Citation Nr: 21041257 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-04 323 DATE: July 8, 2021 REMANDED Entitlement to service connection for cancer of larynx, to include as due to herbicide exposure is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active duty service in the Navy from October 1966 to October 1970. 1. Entitlement to service connection for cancer of larynx, to include as due to herbicide exposure is remanded. The Veteran asserts that he has cancer of the larynx as a result of his service. The Veteran has satisfied the first element of service connection with a diagnosis and treatment for larynx cancer. The matter therefore turns on whether there is an in-service event, diagnosis or treatment for these conditions and a nexus between them all. There is no record of in-service diagnosis, treatment or event related to the Veteran's larynx cancer. However, the Veteran is a Vietnam era Navy veteran who claims to be a Blue water veteran. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to herbicide agents. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. These diseases include certain respiratory disorders. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). The phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the territorial seas of the Republic of Vietnam extending 12 nautical miles from the shores of that nation. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Congress has enacted the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Navy Act). Pub. L. No. 116-23, 133 Stat. 966 (2019). The effective date of the Blue Water Navy Act is January 1, 2020. The stated main purpose of this Act was "to amend title 38, United States Code, to clarify presumptions relating to the exposure of certain veterans who served in the vicinity of the Republic of Vietnam, and for other purposes." See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019), Synopsis. The Blue Water Navy Act defines service "offshore of the Republic of Vietnam" as encompassing service in the territorial sea extending 12 nautical miles from the shores both of that nation and of Cambodia. See 38 U.S.C. § 1116A(d) (2019). It provides that the 12 miles are measured seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting at certain points (latitude North, longitude East); these are set out in a Points Geographic table included there. See 38 U.S.C. § 1116A(d). A veteran's service must take place during the period January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116A(a), as in this Veteran's case. The Board observes that the Veteran served aboard several vessels during service, including, but not limited to, the USS Henry W. Tucker, USS America, and/or USS Enterprise during times they were located in the South China Sea. A Defense Personnel Records Information Retrieval System (DPRIS) summarizes the command history of the USS Henry W. Tucker and notes that the ship was in the official waters of Vietnam for several periods during the Veteran's period of service, but determined there was no conclusive proof of boots on the ground service. There is also a Defense Personnel Records Informational Retrieval System (DPRIS) response that summarizes the command histories of the USS Enterprise during the Veteran's period of service, but no finding as to herbicide exposure is discussed. (This would be prior to application of the current Blue Water Provisions.) It does not appear that any research has been conducted with regard to the USS America. The Board further observes that his DD-214 lists the Vietnam Service Medal and Republic of Vietnam Campaign Medal amongst his awards and decorations. Based on the current record, it cannot be clearly determined that the Veteran crossed the 12-nautical-mile threshold of Vietnam to allow for the grant of service connection on a presumptive basis. Thus, in light of the implementation of the Blue Water Navy Act, the Board must remand this case for additional factual development, specifically for the Agency of Original Jurisdiction (AOJ) to determine whether any ship on which the Veteran was aboard during the relevant time period was within the 12 nautical mile territorial sea of Vietnam. Regardless of whether herbicide exposure can be conceded and presumptive service connection granted based on attempts to verify the Veteran's service onboard any above-mentioned vessel, the Veteran may still be entitled to service connection for larynx cancer based on direct service connection. As such, the Veteran should be afforded a VA opinion to help determine the etiology of this disability if service connection cannot be granted on a presumptive basis. 2. Entitlement to service connection for bilateral hearing loss is remanded. Initially, the Board acknowledges that service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2019). The Board notes that the Veteran's service records do not include any complaints of or treatment for hearing loss. The Veteran received a VA audiological examination in August 2014. Results show the left ear with 96 percent discrimination. Decibel (dB) loss at the puretone threshold of 500 Hertz (Hz) is 20 with a 20 dB loss at 1000 Hz, a 15 dB loss at2000 Hz, a 30 dB loss at 3000 Hz, and a 25 dB loss at 4000 Hz. The average decibel loss is 23in the left ear. The right ear shows a speech discrimination of 94 percent. Decibel (dB) loss at the puretone threshold of 500 Hertz (Hz) is 20 with a 15 dB loss at 1000 Hz, a 20 dB loss at 2000Hz, a 25 dB loss at 3000 Hz, and a 25 dB loss at 4000 Hz. The average decibel loss is 21 in the right ear. Therefore, he did not have a bilateral hearing loss disability for VA purposes. In the November 2020 Informal Hearing Presentation (IHP), the Veteran and his representative maintain that his hearing loss has worsened and requested another examination. Therefore, the Board finds that an additional VA audiological examination would help shed light on this issue. 3. Entitlement to service connection for erectile dysfunction is remanded. The Veteran contends that his erectile dysfunction is a result of service, including an in-service circumcision. The Board acknowledges that the Veteran has received some treatment for several conditions, including erectile dysfunction. It does not appear that the Veteran has ever received a VA examination for this condition. Also, the November 2020 IHP includes a request for a VA examination. Therefore, the Board finds a VA erectile dysfunction examination and corresponding etiological opinion would help resolve this issue. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Initially, the Board notes that it has expanded the scope of his claim to include any acquired psychiatric disorder, to include PTSD. The Veteran previously reported a stressor of having to transport body bags. A response from the US Army and Joint Services Records Research Center indicates that deck logs for the USS Enterprise and Fighter Squadron 92 were reviewed and provide no evidence of this incident; as such, there is insufficient evidence of record to corroborate this stressor. The Veteran also submitted a Disability Benefits Questionnaire (DBQ) from September 2015 completed by a private provider, wherein a diagnosis of PTSD, depression, and alcohol abuse were confirmed. However, no etiological opinion was provided. The Board observes that it does not appear that the Veteran has received a VA psychological examination. Also, the November 2020 IHP includes a request for a VA examination. Therefore, the Board finds that an additional VA psychiatric examination is warranted. Finally, there may be outstanding or pertinent treatments available for review. The Board finds that it would be prudent for an attempt to obtain any outstanding treatment records be made. The matters are REMANDED for the following actions: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran's electronic claims file. If the Agency of Original Jurisdiction (AOJ) cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran's electronic claims file. 2. Also, contact the National Archives and Records Administration (NARA), or other appropriate entity, to obtain ship logs and any other relevant information to aid in the determination of whether the USS Henry W. Tucker, USS America and/or USS Enterprise entered the offshore waters of Vietnam, as defined in 38 U.S.C. § 1116A. Specifically, it should be determined whether any vessel came within 12 nautical miles of the Republic of Vietnam during the Veteran's periods of service onboard each vessel. If it is determined that either ship was within the 12-mile limit, undertake adjudication of the instant claims. 3. If it is found that any vessel was not within the 12-mile limit for the purposes of granting the claim, undertake the following development for determining direct service connection with respect to larynx cancer: Arrange for a pertinent VA opinion and/or examination as needed, with a VA examiner of appropriate expertise to determine the nature and etiology of the Veteran's claimed cancer of the larynx. The examiner is to be provided access to the electronic claims file and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. Any indicated diagnostic tests and studies should also be accomplished. The examiner should then opine whether the Veteran's larynx cancer at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service. The examiner should specifically address the Veteran's contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. The examiner should also address and reconcile all reports, as well as any other pertinent evidence of record, if necessary. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Also, schedule the Veteran for a VA examination with an audiologist to determine the nature and etiology of the Veteran's claimed bilateral hearing loss. The audiologist is to be provided access to the Veteran's electronic claims file. The audiologist is requested to review all pertinent records associated with the claims file, the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. Any indicated diagnostic tests and studies should also be accomplished. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and in-service noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the audiologist should provide a fully reasoned explanation. The VA audiologist must opine whether it is at least as likely as not (50 percent or higher degree of probability), that the Veteran's bilateral hearing loss, if found, manifested in-service or is otherwise causally or etiologically related to his military service, to include potential in-service noise exposure. The significance, if any between recorded findings on entrance and separation should be discussed, even though the hearing was essentially normal at separation. It should be indicated whether the recorded change suggests the early onset of hearing loss. It should also be indicated whether the hearing loss is the type typically seen in cases of acoustic trauma, or is more likely due to advancing age, infection, or other cause. All prior reports should be reconciled, as necessary. 5. Additionally, schedule the Veteran for a VA examination with an examiner of appropriate expertise to determine the nature and etiology of the Veteran's erectile dysfunction claimed as secondary to in-service circumcision. The examiner is to be provided access to the Veteran's electronic claims file. The audiologist is requested to review all pertinent records associated with the claims file, the Veteran's service treatment records, post-service medical records, and the Veteran's own assertions. Any indicated diagnostic tests and studies should also be accomplished. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The VA examiner must opine whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's erectile dysfunction manifested in-service or is otherwise causally or etiologically related to the Veteran's military service, including in-service circumcision. In offering any opinion, the examiner must consider the full record, to include the lay statements in support of the Veteran's claim. The examiner should also reconcile any prior report, as necessary. The rationale for any opinions offered should be provided. 6. Also, schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to determine the nature and etiology of his claimed acquired psychiatric disorder, to include PTSD. The examiner is to be provided access to the Veteran's electronic claims file and must specify in the report that these records have been reviewed. (a) After the review of the electronic claims file and examination of the Veteran, the examiner should identify and state all acquired psychiatric disorders found. An explanation for any opinions expressed must be provided, and if the requested information cannot be provided without resort to speculation, the examiner should so state and explain why. (b) If the examiner does not find any acquired psychiatric disorder(s) or finds that a diagnosis of such is not appropriate, the examiner should give specific reasoning for that conclusion. If no disorder is found the examiner must express whether the disorder existed earlier in the appeal period and the examiner should clearly explain why the noted evidence does not establish a chronic diagnosis. (c) If and only if the examiner finds that any acquired psychiatric disorder(s) is/are present, or was/were present at any time during the appeal period though it has since resolved, the examiner should then opine whether the Veteran's identified disorder(s) at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service. The examiner should specifically address the Veteran's contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. The examiner should also address and reconcile any previous examination reports, as well as any other pertinent evidence of record, as necessary. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 7. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.