Citation Nr: 21070847 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-12 252 DATE: November 26, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for diabetes mellitus, type II, as due to herbicide exposure, is remanded. Entitlement to service connection for ischemic heart disease, as due to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as due to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, as due to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, as due to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, as due to herbicide exposure, is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1974 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the claims for additional development. The claims have now been returned to the Board for appellate review. As a preliminary matter, the Board notes that October 2018 remand included a claim for service connection for a left leg condition. While the claim was still in remand status, the Veteran filed a Supplemental claim for his left leg condition on September 9, 2020, thereby opting-in that claim into VA's modernized adjudication system, under the Appeals Modernization Act (known as the AMA). The RO adjudicated and denied the claim in an October 15, 2020 rating decision. Then, on December 4, 2020, the Veteran filed a VA form 10182 Notice of Disagreement (NOD) requested a hearing. As such, the issue of service connection for a left leg condition will be addressed in a separate Board decision. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The record reflects that Veteran contends five claimed in service stressors have caused his PTSD. First, in his June 2012 statement in support of his claim for PTSD, the Veteran said that he experienced nightmares and sleep impairments during his tour to the Republic of Vietnam and that he would always hear "this is not a drill" many times during his ship's voyage. Second, he recalls when a seaman was killed in Guam. In a March 2015 statement, the Veteran said that in August 1975 the seaman was killed. In a March 2020 statement, the Veterans said that the seaman was run over by a car and killed in Guam on or about October 4, 1974, and was assigned to the U.S.S. Okinawa. Third, he stated that on October 23, 1975, a soldier, name unknown, fell dead in the chow line while waiting to get chow and he had to help put him in the freezer and he was kept there for months. Fourth, in March 2020, he said that the injuries from a fall from his bunk while aboard ship ruined his career and left him with intrusive symptoms to this day, including recurrent involuntary and intrusive memories of death, nightmares, and breaking out in sweats. In a May 2020 statement, the Veteran said that being thrown off the bunk started the onset of his depression, nightmares and other symptoms. Fifth, an August 2021 internal record notes that the Veteran contends that there was a collision with his ship and a nuclear submarine on January 1, 1975, damaging the ship's propeller. The record notes that the request was closed without research. The evidence also demonstrates some claimed post service incidents, including an October 2008 carbon monoxide poisoning. First, the Board notes that the record reflects that the research into the verification of the claimed in-service stressors appears to be incomplete. Hence, remand is warranted to attempt to verify the claimed in service stressor events. Next, the Board notes that the October 2018 Board remand directed the RO to arrange to provide the Veteran with a VA examination in order to determine the nature and etiology of the Veteran's acquired psychiatric disorder to include PTSD and depression. Stegall, 11 Vet. App. at 271. The Veteran underwent a VA examination in February 2019 at which time he was diagnosed with PTSD and the examiner noted that depression is a symptom of the condition, however, again, an opinion regarding the etiology of the condition is not of record. Hence, a remand is warranted to obtain an opinion regarding the nature and etiology of the Veteran's acquired psychiatric disorder. 2. Entitlement to service connection for diabetes mellitus is remanded. 3. Entitlement to service connection for ischemic heart disease is remanded. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 6. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. 7. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. These issues on appeal return to the Board from an August 2019 Court of Appeals for Veteran's Claims (Court) Order that granted a Joint Motion for Partial Remand (JMPR) and subsequent January and May 2020 Board remands to develop whether the Veteran was exposed to herbicides pursuant to the Blue Water Navy Act. While the Veteran primarily alleges that these claimed disorders are related to in-service herbicide exposure, the medical evidence has raised additional theories of entitlement. Specifically, the Veteran submitted a July 2020 private medical opinion indicating that his diabetes mellitus had its onset within a year of his discharge from the Navy and that his musculoskeletal conditions (which include the left leg condition that will be addressed in a separate appeal) contributed to or accelerated his diabetes mellitus. The private examiner noted that the Veteran's peripheral neuropathy is related to his diabetes and further opined that the Veteran's diabetes mellitus and "presumptive heart disease" (which would include hypertension, addressed in a separate appeal) contributed to his ischemic heart disease. The private medical opinions are inadequate, however, as they are not supported by medical rationale. Nonetheless, the medical evidence of current diagnoses and possible nexus have met the low threshold to trigger VA's duty to assist by providing VA examinations for these claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, given that the outcome of the other appeal for the Veteran's left leg condition and hypertension may have bearing on the present claims, a remand is appropriate for these issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991) Further, the Board notes that the RO completed research in an attempt to verify the Veteran's claim of herbicide exposure due to service in the Republic of Vietnam, which revealed that the Veteran's ship, the U.S.S. Bagley, was not located in the official waters of Vietnam during the Veteran's assignment to the vessel, from November 19, 1974, until the end of the Vietnam war on May 7, 1975. Thus, he is not presumed to have been exposed to herbicides due to service during the Vietnam war. The RO's research, however, revealed that the U.S.S. Bagley later sailed to Far East ports, to include Guam and Subic Bay later in 1975, early 1976, and in 1977. Given that VA has been unable to confirm the Veteran's claimed herbicide exposure during a period that would allow for presumptive service connection, the RO should invite the Veteran to submit evidence or statements regarding any specific exposures that may have occurred following the end of the Vietnam war. 8. Entitlement to individual unemployability is remanded. A claim for a total disability based on individual unemployability (TDIU) may be part of a claim either expressly raised by a Veteran or reasonably suggested by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The VA received the Veteran's application for individual unemployability based on PTSD and a heart condition in January 2017. The Board finds that the matter is inextricably intertwined with the issues on appeal. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associate those records with the claims file. 2. Invite the Veteran to provide evidence of or identify specific incidents of herbicide exposure, to include any that occurred following the end of the Vietnam war, on May 7, 1975. Undertake appropriate action with regard to any response. 3. Contact the appropriate research specialist and any other appropriate sources, to verify the Veteran's stressors including: a) A Seaman's fatality in Guam; b) A Soldier falling dead in the chew; and c) A collision with a nuclear submarine on January 1; 1975 damaging the ships propeller. The Veteran's additional in-service stressors include: d) Hearing "this is not a drill" on the ship; and e) The fall out of the bunk bed. The RO should also follow up on any additional action suggested by each appropriate source contacted, including obtaining the necessary signatures as required in the research process. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. After the above development is complete, schedule the Veteran for a VA examination in order to determine the nature and etiology of the Veteran's acquired psychiatric disorder. The examiner must note review of the Veteran's claim file and provide an opinion as to whether the Veteran's any diagnosed acquired psychiatric condition at least as likely as not (a probability of 50 percent or greater) began in or is related to service. 5. Schedule the Veteran for VA examinations with regard to the claimed diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and ischemic heart disease claims. The examiner(s) must note review the Veteran's claim file and provide an opinion as to the following: (a) Whether it is at least as likely as not that the any claimed disorder had its onset in service, within a year of the Veteran's military discharge, or is otherwise related to the Veteran's military service. (b) If a claimed disorder is not found to be related to the Veteran's military service, the examiner is asked, if possible, to identify the likely etiology. In providing the requested opinions, the examiner must consider and discuss the lay statements regarding the onset and progression of the claimed disorders, as well as the July 2020 private opinions. The examiner must also consider and reconcile any conflicting medical evidence or opinions of record. A complete rationale for all opinions reached must be provided. 6. When the development sought above is completed, re-adjudicate the claim of entitlement to individual unemployability. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, Associate 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.