Citation Nr: 21013388 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-23 020 DATE: March 9, 2021 REMANDED Entitlement to service connection for a bilateral eye disability, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for a bilateral kidney disability, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus or service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for muscle spasms, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. Entitlement to service connection for a bilateral lung disability, to include as secondary to asbestos exposure, is remanded.   REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1962 to September 1969, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2019 video-conference hearing. These matters were previously before the Board in January and May 2020. 1. Entitlement to service connection for a bilateral eye disability, to include as secondary to diabetes mellitus, is remanded. 2. Entitlement to service connection for a bilateral kidney disability, to include as secondary to diabetes mellitus, is remanded. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus or service-connected PTSD, is remanded. 4. Entitlement to service connection for muscle spasms, to include as secondary to diabetes mellitus, is remanded. The Veteran’s service personnel records show he was stationed aboard the USS Henry W. Tucker from March 1968 to September 1969. Deck logs show that the USS Henry W. Tucker docked in the Republic of Vietnam during the Vietnam War. See April 1969 deck log (noting the ship anchored in Da Nang harbor); see also Blue Water Navy Deck Log Report (showing the USS Henry W. Tucker was within 12 nautical miles offshore of Vietnam in August and September 1968, as well as January and February 1969). Hence, the Veteran was stationed aboard the USS Henry W. Tucker when it was anchored in Vietnam and offshore of Vietnam. Based on the foregoing, and in light of an October 2020 VA Memorandum, it is conceded the Veteran was exposed to herbicide agents (including Agent Orange) during service, and the presumptive provisions regarding veterans exposed to herbicide agents during service are applicable in this case. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). These matters were previously remanded by the Board in May 2020, in part, to determine if the Veteran served within the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam. As indicated above, such is now conceded. As noted in the May 2020 Board Remand, the Veteran testified at the October 2019 hearing that when he filed his claim for several of the disabilities on appeal, including for a bilateral eye disability, erectile dysfunction, and a bilateral kidney disability, that he also intended to file a claim for type 2 diabetes mellitus as the cause of those disabilities. The RO was asked to investigate whether diabetes mellitus type 2 was related to service to determine whether service connection was warranted. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In October 2020, the RO sent the Veteran a letter indicating that if he would like to file a claim for diabetes, he must submit the attached standardized form seeking service connection; there has been no response. Thereafter, in a January 2021 Supplemental Statement of the Case (SSOC), the RO continued to deny the secondary service connection disabilities. The question before the Board is whether the Veteran’s claim for service connection for a bilateral eye disability, erectile dysfunction, and a bilateral kidney disability encompassed a claim for benefits for diabetes as the underlying disability, and if so, whether the Veteran has to file a separate claim for diabetes. This situation was specifically covered in the case of DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In the DeLisio case, the pertinent question was whether a claim for peripheral neuropathy and benefits based on exposure to Agent Orange reasonably encompassed a claim for benefits for diabetes. The Court stated that “[i]f the Secretary determines that the causal disease or disability is, in fact, connected to service, then the claim for benefits for the condition ‘reasonably encompasses’ a claim for that causal disease or disability, such that no additional filing is necessary to initiate a claim for benefits for the causal disease or disability.” DeLisio, 25 Vet. App. at 54 (citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)). The Court held that “when a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease or other disability that may be associated with service, the Secretary generally must investigate the possibility of secondary service connection; and, if that causal disease or disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability…” Id. at 55 (emphasis in original). Pursuant to the holding of DeLisio, the Board finds that the Veteran’s claim for service connection for a bilateral eye disability, erectile dysfunction, and a bilateral kidney disability reasonably encompassed a claim for benefits for type 2 diabetes mellitus. Moreover, the Board finds that the Veteran is not required to separately file a claim for type 2 diabetes mellitus as it is indicated to be a causal disability and is presumptively related to service based on his conceded herbicide exposure. 38 C.F.R. § 3.309(e). However, as the RO Has not adjudicated the merits of service connection for type 2 diabetes mellitus in the first instance, the Board must remand the claim so that this may be accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). Thereafter, the RO should readjudicate the secondary service connection claims in light of the determination regarding the claim for service connection for type 2 diabetes mellitus. 5. Entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, is remanded. The Veteran contends that his diagnosed obstructive sleep apnea is directly related to service and/or secondary to his service-connected PTSD. See October 2019 hearing; see also October 2020 VA sleep apnea examination (diagnosing obstructive sleep apnea). The Veteran was afforded a VA examination and opinion in October 2020. It was opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there was no medical evidence or study to suggest that obstructive sleep apnea has a direct correlation with remote asbestos exposure with no residual pulmonary conditions. The examiner did not address the secondary theory of entitlement. Therefore, this matter must be remanded for an addendum opinion to address the secondary theory of causation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). 6. Entitlement to service connection for a bilateral lung disability is remanded. The Veteran contends that his bilateral lung disability/functional impairment is directly related to service and/or secondary to asbestos exposure during service. See October 2019 hearing. The Veteran was afforded a VA examination and opinion in October 2020. It was indicated that his current symptoms included shortness of breath with heavy activity. The examiner noted that the Veteran has not been diagnosed with a respiratory condition, and he had no history of lung cancer or asbestos-related lung disease. Therefore, it was opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Notably, the examiner did not address the etiology of the Veteran’s respiratory symptomatology, that is, shortness of breath with heavy activity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Accordingly, the Board finds that the October 2020 opinion is not adequate for rating purposes. In addition, the Board also notes that the Veteran has submitted private treatment records, including a November 2020 chest x-ray, finding mild pulmonary hyperexpansion consistent with chronic obstructive pulmonary disease (COPD). The evidence of record therefore does reflect a diagnosed respiratory condition. Hence, the Board finds that this matter must be remanded for a new examination and opinion as to the etiology of the Veteran’s bilateral lung disability/functional impairment, to include the diagnosed COPD. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran’s sleep apnea. After a review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not that the Veteran’s sleep apnea: (a) Is proximately due to his service-connected PTSD; (b) Has been aggravated by his service-connected PTSD. Please note that separate opinions addressing proximate cause and aggravation are needed. Please also note that it is not necessary that the PTSD be service-connected, or even diagnosed, at the time his sleep apnea was incurred, and reliance on this fact in support of a negative opinion will render it inadequate. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the onset and etiology of his bilateral lung disability. The Veteran’s claims file should be reviewed by the examiner. All indicated studies should be performed. Based on review of the record, and interview of the Veteran, the examiner should identify (by medical diagnosis) the Veteran’s respiratory disability(ies). The examiner is asked to specifically review and address the November 2020 private medical chest x-ray finding mild pulmonary hyperexpansion consistent with COPD. The examiner should also provide an opinion whether it is at least as likely as not the disability(ies) had its(their) onset in service or are otherwise related to service, to include as a result of asbestos exposure therein. The examiner should give a reasoned explanation for all opinions provided. If the examiner is unable to provide a medical opinion, then he or she should provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Then, after conduction any additional development deemed necessary, including an examination regarding the etiology of the Veteran’s bilateral eye disability, erectile dysfunction, bilateral kidney disability, and muscle spasms, readjudicate the issues on appeal, including service connection for type 2 diabetes mellitus on the merits. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.