Citation Nr: 21041852 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-35 231 DATE: July 10, 2021 ORDERS Service connection for hypertension, to include as due to herbicide exposure, is granted. Service connection for diabetes mellitus type II, to include as due to herbicide exposure, is granted. REMANDED Service connection for a left knee condition is remanded. Service connection for a right knee condition, to include as secondary to a left knee condition, is remanded. Service connection for a lower back condition is remanded. Service connection for an esophageal condition, to include, gastroesophageal reflux disease (GERD), as due to herbicide and asbestos exposure, is remanded. Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The Veteran served aboard the U.S.S. Ticonderoga in support of the operations in the Gulf of Tonkin during the period of August 2-5, 1964. The Board finds (on a non-precedential, facts-found basis) that this evidence establishes herbicide agent exposure. 2. The Veteran's hypertension is reasonably shown to be related to or caused by his active service, to include as due to herbicide exposure. 3. The Veteran's diabetes mellitus type II is presumed to be related to exposure to herbicide agents while serving in Vietnam. CONCLUSIONS OF LAW 1. The criteria have been met for service connection (on a presumptive basis) for hypertension. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria have been met for service connection (on a presumptive basis) for diabetes mellitus type II. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to September 1965. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In December 2016, the Veteran submitted a Notice of Disagreement with the October 2016 rating decision. In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. The Veteran initially filed a claim to establish service connection for Barrett's esophagus and gastroesophageal reflux disease (GERD). In determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the decision in Clemons and the diagnoses of record, the Board has expanded the Veteran's claim to include an esophageal condition, generally, and the issue has been recharacterized as stated on the title page. This will provide the most sympathetic and favorable review of the Veteran's claim in keeping with the holding in Clemons. SERVICE CONNECTION Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. §§ 1113, 1116 and 38 C.F.R. §§ 3.307(d), 3.309(e) are met. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2016). The Secretary of the Department of Veterans Affairs has determined that there is no automatic positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994). See also 61 Fed. Reg. 41442 -41449, and 61 Fed. Reg. 57586 -57589 (1996). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. 1. Service connection for hypertension is granted. 2. Service connection for diabetes mellitus type II is granted. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Factual Background During his February 2020 hearing, the Veteran testified that his hypertension and diabetes mellitus type II were the result of herbicide exposure. He stated that the ship he was on caught fire and he had to stay on it. The Veteran testified that he served during the Tonkin Bay Incident and that his ship was considered a "blue water ship." The Veteran's military personnel record contains a citation for commendation from the Secretary of the Navy for "exceptionally meritorious service in support of operations in the Gulf of Tonkin during the period 2-5 August 1964." This citation is evidence that the Veteran served on a "blue water ship" and, because of that fact, herbicide exposure is presumed. Analysis Diabetes mellitus type II is a presumptively service-connected condition under 38 C.F.R. §§ 3.303, 3.309(e). Because the Veteran was exposed to herbicide agents during his service in Vietnam, the Veteran's diabetes is presumed to be related to his service. Concerning the Veteran's hypertension, although a causal relationship has not been demonstrated through a foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a "valid medical opinion" is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e). However, the National Academies of Sciences, Engineering, and Medicine, on November 15, 2018, moved hypertension to the category of "sufficient" evidence of an association from its previous classification in the "limited or suggestive" category," indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicide agents, including Agent Orange. See National Academy of Science (NAS) November 2018 update report titled, Veterans and Agent Orange Update 11 (2018). The Board finds the study provided by the NAS, which is made up of experts in the given field of science, is probative evidence that is relevant here. Weighing the available evidence, the Board determines that at the very least, the evidence is evenly balanced for and against ("in relative equipoise") as to whether the Veteran's hypertension is related to active service. Because of this, the Board finds that it is at least as likely as not that the Veteran's hypertension is causally related to active service. Accordingly, the criteria for service connection have been met, and the claims for service connection for diabetes mellitus type II and hypertension are granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS FOR REMAND 1. Service connection for a left knee condition is remanded. 2. Service connection for a right knee condition, to include as secondary to a left knee condition, is remanded. In his February 2020 hearing, the Veteran testified that he injured his left knee during service. He noted that while serving in the Navy, he was responsible for catching powder casings from guns as they were ejected. The Veteran testified that as the casings flew out of the gun, they would hit against his left knee. The Veteran also testified that because of his left knee, he developed problems in his right knee. He stated that he believes his left knee condition lead to right knee problems. The Board notes that the Veteran has never had a VA examination to determine whether his left knee condition is related to active service, or if his right knee condition is secondarily related to his left knee. Because of this, a VA examination is necessary to determine the cause of the Veteran's knee problems. 3. Service connection for a lower back condition is remanded. In his February 2020 hearing, the Veteran testified that he injured his back during active service. He stated that one of his duties was to work on garbage detail where he had to roll 55-gallon drums filled with garbage out of the building. The Veteran testified that he hurt his back rolling one of these drums and he was offered a medical discharge from the Navy. He refused and explained that maybe that was why his service treatment records (STRs) did not contain a record of his back injury. The Veteran testified that, ever since, he had back problems that have only gotten worse with time. The Veteran has never had a VA examination to determine the cause of his back condition. Because of this, an examination is necessary to determine whether his back problems were related to active service. 4. Service connection for an esophageal condition, to include, GERD, as due to herbicide and asbestos exposure, is remanded. In his February 2020 hearing, the Veteran testified that he believes his GERD is due to either herbicide exposure or asbestos. During the hearing, the Veteran stated that, as a boatswain mate, 40 percent of his job was to repaint the ship out at sea or in port. He testified that he removed a lot of asbestos on the pipes so he could repaint them with asbestos. The Veteran also testified that he believes that, while on his ship, he was exposed to herbicide agents. The Veteran has never had a VA examination to determine the cause of his esophageal condition, to include GERD. Because of this, the VA must try to determine if he was exposed to asbestos and herbicide agents, and if so, whether his medical conditions are the result of this. 5. Service connection for sleep apnea is remanded. During his February 2020 hearing, the Veteran testified that while he was only diagnosed with sleep apnea in 2006, he had a long history of sleep problems and loud snoring going all the way back to his active service. He stated that during service, his buddies would shake him and roll him over to try and stop his snoring. The Veteran's spouse, who married him shortly after he left active service, testified that she witnessed apneas while he slept. She stated that after service, the Veteran had daytime sleepiness and would fall asleep right in the middle of parties, even though he was only 20 years old. The Veteran has never had a VA examination to determine the cause of his sleep apnea. Because of this, an examination is necessary to determine if his sleep apnea is related to active service. The matters are REMANDED for the following actions: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Schedule the Veteran for a VA orthopedics examination, to determine the identity and cause of any diagnosed bilateral knee condition and low back condition. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case, to include the Veteran's February 2020 hearing testimony. A notation to the effect that this record review took place should be included in the report. After the above has been completed, the examiner should address whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed left knee condition and low back condition are causally related to active service, or represent the initial manifestations of his current disabilities If the examiner determines that the Veteran's left knee condition IS related to his active service, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee condition is either directly related to active military service OR was proximately CAUSED BY or AGGRAVATED BY his left knee condition. The Board notes that, in providing an opinion, the VA examiner should NOT comment on whether a disability in one knee can "spread" to the other knee. The Veteran is alleging that his left knee problems altered his gait and walking style which put more pressure on his right knee, causing that knee to develop problems. 4. Schedule the Veteran for a VA examination to determine the nature and cause of any diagnosed esophageal condition, to include GERD. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiners for review of the case. A notation to the effect that this record review took place should be included in the report. For any diagnosed esophageal condition, to include GERD, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed condition is causally related to active service, to include exposure to herbicide agents and asbestos, or represents the initial manifestations of the Veteran's current diagnoses. In reaching any conclusion, the examiner should be made aware that the Veteran is presumed to have been exposed to herbicide agents while serving in the waters around Vietnam. The examiner should also take into consideration the Veteran's February 2020 testimony indicating that he was exposed to asbestos when he was painting pipes during service and the examiner should assume, for the purposes of the examination, that these reports are credible and accurate. 5. The AOJ should then schedule the Veteran for a VA examination to assist in determining the nature and cause of his sleep apnea. The Veteran's claims folder must be made available to the examiner. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: Please identify the likely cause of the Veteran's sleep problems. Specifically, is it at least as likely as not that this disability was incurred during active military service or is otherwise related to military service, to include as due herbicide exposure. In reaching any conclusion, the Veteran and his spouse's February 2020 testimony should be taken into consideration. In addition, although sleep apnea is often diagnosed by overnight polysomnogram (sleep study), the Board notes that several other clinical predictors of sleep apnea have been developed, including questionnaires such as the STOP-BANG, a validated screening tool for sleep apnea (See, e.g. "STOP-Bang Questionnaire: A Practical Approach to Screen for Obstructive Sleep Apnea" published in the peer-reviewed medical journal Chest in March 2016 at 149(3):631-8 (noting 8 clinical predictors of sleep apnea, including Snoring, Tiredness during the day, Observed apnea during sleep, high blood Pressure, BMI (Body Mass Index) greater than 35 kg/m2, Age over 50 years, Neck circumference greater than 40 cm, and male Gender)). Therefore, while reviewing the claims file, the examiner should consider whether any clinical indicators of sleep apnea were present IN THE PAST, for example, during service or any time after service but before a formal sleep diagnosis. The examiner should identify any such clinical indicators and explain whether they might support a retrospective sleep apnea diagnosis. 6. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.