Citation Nr: 21027875 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-35 998 DATE: May 7, 2021 REMANDED Entitlement to service connection for heart disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for kidney disability is remanded. Entitlement to service connection for arthritis of multiple joints is remanded. (The claim for service connection for a respiratory disability will be addressed in a separate Board decision) REASONS FOR REMAND The Veteran served on active duty from September 1968 to August 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims of service connection for heart bypass, diabetes mellitus, kidney stones, arthritis, and exposure to radiation. The Veteran testified before the undersigned Veterans Law Judge in November 2019 during a Travel Board hearing. A transcript of that hearing is of record. As a final preliminary matter, the Veteran claimed service connection for radiation exposure. However, during his November 2019 Travel Board hearing, he testified that his heart, diabetes, and kidney disabilities were related to radiation exposure in service. Thus, the Board will proceed to adjudicate the Veteran's contention that his claimed disabilities are related to radiation exposure in service. The Board notes that the Veteran's claim for service connection for a respiratory disability is the subject of a separate Board decision. In addition, the Board regrets the delay that has occurred in this case and the additional delay due to the remand, but as indicated below, additional development is required before the Board can render a decision on this claim. Entitlement to service connection for heart disability, diabetes mellitus, and kidney disability The Veteran contends that his heart disability, diabetes mellitus, and kidney disability are related to herbicide agent or radiation exposure when serving aboard the USS Diamond Head. Specifically, the Veteran testified during his November 2019 Travel Board hearing that he served as a deck hand aboard the USS Diamond Head after it had just returned from Vietnam and was put into dry dock. While working as a deck hand, the Veteran worked without protective gear in the paint locker where chemicals and paints were stored. He also worked in the bottom of the ship scrapping metal. The Veteran additionally testified during his November 2019 Travel Board hearing that he loaded and unloaded nuclear weapons without protective gear aboard the USS Diamond Head in Earle, New Jersey and Florida. Multiple VA treatment records note that the Veteran has diagnoses of chronic ischemic heart disease, type II diabetes mellitus, and chronic kidney disease. Thus, the Veteran meets the current disability requirement. Although the RO followed the development procedures to verify the Veteran's herbicide agent exposure by sending the Veteran a letter requesting the dates, locations, and nature of the alleged herbicide agent exposure and issued a Formal Finding in February 2016, in light of the information provided by the Veteran in January and August 2017, subsequent to the VA's development letter, as well as his testimony during the November 2019 Travel Board hearing, the Agency of Original Jurisdiction should conduct any necessary development in an attempt to verify the Veteran's exposure to herbicide agents. This is particularly true in light of 38 U.S.C. § 1116A, which extends the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. While the Veteran contends that his heart disability, diabetes, and kidney disability are due to radiation exposure, these disabilities are not considered radiogenic diseases under 38 C.F.R. § 3.311(b). Furthermore, the Veteran has not cited or submitted competent medical evidence that these disabilities are radiogenic diseases, and the evidence of record does not show that these disabilities may be induced by ionizing radiation. Thus, the development applicable to such diseases under 38 C.F.R. § 3.311 does not apply. However, the evidence indicates that the Veteran has current disabilities that may be associated with service. As the Veteran has not been afforded VA examinations in connection with the claims, a remand for examinations is warranted. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to service connection for arthritis in multiple joints The Veteran testified during his November 2019 Travel Board hearing that he fell approximately 20 feet off of a ladder onto a steel deck when a wave hit the ship he was serving aboard. Since that incident, he has experienced pains in his feet, legs, and shoulders. He additionally noted that his chiropractor showed him x-rays indicating arthritis all throughout his body. Thus, the evidence indicates that the Veteran may have current disabilities that may be associated with service. As the Veteran has not been afforded VA examinations in connection with the claim, a remand for an examination is warranted. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 79. Accordingly, the matters are REMANDED for the following action: 1. Conduct any necessary development regarding the Veteran's contention of exposure to herbicide agents in service. If the Veteran meets the criteria for the presumption of exposure to herbicide agents, apply the presumption of service connection to any disorder for which service connection is presumed in veterans exposed to herbicide agents. 2. Once any additional development in regard to herbicide agents has been completed, obtain medical opinions from an appropriate physician to address: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's heart disability is related to service, to include radiation exposure, unless the Veteran is presumed exposed to herbicide agents. (b.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's kidney disability is related to service, to include herbicide agent and radiation exposure. (c.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diabetes is related to service, to include radiation exposure, unless the Veteran is presumed exposed to herbicide agents. The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinions provided. 3. Schedule a VA examination with an appropriate physician to address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's arthritis in multiple joints had its onset in service or is related to service. The claims file should be provided to and reviewed by the physician. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.