Citation Nr: 21014450 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-52 376 DATE: March 12, 2021 ORDER Service connection for type II diabetes mellitus is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for chondromalacia, left knee is remanded. Service connection for a left hip condition, as secondary to the service-connected left knee disability is remanded. Service connection for a right hip condition, to include as secondary to the service-connected left knee disability is remanded. Service connection for a neurocognitive disorder is remanded. Service connection for diastolic heart failure is remanded. Service connection for hypertension is remanded. Service connection for asthma is remanded. Service connection for chronic obstructive pulmonary disorder (COPD) is remanded. Service connection for sleep apnea is remanded. Service connection for bilateral hearing loss is remanded. Service connection for a seizure disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of type II diabetes mellitus. 2. The Veteran had Blue Water Navy service in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1971 to October 1974. This matter comes before the Board of Veterans’ Appeals (BVA) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge in August 2020. A transcript of the hearing is of record. Service connection for type II diabetes mellitus Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A Veteran who, during military service, served “in-country” in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.30(a)(6)(iii). Recently, the United States Court of Appeals for the Federal Circuit (Court) held that 38 U.S.C. § 1116 unambiguously expressed Congress’ intent that those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of herbicide exposure. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). The Board further notes that, on June 25, 2019, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019, which extends the presumption of exposure to herbicide agents to those veterans who served within the 12 nautical miles of Vietnam. See Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019) (effective January 1, 2020). Certain diseases shall be service-connected if the Veteran was exposed to an herbicide agent during service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Type II diabetes is listed under 38 C.F.R. § 3.309(e) as being presumptively related to herbicide exposure. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a current diagnosis of type II diabetes mellitus, as reflected in the VA treatment records. VA has conceded that the Veteran was exposed to herbicide agents as a result of his nautical service in the offshore eligible waters defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The Board thus finds that all the elements for establishing service connection for type II diabetes mellitus on a presumptive basis due to exposure to herbicide agents are met and service connection is granted. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309(e). REASONS FOR REMAND Increased disability rating for the left knee disability and service connection for a bilateral hip condition and a neurocognitive disorder Following the most recent adjudication of the claims for an increased rating for a left knee disability and service connection for a bilateral hip condition and a neurologic disorder in the September 2016 Statement of the Case (SOC), relevant evidence has been added to the record by VA. Specifically, a VA examination for the Veteran’s knees was obtained in February 2020 and VA examinations for the Veteran’s mental disorders were obtained in March 2020. Also, updated VA treatment records were added to the record in August 2020. The Board sent the Veteran a letter requesting waiver of AOJ review of this evidence in January 2021 and notified the Veteran that if he did not respond within 45 days, the matters would be remanded for AOJ review of the new evidence. As 45 days has elapsed without a response from the Veteran, the Board remands the Veteran’s claims for an increased left knee disability and for service connection for bilateral hip disabilities and a neurocognitive disorder. The Veteran has not been afforded a VA examination for his bilateral hip disabilities. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide the claim. See 38 U.S.C. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. See McClendon, 20 Vet. App. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms and events. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Veteran testified that his hip disabilities are related to and occurred as part of the same in-service incidents that caused his service-connected left knee disability. The Board finds that the Veteran’s testimony regarding his hip injuries are sufficient to warrant a VA examination to determine the nature and etiology of his bilateral hip condition, including whether it is secondary to his service-connected left knee disability. The Board also notes that the claim for a neurocognitive disorder is intertwined with pending claims. Specifically, adjudication of the claim for service connection for PTSD was deferred in the February 2021 rating decision. The Veteran also contends that his neurocognitive disorder is related to his sleep apnea, which is pending as a result of this decision. Service connection for diastolic heart failure, hypertension, asthma, COPD and sleep apnea The Veteran contends that his diastolic heart failure, hypertension, asthma, COPD and sleep apnea are related to his heart disease or herbicide exposure. VA and private treatment records reflect that he has current diagnoses of each condition. As noted, the Veteran’s exposure to herbicide agents as a “blue water veteran” has been conceded. The Veteran has also been service connected for coronary artery disease, unstable angina and congestive heart failure during the pendency of this appeal. Service connection may be granted where a disability is proximately due to or the result of an already service-connected disability. 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability; and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A November 2016 private treatment record notes that the Veteran has hypertension, heart disease, pulmonary disease and sleep apnea and that these conditions can be related. While the private treatment record is not sufficient to support a finding of service connection, the Board finds remand is warranted for a VA medical opinion to determine the nature and etiology of the Veteran’s diastolic heart failure, hypertension, asthma, COPD and sleep apnea, including whether the conditions are related to his service-connected coronary artery disease. See McClendon, supra. The Board also notes that the Veteran claims his sleep apnea, asthma and COPD are related to asbestos exposure while working on the USS Saratoga. The Veteran’s military personnel records confirm that he was stationed on the USS Saratoga from May 1972 to January 1973. On remand, the RO should seek additional information from the Veteran concerning his reported exposures to asbestos so that steps may be taken to verify his contentions. After such development, an addendum opinion addressing this theory of entitlement should also be obtained. Service connection for bilateral hearing loss is remanded. The Veteran’s claim for bilateral hearing loss was denied on the ground that the record did not reflect hearing loss for purposes of a VA disability. 38 C.F.R. § 3.385. The Veteran has not been afforded a VA examination for his hearing loss claim. The Veteran’s military occupational specialty (MOS) as a boatswain’s mate has a high probability of hazardous noise exposure. The Veteran testified at the Board hearing that his hearing loss has gotten worse and that he has trouble communicating. He also testified that a hearing test taken at his place of employment reflected a significant drop in certain frequencies. In light of the evidence of in-service noise exposure and worsening hearing loss, more contemporaneous medical findings are needed to fairly evaluate the Veteran’s claim for service connection for bilateral hearing loss. Accordingly, the claim is remanded to obtain a VA examination to determine the nature and etiology of any hearing loss. Service connection for a seizure disorder is remanded. The Veteran contends that his seizure disorder is related to his diabetes mellitus or his herbicide exposure. Private treatment records confirm that the Veteran has been diagnosed with a seizure disorder. As the Veteran’s exposure to herbicides is now conceded, and he is service connected for diabetes mellitus as a result of his decision, the Board finds that remand is warranted for a VA medical opinion to determine the nature and etiology of the Veteran’s seizure disorder, to include whether it is related to the Veteran’s service-connected diabetes or his herbicide exposure. See McClendon, supra. TDIU The issue of entitlement to a TDIU is inextricably intertwined with the issues of an increased disability rating for the left knee, and the service connection claims for a bilateral hip condition, neurocognitive disorder, diastolic heart failure, hypertension, asthma, COPD, sleep apnea, bilateral hearing loss and seizure disorder. Accordingly, the claim for a TDIU must also be remanded pending the outcome of the intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records and associate them with the claims file. 2. Conduct appropriate development, including obtaining additional information regarding the claimed exposures from the Veteran, to verify any potential exposure to asbestos during service. 3. Obtain the results of the audiometric testing performed on the Veteran at his place of employment. If the records are not available, the claims file should be annotated as such and the Veteran notified. 4. After the development in item 1 and 3 has been completed to the extent possible, schedule the Veteran for a VA audiological examination addressing the nature and etiology of any bilateral hearing loss. If the evidence or results of audiometric testing indicates a hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s hearing loss had its onset in, was caused by, or is otherwise related to service. 5. After the development requested in item 1 has been completed to the extent possible, schedule the Veteran for a VA examination addressing the nature and etiology of the Veteran’s bilateral hip conditions. The entire claims file and this remand should be made available to and be reviewed by the clinicians in conjunction with this request. The examiner is requested to opine as to: (a.) Whether it is at least as likely as not that the Veteran’s bilateral hip pain was incurred in service or is otherwise related to service? The examiner should specifically address the Veteran’s testimony regarding his injuries in service and their effect on his hips. (b.) If not related to service, is it at least as likely as not that the Veteran’s bilateral hip disabilities were caused by his service-connected left knee disability? (c.) If not caused by the left knee disability, is it at least as likely as not that the Veteran’s bilateral hip disabilities have been worsened beyond normal progression by his service-connected left knee disability? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran’s left knee disability caused any incremental increase, even transient, in his bilateral hip disabilities, regardless of permanence. (d.) If the examiner finds that the Veteran’s bilateral hip disability has been worsened beyond normal progression (aggravated) by his service-connected left knee disability, please attempt to quantify the degree of aggravation beyond the baseline level of the bilateral hip disability that is attributable to the left knee disability. 6. After items 1 and 2 have been completed to the extent possible, forward the Veteran’s claims file to appropriate VA clinicians to provide medical opinions regarding the nature and etiology of the Veteran’s diastolic heart failure, hypertension, asthma, COPD and sleep apnea. The entire claims file and this remand should be made available to and be reviewed by the clinicians in conjunction with this request. If a clinician believes that a physical examination should be conducted to provide the requested opinion one should be provided. Thereafter, the clinicians should address the following: (a.) Whether it is at least as likely as not that the Veteran’s diastolic heart failure or hypertension had their onset in service or are otherwise related to service, to include his exposure to herbicides. Please explain why or why not. (b.) If not related to service, is it at least as likely as not that the Veteran’s diastolic heart failure or hypertension was caused by his service-connected coronary artery disease? (c.) If not caused by coronary artery disease, is it at least as likely as not that the Veteran’s diastolic heart failure or hypertension has been worsened beyond normal progression by his service-connected coronary artery disease? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran’s coronary artery disease caused any incremental increase, even transient, in his diastolic heart failure or hypertension, regardless of permanence. (d.) If the examiner finds that the Veteran’s diastolic heart failure or hypertension has been worsened beyond normal progression (aggravated) by his service-connected coronary artery disease, please attempt to quantify the degree of aggravation beyond the baseline level of diastolic heart failure or hypertension that is attributable to coronary artery disease. (e.) Whether it is at least as likely as not that the Veteran’s asthma or COPD had its onset in or is otherwise related to service, to include his exposure to herbicides or asbestos. Please explain why or why not. (f.) If not related to service, is it at least as likely as not that the Veteran’s asthma or COPD was caused by his service-connected coronary artery disease? (g.) If not caused by coronary artery disease, is it at least as likely as not that the Veteran’s asthma or COPD have been worsened beyond normal progression by his service-connected coronary artery disease? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran’s coronary artery caused any incremental increase, even transient, in his asthma or COPD, regardless of permanence. (h.) If the examiner finds that the Veteran’s asthma or COPD has been worsened beyond normal progression (aggravated) by his service-connected coronary artery disease, please attempt to quantify the degree of aggravation beyond the baseline level of asthma or COPD that is attributable to coronary artery disease. (i.) Whether it is at least as likely as not that the Veteran’s sleep apnea had its onset in or is otherwise related to service, to include his exposure to herbicides or asbestos. Please explain why or why not. (j.) If not related to service, is it at least as likely as not that the Veteran’s sleep apnea was caused by his service-connected coronary artery disease? (k.) If not caused by coronary artery disease, is it at least as likely as not that the Veteran’s sleep apnea has been worsened beyond normal progression by his service-connected coronary artery disease? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran’s coronary artery disease caused any incremental increase, even transient, in his sleep apnea, regardless of permanence. (l.) If the examiner finds that the Veteran’s sleep apnea has been worsened beyond normal progression (aggravated) by his service-connected coronary artery disease, please attempt to quantify the degree of aggravation beyond the baseline level of sleep apnea that is attributable to coronary artery disease. (m.) Whether it is at least as likely as not that the Veteran’s seizure disorder is caused by service, to include the Veteran’s exposure to herbicides. (n.) If not related to service, is it at least as likely as not that the Veteran’s seizure disorder was caused by his service-connected diabetes mellitus? (o.) If not caused by diabetes mellitus, is it at least as likely as not that the Veteran’s seizure disorder has been worsened beyond normal progression by his service-connected diabetes mellitus? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran’s diabetes mellitus caused any incremental increase, even transient, in his seizure disorder, regardless of permanence. (p.) If the examiner finds that the Veteran’s seizure disorder has been worsened beyond normal progression (aggravated) by his service-connected diabetes mellitus, please attempt to quantify the degree of aggravation beyond the baseline level of seizure disorder that is attributable to diabetes mellitus. A complete rationale for the examiners’ opinions should be provided, citing to specific evidence of record and any relevant medical literature, as necessary. If the examiners cannot provide the requested opinions without resorting to speculation, it must be stated, and the examiners must provide the reasons why an opinion would require speculation. The examiners must indicate whether there was any further need for information or testing necessary to provide an opinion. Additionally, the examiners must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community and not those of the examiners. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.