Citation Nr: 22040104 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-11 832 SDATE: July 13, 2022 REMANDED Entitlement to service connection for a prostate condition, to include prostate cancer, is remanded. Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity associated with diabetes mellitus type II is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity associated with diabetes mellitus type II is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1972 to November 1973. A Board hearing was held before the undersigned Veterans Law Judge in April 2022, and a copy of the hearing transcript is of record. As a preliminary matter, the Veteran's substantive appeal includes the issue of entitlement to service connection for erectile dysfunction (special monthly compensation). See April 2019 VA Form 9. The evidence of record does not contain a claim for entitlement to service connection for erectile dysfunction, and no decision has been issued by VA pertaining to this issue for the Veteran to appeal. The Veteran and his attorney are advised that a claim for entitlement to service connection for erectile dysfunction must be submitted on the form prescribed by the VA Secretary. 38 C.F.R. § 3.155. With respect to the Veteran's original service connection claims for a prostate condition (claimed as prostate cancer) and diabetes mellitus type II, the Board observes that service connection for such conditions was denied in a final May 2013 rating decision. In relevant part, the Veteran filed an application in January 2015 to reopen his service connection claim for diabetes mellitus type II, as well as a new service connection claim for peripheral neuropathy of the lower extremities due to diabetes mellitus type II. The Veteran's service connection claims for diabetes mellitus type II and peripheral neuropathy of the bilateral lower extremities due to diabetes mellitus type II were denied in a final July 2015 rating decision. As it pertains to the current appeal, the Veteran submitted an application in July 2016 for entitlement to service connection for a prostate condition (claimed as enlarged prostate), and to reopen his service connection claim for diabetes mellitus type II and peripheral neuropathy of the bilateral lower extremities associated with diabetes mellitus type II. The Board adds that the Veteran did not perfect his appeal with respect to the service connection claims for tinnitus, bilateral hearing loss, and sleep apnea. See April 2019 VA Form 9. As such, those particular issues are not before the Board. With respect to the issues currently on appeal, both the current and prior service connection claims are based on the Veteran's assertion that he was exposed to herbicide agents in service. The Board observes that relevant service department records, which existed at the time of the prior final rating decisions, were newly associated with the claims file in March 2020. Such service department records contain additional information pertaining to the Veteran's ship and military duty assignments in service, which are relevant to his claimed exposure to herbicide agents. Therefore, notwithstanding the prior final rating decisions, and in light of the relevant service department records that were newly associated with the claims file in March 2020, the Board will reconsider the issues of entitlement to service connection for a prostate condition, diabetes mellitus type II, and peripheral neuropathy of the bilateral lower extremities associated with diabetes mellitus type II. 38 C.F.R. § 3.156(c). As noted above, the service connection claims currently on appeal are based on the Veteran's assertion that he was exposed to herbicide agents in service. The Veteran initially sought service connection for prostate cancer in November 2010, which is a condition that is presumptively associated with herbicide agent exposure under 38 C.F.R. § 3.309(e). Although the Veteran's July 2016 service connection claim was for "enlarged prostate," the Veteran indicated that he was diagnosed with and received VA treatment for prostate cancer in April 2019. See July 2016 VA Form 21-526EZ; see also April 2019 VA Form 9. The Board notes that the VA treatment records identified by the Veteran on his April 2019 VA Form 9 have not been associated with the claims file. With respect to the Veteran's service connection claim for diabetes mellitus type II such is also presumptively associated with herbicide agent exposure under 38 C.F.R. § 3.309(e). However, the current medical evidence of record does not document a diagnosis of diabetes mellitus, type II or associated diabetic peripheral neuropathy. A February 2013 VA pulmonary consult indicated that the Veteran "has been flirting with diabetes; although, his A1Cs are under 6." On remand, the Veteran should be provided an opportunity to submit additional medical evidence pertaining to his service connection claims involving diabetes mellitus type II. Additionally, as noted above, the VA treatment records identified by the Veteran on his April 2019 VA Form 9 have not been associated with the claims file. Turning to the Veteran's assertion that he was exposed to herbicide agents in service, the service department records newly associated with the claims file in March 2020 contain detailed information concerning the Veteran's military assignments and occupational duties. Following the Veteran's initial training and technical school to become an Aircraft Mechanic, he was transferred for assignment with Attack Squadron 27 (ATKRON 27) aboard the USS Enterprise. Travel records indicate that the Veteran departed the United States by aircraft in November 1972, and arrived in Subic Bay, Philippines, on November 11, 1972. It appears that the Veteran departed from Subic Bay on the USS Racine on November 18, 1972, and was then transported via the USS Flint to his final destination with ATKRON 27 on board the USS Enterprise. The Veteran commenced continuous sea duty on board the USS Enterprise on November 20, 1972. In April 1973, the Veteran was designated as a Line Division Plane Captain of the A-7E aircraft. The Veteran's duties involved inspections, preparation of aircraft, cleanliness and prevention of corrosion, fueling and defueling of aircraft, and brake riding ashore and afloat. On June 17, 1973, the Veteran reported on board the USS Midway. The Veteran's military duties consisted of repair, build-up, break-down, and testing of J79, TF30, and J52 jet engines. Additionally, the Veteran's duties aboard the USS Midway included security patrol and duty messenger. In November 1973, the Veteran was transferred from the USS Midway located at Yokosuka, Japan, to the United States for separation from service. While not consistent with the evidence documented in service department records, the Veteran reported that he was transported to the USS Enterprise via the Benewah (APB-35). See February and April 2015 VA Form 21-4138; see also April 2022 Board hearing transcript. Alternatively, the Veteran reported that he was also on board the USS Bainbridge during service. See April 2022 Board hearing transcript. To date, it does not appear that the agency of original jurisdiction (AOJ) has attempted to determine whether the Veteran had service, to include qualifying offshore service as defined in 38 U.S.C. § 1116A(d), in the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Additionally, during the April 2022 Board hearing, the Veteran testified that he believed C-123 aircraft were among the aircraft in ATKRON 27. See also May 2013 VA examination (Veteran indicated his belief that the planes he serviced in the United States Navy were dropping Agent Orange). In light of the above, the Board finds remand is necessary for VA to fulfill its duty to assist. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file, to specifically include all records identified on the Veteran's April 2019 VA Form 9. 2. Afford the Veteran an opportunity to submit any additional evidence in support of his current appeal, to include any records of private care. Invite the Veteran to submit release forms to authorize VA to obtain private treatment reports on his behalf. Take all appropriate steps to obtain identified records. 3. Undertake all necessary actions to determine whether the Veteran had service, to include qualifying offshore service as defined in 38 U.S.C. § 1116A(d), in the Republic of Vietnam. Such action may include obtaining and reviewing the deck logs, cruise history, and command history for the following: USS Racine from November 18-20, 1972 USS Flint on November 20, 1972 Benewah (APB-35) for November 1972 USS Bainbridge from November 1972 to May 1973 USS Enterprise from November 20, 1972, to May 14, 1973 USS Midway from June 17, 1973, to November 19, 1973. Any development should specifically address whether any of the above Naval ships were within the 12-nautical mile radius as defined in 38 U.S.C. § 1116A(d) at the time of the Veteran's service. 4. Undertake all necessary actions to determine whether the Veteran served under circumstances in which he regularly and repeatedly operated, maintained, or served on board aircraft known to have been used to spray an herbicide agent during the Vietnam era. 5. After the above development and any other development deemed necessary by receipt of new evidence, readjudicate the appeal. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and inform the Veteran of his appeal options. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.