Citation Nr: 21009182 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-13 945 DATE: February 19, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a right knee disability 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 diabetes mellitus type II, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1967 to March 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Board notes that in the March 2018 Form 9, the Veteran selected to only appeal the issues of an increased rating for a right knee disability, service connection for diabetes, and service connection for a heart disability. See 3/13/2018 Form 9, box 8A. Therefore, the claim for an increased rating for bilateral hearing loss is no longer on appeal before the Board. 1. Entitlement to an initial rating in excess of 10 percent for a right knee disability. The Veteran seeks an increased rating for his service-connected right knee disability. See 12/15/2014 VA Form 21-526EZ. Specifically, the Veteran contends that his service-connected disabilities have worsened. See 1/8/2021 Hearing Transcript, at page 2. In this matter, a remand is necessary to obtain competent evidence regarding the current severity of the Veteran service-connected right knee disability. First, evidence recently associated with the claims file suggest that his service-connected right knee disability has worsened since his most recent VA examination. Specifically, the Veteran testified in early 2021 that he experiences difficulty going up and down the stairs, pain when seated, and a very sharp pain going down the stairs. Additionally, he experiences problems getting up from a seated position and right knee “popping,” instability, and “giving out.” Further, walking up the stairs and the weather cause flare-ups. Id. at pages 3 and 4. These findings were not noted on the most recent September 2015 VA examination. A veteran is entitled to a new VA examination where there is evidence that the Veteran’s disabilities have worsened since the last examination. 38 C.F.R. § 3.327(a). As the evidence suggests that the Veteran’s service-connected right knee disability has worsened since his last VA examination in September 2015, the Board finds that the evidence of record is insufficient to decide the claim and the Veteran should have been provided new VA examination. The Veteran’s representative also made this argument at the 2021 hearing. As such, the Board finds that a remand is necessary to afford the Veteran a new VA examination to adequately assess the severity of his service-connected right knee disability.   2. Entitlement to service connection for a heart disability, to include as due to herbicide agent exposure. 3. Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide agent exposure. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran contends service connection for a heart disability and diabetes due to herbicide agent exposure. Specifically, the Veteran testified that he went to the DMZ or in that vicinity on numerous occasions. Additionally, he testified that although he was not assigned to a unit that was in the DMZ, he was on a mobile contact team that went up to the DMZ to repair vehicles. Additionally, he testified that he was either at Camp McIntyre or Camp Brittany, which were right across the road from each other, and both were very close to the DMZ. See 1/8/2021 Hearing Transcript, at pages 6 and 7; see also 12/6/2017 Correspondence.   The Board finds the Veteran to be credible in describing being at either Camp McIntyre or Camp Brittin, as it is consistent with other evidence of record as well as his military occupational specialty. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see Miller v. Wilkie, 32 Vet. App. 249, 254 (2020) (stating that the duty to assist also includes addressing a veteran’s lay reports of symptoms). A veteran who, during active military, naval, or air service, served between September 1, 1967 and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicide agents are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116B (Supp. 2019); 38 C.F.R. § 3.307(a)(6)(iv). In this case, the record reflects that the Veteran served in Korea during the applicable time period set forth by regulations. See 2/23/2015 Military Personnel Record, at page 19. His military occupational specialty during this period was armament repair technician. See 4/22/2013 Certificate of Release or Discharge from Active Duty. The issues of entitlement to service connection for diabetes and a heart disability are remanded to correct a duty to assist error. In April 2015, the AOJ notified the Veteran about providing information regarding his alleged herbicide exposure in the DMZ. See 4/27/2015 Correspondence. In June 2015, the AOJ issued a Formal Finding showing that VA lacked the information the Army and Joint Services Records Research Center (JSRRC) (as of May 2020 – the VBA Records Research Center (RRC)) required to verify herbicide exposure. See 6/4/2015 Correspondence. Subsequently, in November 2017 the AOJ once again notified the Veteran about providing information regarding his alleged herbicide exposure in Korea. See 11/3/2017 Subsequent Development Letter. In January 2018, the AOJ issued another a Formal Finding stating that VA lacked the information the RRC required to verify herbicide exposure. See 1/3/2018 VA Memo. However, as mentioned above, the Veteran’s military personnel records showed he served in Korea from May 1969 to June 1970. The RRC has not been contacted to verify possible herbicide exposure. VA has a duty to search for records that would assist a Veteran in the development of his claim, and for which the Veteran has provided the Secretary information sufficient to locate such records, to include making as many requests as are necessary and ending only when such a search would become "futile." In Gagne v. McDonald, the Court of Appeals for Veterans Claims (CAVC) defined futile, under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 , as "a search where it is apparent that the sought-after records are either not in existence or not in the possession of the record's custodian." 27 Vet. App. 397, 403 (2015). The CAVC held that "the duty to assist required VA to submit multiple 60-day record searches" to the Joint Services Records Research Center (JSRRC) and that "the 13-month period in [that] case" was not "unreasonably long" where the appellant provided information regarding his stressor. Id. at 404. The Board finds the facts in this case to be analogous to those in Gagne in that the VA's statutory duty to assist is not limited by the electronic portal of the JSRRC/RRC. As noted above, the record shows that the Veteran served approximately 13 months in Korea. Accordingly, further development is necessary to verify possible herbicide exposure in or near the Korean DMZ in an area in which herbicide agents are known to have been applied during that period. As such, on remand, the RO is submit as many request as needed to the RRC to make this determination. These matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment records and associate them with the claims file.   2. After completion of step # 1, schedule the Veteran for an orthopedic examination with an appropriate clinician concerning the level of impairment of the right knee. The clinician is to review the virtual file, including a copy of this Remand. Range of motion (active motion, passive motion, and pain with weight-bearing and without weight-bearing) should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee disabilities, and how he characterizes the additional functional loss during a flare-up and with repeated use over time. If the Veteran describes experiencing flare ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up, range of motion for flexion is additionally limited to 30 degrees. Please explain why or why not. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). **The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time.** 3. After completion of step # 1, attempt to verify the claimed exposure to herbicide agents in or near the DMZ in Camp McIntyre or Camp Brittany through the appropriate entities, such as the RRC. If needed, contact the Veteran and request that he provide details regarding his alleged in-service herbicide exposure near the Camp McIntyre and Camp Brittin in Vietnam. Send sequential requests to the RRC for the entire period provided by the Veteran in an effort to verify the Veteran’s exposure to herbicide agents consistent with his period of service while stationed in Korea (May 1969 to June 1970). The RRC is to be provided with any necessary documentation, to include any relevant service records as well as any statements submitted by the Veteran detailing any duties that required him to be at or near the base perimeters. If necessary, make sequential requests to the RRC or other repository to cover the entire time period provided by the Veteran. All requests and responses received should be associated with the claims file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the development conducted). **For the limited purposes of this remand, the Board has found the Veteran credible to describe his in-service travel in close proximity to the DMZ.** See 1/8/2021 Hearing Transcript, at pages 6 and 7; see also 5/24/2016 Correspondence. Note: A full credibility determination will be made at a later date, if needed, once additional evidence has been added to the claims file.** (CONTINUED ON THE NEXT PAGE)   4. Based upon the evidence obtained in response to directive # 3, make a finding to be included in the record whether the Veteran was exposed to herbicide agents in service (either directly or presumptively). If the Veteran was not found to be exposed to herbicide agents, issue a formal finding of fact to that effect and associate it with the claims file. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.