Citation Nr: 21024716 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 10-49 141 DATE: April 26, 2021 ORDER Service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. Service connection for residuals of a left clavicle fracture, as secondary to service connected right shoulder separation surgery (right shoulder disability), is granted. FINDINGS OF FACT 1. The Veteran is currently diagnosed with diabetes mellitus, type II. 2. During service the Veteran made trips from the USS Coral Sea to the Republic of Vietnam, via helicopter, for delivery runs. 3. Residuals of the Veteran’s post-service left clavicle fracture were aggravated by the service-connected right shoulder disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for diabetes mellitus, type II, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for residuals of a left clavicle fracture, as secondary to service- connected right shoulder disability, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from July 1972 to April 1981, and from February 1983 to April 1994. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The instant matter has a long procedural history. Most recently, in May 2019, the Board remanded the issues of service connection for a left shoulder disability and service connection for diabetes mellitus for additional development. As the instant decision grants service connection for both diabetes mellitus, type II, and residuals of a left clavicle fracture, which is a complete grant as to the remaining issues on appeal, no further discussion concerning remand compliance is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted above, in May 2019 the Board remanded the issue of service connection for a left shoulder disability. While on remand, in an April 2020 rating decision, the RO granted service connection for a left shoulder disability under Diagnostic Code 5201. In rendering this decision, the RO bifurcated the question of service connection for residuals of a left clavicle fracture from the issue of service connection for a left shoulder disorder, and denied service connection for residuals of a left clavicle fracture in an April 2020 supplemental statement of the case (SSOC). As such, the only issue remaining before the Board as it pertains to the left shoulder is the question of whether service connection is warranted for residuals of a left clavicle fracture. During the course of this appeal the Veteran testified at two different hearings before the Board. First, the Veteran testified from Nashville, Tennessee, at a July 2012 Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. Subsequently, the Veteran testified from Nashville, Tennessee, at a at a February 2019 Travel Board hearing before the undersigned Veterans Law Judge. The hearing transcripts have been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for diabetes mellitus, type II, and residuals of a left clavicle fracture, no further discussion of the duties to notify and assist is necessary. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a),(d). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. “Service” in the Republic of Vietnam includes (but is not limited to) duty on aircraft carriers and other ships operating temporarily within the 12 nautical miles of territorial seas of the Republic of Vietnam. 38 U.S.C. § 1116A; Procopio, 913 F.3d 1371. Type II diabetes mellitus is on the list of herbicide presumptive diseases. 38 C.F.R. § 3.309(c). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. An increase in severity of a non service connected disorder that is proximately due to or the result of a service connected disability, and not due to the natural progress of the non service connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non service connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Service Connection for Diabetes Mellitus, Type II The Veteran seeks service connection for diabetes mellitus, type II, as due to in service herbicide exposure. At the outset, the Board finds that the Veteran is currently diagnosed with diabetes mellitus, type II. Such diagnosis can be found within the VA treatment records. Next, the Board finds the evidence at least in equipoise on the question of whether the Veteran was within the Republic of Vietnam during service while on one or more delivery runs. Review of the Veteran’s service personnel records reflect that the Veteran served aboard the USS Coral Sea from September 1972 through June 1974. It has never been the Veteran’s contention that the USS Coral Sea docked at any port in the Republic of Vietnam and/or approached within 12 nautical miles of the Republic of Vietnam. In a July 2009 lay statement, the Veteran advanced having made trips from the USS Coral Sea to the Republic of Vietnam, via helicopter, for delivery runs during service. The USS Coral Sea had a helicopter squadron and the Veteran’s in-service responsibilities as an aviation boatswain’s mate are consistent with being called upon to partake in helicopter delivery shore runs. Per an August 2009 response from the Defense Personnel Records Information Retrieval System (DPRIS), a review of deck logs from 1971 through 1972 (which did not cover the entire period of service on the USS Coral Sea) could not verify that the Veteran had been on a helicopter that landed in the Republic of Vietnam; however, DPRIS acknowledged that deck logs from that time period documented the launching and recovery of aircraft from the ship, but did not document the type of aircraft, the names of passengers, and/or the location to which the aircraft was headed. Such evidence supports that it is possible that the Veteran took one or more supply trips via helicopter to the Republic of Vietnam during service. At the February 2019 Travel Board hearing, the Veteran credibly testified that the USS Coral Sea neither docked at any port in the Republic of Vietnam nor approached within 12 nautical miles of the Republic of Vietnam; however, the Veteran did credibly testify to making supply runs via helicopter from the ship to the Republic of Vietnam. Per the Veteran, these helicopter flights took approximately 20 minutes of flight time. The Veteran also testified to specifically being told that they were landing in the Republic of Vietnam. In March 2020, VA received a computerized ship location map showing the location of the USS Coral Sea during the time period from February 1972 through May 1974. Per the computerized printout, the USS Coral Sea had been anchored at numerous positions off the coast of the Republic of Vietnam that could have been reached via 20-minute helicopter flight. In sum, information received from DPRIS in August 2009 supports that aircraft launches took place during periods when the USS Coral Sea was near the Republic of Vietnam, and that such aircrafts could have included helicopters traveling to the Republic of Vietnam on supply runs. A ship location map received in March 2020 supports that at various times the USS Coral Sea was anchored in locations that likely could have reached the coast of the Republic of Vietnam within 20 minutes via Naval helicopter. Since 2009 the Veteran has consistently and credibly advanced having made trips from the USS Coral Sea to the Republic of Vietnam, via helicopter, for delivery runs during service. Such duties are consistent with in service responsibilities as an aviation boatswain’s mate. Such evidence is sufficient to place in equipoise the question of whether the Veteran set foot within the Republic of Vietnam during service on one or more delivery runs. Again, the Veteran is currently diagnosed with diabetes mellitus, type II, which is presumptively associated with herbicide exposure. For the reasons discussed above, the Board has found that during service the Veteran set foot within the Republic of Vietnam on one or more delivery runs from the USS Coral Sea, via helicopter. Resolving reasonable doubt in the Veteran’s favor, such evidence warrants the grant of service connection for diabetes mellitus, type II, on a presumptive basis. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307, 3.309. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. 2. Service Connection for Residuals of a Left Clavicle Fracture As discussed in the introduction, the Veteran has already been service connected for a left shoulder disability; therefore, the only question remaining before the Board is whether service connection is also warranted for the residuals of a post-service left clavicle fracture. VA treatment records reflect that in April 2008 the Veteran was involved in a post-service motorcycle accident. X-rays taken at that time showed a fracture of the left clavicle with significant displacement in a large butterfly fragment. Per the report from a September 2019 VA shoulder examination, the Veteran is currently experiencing residuals of the post service left clavicle fracture. Specifically, the residuals manifested as pain, stiffness, and loss of range of motion in the shoulder. In a corresponding September 2019 VA medical opinion, the VA examiner explained that, following a severe in-service right shoulder injury, the Veteran was forced to rely on the left arm/shoulder more to compensate for the damaged right shoulder. The VA examiner opined it more likely than not that this resulted in excessive wear and tear on the left shoulder. Following the post-service motorcycle accident in April 2008 that resulted in a fracture to the left clavicle, the true extent of the left shoulder damage was brought to light. Based upon the above, along with a review of all the evidence of record, the VA examiner opined that diagnosed left shoulder strain, tendonitis, tear, AC arthritis and separation, and clavicle fracture were less likely than not due to service, but were at least as likely as not secondary to the service-connected right shoulder disability. (Continued on the next page)   While the opinion is not particularly clear, as the Veteran’s left clavicle fracture was caused by a post-service motorcycle accident, and not the service-connected right shoulder disability, presumably the VA examiner concluded that the continued use of the left arm/shoulder to compensate for the service-connected right shoulder disability aggravated the residuals of the left clavicle fracture. Absent any medical opinions to the contrary, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for residuals of a left clavicle fracture, as secondary to the service connected right shoulder disorder (38 C.F.R. § 3.310), on an aggravation basis, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a secondary basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. The Board notes that the VA examiner did not provide an opinion concerning the baseline level of severity of the left clavicle fracture residuals; however, such information is not necessary for the instant secondary service connection grant, as the now service-connected left clavicle fracture residuals will be rated together with the already service-connected left shoulder disability, which has been rated under Diagnostic Code 5201 for painful limitation of motion. Per the report from the October 2019 VA shoulder examination, the residuals of the left clavicle fracture have not manifested as malunion, nonunion, or dislocation of the clavicle or scapula, but rather have only resulted in pain, stiffness, and loss of range of motion. See a 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5203. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.