Id. The above medical evidence suggests that symptoms attributable to TBI diagnosis potentially overlap with those attributable to headaches and tremors. Thus, on remand, it should be determined whether any current headaches, head shakes and any nerve damage is/are a separate and distinct disability for which service connection can be granted or whether they are symptoms of the service-connected TBI. As such, the Board finds that remand is warranted for an appropriate VA examination. Moreover, given that STRs, as noted above, document the Veteran's reports of headaches after a head injury, if the Veteran is found to have a distinct diagnosis from TBI of migraine headaches and/or nerve damage, an opinion should be obtained as to the etiology of these headaches and/or nerve damage, and whether such at least as likely as not had their onset in service, to include the documented February 1970 reports of headaches. 7. Entitlement to nonservice-connected pension benefits is remanded. The Veteran claims entitlement to nonservice-connected pension benefits, and contends that such is warranted as a result of his nonservice-connected "open heart." See VA 21-526 Veterans Application for Compensation or Pension (May 2011). As indicated above, the Veteran's claim for service connection for a heart disability is being remanded herein. Thus, the claim for nonservice-connected pension is inextricably intertwined with the claim for service connection for a heart disability remanded herein. Therefore, the Board must defer consideration of this matter at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Moreover, the Veteran submitted his pension claim in May 2011. In July 2012, the RO denied entitlement to pension. In the November 2017 statement of the case, the RO denied the claim on the basis that the Veteran's net worth was a bar to benefits. The threshold issue is whether the Veteran's net worth is a bar to his receiving pension benefits. In evaluating net worth it is necessary to determine whether the claimant's financial resources are sufficient to meet his basic needs without assistance from VA. It is VA policy to deny pension for excessive net worth if a claimant's assets are sufficiently large that the claimant could live off these assets for a reasonable period of time. Essentially, pension entitlement is based on need and that need does not exist if a claimant's estate is of such size that he could use it for living expenses. In this case, effective October 18, 2018, VA amended some of its regulations regarding net worth, asset transfers, and income exclusion as they pertain to nonservice-connected pensions. See 83 Fed. Reg. 47246 (Sep. 18, 2018). Relevant to the present case are revisions to 38 C.F.R. § 3.274 (a), which now dictates the net worth limit. 38 C.F.R. § 3.274 (a). The final rule for those amendments to the VA regulations makes clear that, for claims that were pending as of October 18, 2018, such as the present claim, an administrative determination will still be required under previous provisions when a claimant's net worth exceeds the net worth limit now set forth in 38 C.F.R. § 3.274(a). See 83 Fed. Reg. 47264-65. Accordingly, additional information and calculation is required before the Board can issue a decision on the instant matter. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA health care providers seen for his heart disability, to include for aortic valve replacement. If he provides the requested release forms, make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from June 2021 to the present. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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. 4. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents AND to include asbestos, mustard gas and other chemical agents, through the appropriate sources as appropriate for each ship the Veteran is determined to have been present aboard during Vietnam War service, to include USS Huntington, to verify whether the Veteran's service included any presence within the 12-nautical mile territorial sea of the Republic of Vietnam. 5. IF HERBICIDE EXPOSURE IS CONCEDED BY VA, if necessary, obtain a VA medical opinion whether any of the Veteran's diagnosed heart conditions (other than ischemic heart disease, if it is diagnosed) are related to that exposure. It is not sufficient for the examiner to provide a negative opinion based solely on whether the conditions are not included on the list of diseases and conditions presumptively associated with herbicide agent exposure. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. If service connection cannot be granted based on any herbicide exposure, then IF ASBESTOS EXPOSURE IS CONCEDED BY VA, obtain a VA medical opinion to answer whether the Veteran's diabetes mellitus and any of the Veteran's diagnosed heart conditions are related to that exposure. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 7. ONLY IF HERBICIDE EXPOSURE IS NOT CONCEDED BY VA, obtain a VA medical opinion from an appropriate medical professional to determine the nature and etiology of his heart disability. (a.) Address whether it at least as likely as not (50 percent or greater probability) (a) had its onset in service, or (b) is otherwise etiologically related to in-service injury or disease to include documented in-service chest pain in July 1969. (b.) The opinion MUST reflect consideration of the STRs and discuss what, if any, relationship exists between those in-service reports and the subsequent development of heart disability, now diagnosed as CHF, if any. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 8. Schedule the Veteran for a VA examination to determine whether his reported head shakes, migraine headaches and nerve damage are a symptom or manifestation of his service-connected TBI or are due to a separate and distinct disability. The examiner must review the claims file in conjunction with the examination. Any indicated tests should be conducted. Based upon a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a.) Identify all nerve damage disorders, head shakes and/or headache disorders found to be present, if any, that are separate and distinct from the service-connected TBI. (b.) For each diagnosed disorder found that is separate and distinct from the service-connected TBI, offer an opinion as to whether it is at least as likely as not that it is (1) proximately due to service-connected TBI, or (2) aggravated beyond its natural progression by service-connected TBI. The clinician must provide a rationale that deals with causation and aggravation as independent concepts. (c.) IF, AND ONLY IF, the Veteran's migraine headache diagnosis and/or nerve damage is determined to be separate and distinct diagnosis, and not only a symptom of his service-connected TBI, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any migraine headache and/or nerve damage. The examiner must answer whether the diagnosed migraine headache is at least as likely as not related to an in-service injury, event, or disease, to include the February 1970 documented report of headache, or, if conceded, any herbicide, asbestos or other chemical agent exposure. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 9. Contact the Veteran and request that he submit net worth, income and expense documentation from the date of claim to the present, to specifically include information relevant to his assets. 10. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated, to include based the regulations in effect October 18, 2018. 11. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 12. Readjudicate the claims. D. MARTZ AMES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.