Case A22017322

CAROLE R. KAMMEL · 2022 · Case ID: A22017322

MIXED

Summary

The Veteran, a Navy veteran who served from September 1964 to July 1968, including service in Southeast Asia during the Vietnam War, appeals the denial of service connection for other specified trauma- and stressor-related disorder (OSTSRD), tinnitus, and diabetes mellitus, as well as the denial of an earlier effective date for his OSTSRD claim. The Board denied the earlier effective date claim, finding no basis for an award prior to May 29, 2019, the date of the Veteran's initial claim. The case was remanded for further development and review of the OSTSRD claim due to conflicting medical evidence regarding symptom severity and occupational/social impairment, including the presence of suicidal ideation. The Board found the January 2020 VA examination inadequate for failing to reconcile conflicting reports and address the Veteran's lay statements about noise exposure and combat. A new VA opinion is required to clarify the severity of OSTSRD symptoms and the etiology of tinnitus. The diabetes claim was remanded due to a duty to assist error concerning the verification of the Veteran's claimed herbicide exposure, as VA memoranda lacked the necessary signatures to confirm or deny exposure. The Board noted that while direct herbicide exposure claims are not presumed for servicing aircraft, exposure may still be established on a facts-found basis. The TDIU claim was remanded as it is intertwined with the OSTSRD and diabetes claims.

Rationale

Conflicting medical opinions regarding symptom severity and impairment.; Inadequate VA examination for failing to reconcile conflicting reports.; Need for VA opinion on current severity, including suicidal ideation.

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

220506-243488

Full Decision Text

Citation Nr: A22017322
Decision Date: 08/30/22 Archive Date: 08/30/22

DOCKET NO. 220506-243488
DATE: August 30, 2022

ORDER

Entitlement to an effective date earlier than May 29, 2019 for the award of service connection for other specified trauma-and-stressor-related disorder (OSTSRD) is denied.

REMANDED

Entitlement to a disability rating in excess of 30 percent for OSTSRD is remanded.

Entitlement to service connection for tinnitus is remanded.

Entitlement to service connection for diabetes mellitus, to include as secondary to herbicide exposure, is remanded.

Entitlement to an evaluation of total disability on the basis of individual unemployability (TDIU) due to service-connected disabilities is remanded.

FINDING OF FACT

VA received the Veteran's VA Form 21-0966, Intent to File a Claim for Compensation (ITF) on May 29, 2019, and a subsequent VA Form 21-526EZ, Application for Disability Compensation (initial claim) claiming entitlement to service connection for post-traumatic stress disorder (PTSD) on November 1, 2019; prior to May 29, 2019, there were no previously-filed claims, nor pending communications that could be construed as a claim, for service connection for OSTSRD, PTSD, or any other comparable disability.

CONCLUSION OF LAW

The criteria for entitlement to an effective date earlier than May 29, 2019 for the award of service connection for OSTSRD have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from September 1964 to July 1968, including service in Southeast Asia during the Vietnam War, with additional service in the United States Naval Reserve.

These matters come to the Board of Veterans' Appeals (Board) on appeal from March 2020 and October 2021 rating decisions issued by a VA Regional Office (RO). Therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1).

Preliminary Matters

By way of background, the March 2020 rating decision denied the Veteran's claims for service connection for other specified trauma- or stressor-related disorder (OSTSRD), tinnitus, and diabetes; the Veteran submitted a timely VA Form 20-0966, Decision Review Request: Higher-Level Review (HLR request) in February 2021. In a May 2021 rating decision with considered the evidence of record at the time of the prior March 2020 rating decision, the agency of original jurisdiction (AOJ) granted the Veteran's claim for entitlement to service connection for OSTSRD, with a 30 percent evaluation effective from May 29, 2019; denied his claim for entitlement to service connection for tinnitus; and identified a duty to assist error with respect to his claim for entitlement to service connection for diabetes, for which additional development and readjudication was ordered. The Veteran's diabetes claim was then regarded as a supplemental claim and subsequently denied in an October 2021 rating decision.

The Veteran submitted a timely VA Form 10182, Decision Review Request: Board Appeal (NOD) in May 2022, in which he indicated that he was electing the Evidence Submission docket and appealing the evaluation and effective date assigned for his service-connected OSTSRD as well as the denials of his tinnitus and diabetes claims. He further noted that, relative to his OSTSRD appeals, he also sought entitlement to an evaluation of total disability on the basis of individual unemployability (TDIU) due to service-connected disabilities.

Therefore, with respect to the Veteran's OSTSRD, tinnitus, and TDIU claims, the Board may only consider the evidence of record at the time of the March 2020 rating decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the NOD. 38 C.F.R. § 20.303. With respect to the Veteran's diabetes claim, the Board may only consider the evidence of record at the time of the November 2021 decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the NOD. Id.

Additionally, with respect to the October 2021 rating decision, the Board notes that the RO did not make specific favorable findings as to
, the Board may only consider the evidence of record at the time of the March 2020 rating decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the NOD. 38 C.F.R. § 20.303. With respect to the Veteran's diabetes claim, the Board may only consider the evidence of record at the time of the November 2021 decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the NOD. Id.

Additionally, with respect to the October 2021 rating decision, the Board notes that the RO did not make specific favorable findings as to whether new and relevant evidence had been obtained sufficient to readjudicate the Veteran's claim on the merits. However, the substance of the rating decision plainly indicates that the Veteran's claim for entitlement to service connection for diabetes was considered on the merits. See generally 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). In particular, additional development was undertaken by the AOJ pursuant to the May 2021 rating decision's finding that a duty to assist error had been identified, and the RO relied on evidence obtained through this additional development to readjudicate and deny the Veteran's claim on the merits. Accordingly, the Board finds that the RO determined that new and relevant evidence had been received, that this determination was a favorable finding implicitly included in the October 2021 decision on appeal, and that it need not further consider the question of whether new and relevant evidence was received.

Earlier Effective Dates for Awards of Service Connection

Generally, the assignment of effective dates of awards is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection, or for an increase of compensation "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). This means that the effective date of an award of service connection or for increased compensation "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. The date of receipt is the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r).

For direct service connection, benefits will be awarded effective the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, on the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). A specific claim, in the form prescribed by VA, must be filed in order for benefits to be paid to any individual. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).

A claimant may also indicate their desire to file a claim for benefits by submitting to VA an ITF, which must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt, VA will furnish the claimant with the appropriate application form. If VA receives a complete application form appropriate to the benefit sought within 1 year of receipt of the ITF, VA will consider the complete claim filed as of the date the ITF was received. 38 C.F.R. § 3.155(b); see 38 C.F.R. § 3.160(a) (defining the requirements for a claim to be considered complete).

1. Entitlement to an effective date earlier than May 29, 2019 for the award of service connection for other specified trauma- and stressor-related disorder (OSTSRD) is denied.

The Veteran seeks an effective date earlier than May 29, 2019 for the award of service-connection for OSTSRD. The Veteran has not asserted any specific basis upon which he believes that an earlier effective date for his OSTSRD is warranted.

Here, a complete claim was received on November 1, 2019, within one year from the date of the Veteran's May 29, 2019 ITF. Therefore, May 29, 2019 may properly be recognized as the date the complete claim was filed for compensation purposes. The Board notes that no submissions of any kind were received by VA pertaining to the Veteran's claim for entitlement to service connection for PTSD (now characterized as OSTSRD) nor, indeed, for any other claim or related purpose prior to May 29, 2019.

The Board also notes that, beyond stating in
has not asserted any specific basis upon which he believes that an earlier effective date for his OSTSRD is warranted.

The Board also notes that, beyond stating in his May 2022 NOD that he was appealing both the evaluation and the effective date assigned for OSTSRD in the May 2021 rating decision, the Veteran has submitted no evidence, and advanced no arguments, supporting an earlier effective date. Although the Veteran's representative submitted an appellate brief as well as a VA Form 21-4138, Statement in Support of Claim (SISOC) from the Veteran, the only indication of the Veteran's intent to appeal the effective date assigned for OSTSRD was its mention on the May 2022 NOD. In the subsequent May 2022 appellate brief, the Veteran's representative identified only an increased rating for OSTSRD as on appeal, and neither the representative's brief nor the Veteran's SISOC indicated that he was seeking, or argued that he was entitled to, an earlier effective date.

As noted above, the effective dates of awards for direct service connection are the later of either the date entitlement arose, or either the day following separation from service (if claimed within one year of separation) or the date of receipt of the claim (if filed more than one year after separation), whichever is later. See 38 C.F.R. § 3.400(b)(2). May 29, 2019 is the date on which VA received the Veteran's ITF, and is considered the date of receipt of claim following his submission of a complete claim within a year thereafter; by law, there is no plausible basis upon which the Veteran can be awarded an effective date earlier than May 29, 2019. See id; 38 C.F.R. § 3.155(b). Further, the Veteran filed no formal or informal claim prior to May 29, 2019, which was more than a year following his separation from service.

Accordingly, the Board finds no basis on which to grant an effective date earlier than May 29, 2019 for the Veteran's award of service connection for OSTSRD. The appeal is denied.

REASONS FOR REMAND

1. Entitlement to a disability rating in excess of 30 percent for OSTSRD is remanded.

The Board finds that remand is required to correct a pre-decisional duty to assist error with respect to the adequacy of the medical evidence of rating the Veteran's service-connected OSTSRD. Specifically, the Board finds that the medical evidence is unclear as to the severity of the Veteran's OSTSRD, its symptoms, and their associated occupational and social impairment, and that remand is required to obtain a VA opinion which reconciles the evidence of record.

The Veteran contends that his OSTSRD is manifested by symptoms in excess of those contemplated by the 30 percent evaluation currently assigned. In particular, the Veteran asserts that he experiences symptoms at least as severe as those contemplated by a 70 percent evaluation, including severe anxiety, frequent irritability, and near-daily suicidal ideation, producing occupational and social impairment with deficiencies in most areas.

The Veteran began receiving private psychiatric counseling in August 2019. An August 2019 private intake note indicates that the Veteran had diagnoses of post-traumatic stress disorder and adjustment disorder with anxiety as defined under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The Veteran's PTSD symptoms included hypervigilance, anxiety, panic attacks, poor concentration, interrupted sleep, and alcohol use.

In a September 2019 private therapy progress note, the Veteran endorsed having, over the preceding two weeks, problems with energy, restlessness, suicidal ideation or thoughts of self-harm, irritability nearly every day; interest, anxiety, uncontrollable worrying, widespread worrying, trouble relaxing, and fear of something awful happening more than half the days; and mood, appetite, self-esteem, and concentration several days.

In October 2019, the Veteran's private therapist completed a PTSD disability benefits questionnaire (DBQ) structured in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The private therapist provided diagnoses of PTSD and of adjustment disorder with anxiety, describing the PTSD as the "primary concern" and the cause of poor sleep, flashbacks, hypervigilance, and heightened emotions for the Veteran. The therapist indicated that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. They noted that the Veteran exhibited hypervigilant behavior and discomfort with confined spaces, and that he also experienced recurrent distressing dreams, sleep disturbance, an exaggerated startle response, anxiety, suspiciousness, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work-like setting. The therapist stated that the Veteran's symptoms had "reduced some" over time, but were still impacting his health.

The Veteran was afforded a VA PTSD examination in January 2020. The VA examiner provided a diagnosis of OSTSRD, which they indicated produced symptoms which were "not severe enough either to interfere with occupational and social functioning or to require continuous medication[.]" She indicated that the Veteran experienced recurrent, involuntary, and intrusive distressing memories of his trauma as well as psychological distress at exposure to reminders; sought to avoid internal or external reminders of his trauma; had persistent distorted cognitions and negative emotional state; exhibited irritable behavior, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance; and also experienced depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner reported that the Veteran reported feeling "down[,]" with a tearful affect, but denied any suicidal or homicidal ideation.

An evaluation was performed in March 2022 by a private psychologist, along with a PTSD DBQ. The psychologist provided diagnoses of OSTSRD and alcohol use disorder in early remission, the latter secondary to the former, pursuant to the DSM-5. The Veteran stated that he had no difficulty completing activities of daily living and no impairment of his ability to maintain personal hygiene. The Veteran reported experiencing symptoms characterized by the psychologist as hypervigilance, nightmares, physiological reactivity, restricted affect, avoidance and social withdrawal, irritability, low mood, problems with memory and concentration, chronic sleep impairment, and ongoing negative beliefs and emotions regarding his in-service trauma. The private psychologist also indicated that the Veteran exhibited depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships or adapting to stressful circumstances. The Veteran reported that his symptoms began during service, that they had been chronic and severe, and that he had not had substantial employment since 2005 due to his symptoms. The private psychologist opined that the Veteran's psychiatric symptoms were consistent with occupational and social impairment with deficiencies in most areas, and had been that severe since at least the date of his claim.

The Board finds that remand is required to correct a pre-decisional duty to assist error with respect to the adequacy of the medical evidence in evaluating the service-connected OSTSRD. Specifically, the Board finds that the medical evidence is unclear as to the severity of the Veteran's OSTSRD, its symptoms, and their associated occupational and social impairment, and that remand is required to obtain a VA opinion which reconciles the evidence of record. In particular, the Board notes that the Veteran reported to his private therapist that he experienced suicidal ideation and thoughts of self-harm "nearly every day" in September 2019, but that in the PTSD DBQ completed only the following month by the same therapist, no suicidal ideation whatsoever was indicated, and he exhibited only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Other comparatively severe symptoms, such as "uncontrollable worrying," were also absent in the October 2019 PTSD DBQ. Furthermore, despite finding that the Veteran experienced several symptoms not indicated by the October 2019 private therapist, including depressed mood, distorted cognitions, and chronic sleep impairment, the January 2020 VA examiner found that the Veteran exhibited a less severe degree of impairment indeed, that his symptoms were not severe enough
arm "nearly every day" in September 2019, but that in the PTSD DBQ completed only the following month by the same therapist, no suicidal ideation whatsoever was indicated, and he exhibited only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Other comparatively severe symptoms, such as "uncontrollable worrying," were also absent in the October 2019 PTSD DBQ. Furthermore, despite finding that the Veteran experienced several symptoms not indicated by the October 2019 private therapist, including depressed mood, distorted cognitions, and chronic sleep impairment, the January 2020 VA examiner found that the Veteran exhibited a less severe degree of impairment indeed, that his symptoms were not severe enough to interfere with his occupational or social functioning. In contrast, the March 2022 private psychologist indicated much more significant symptoms, including impaired judgment and memory loss, and that the Veteran exhibited occupational and social impairment with deficiencies in most areas.

The Board notes its obligation to give serious consideration to any evidence of suicidal ideation, the presence of which, on its own, can potentially warrant a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) ("the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas."). Moreover, VA is obligated to obtain an adequate VA examination. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence [...] is essential for a proper appellate decision").

Accordingly, the Board finds that remand is warranted to obtain an adequate VA medical opinion regarding the current severity of the Veteran's OSTSRD, including whether suicidal ideation is a current symptom thereof. Any discrepancy in symptoms reported in the examination record should be clarified to the extent possible.

2. Entitlement to service connection for tinnitus is remanded.

The Board finds that remand is required to correct a pre-decisional duty to assist error with respect to the adequacy of a January 2020 VA examiner's opinion that addressed the etiology of the Veteran's tinnitus.

The Veteran contends that he experiences tinnitus which began during active service; specifically, he asserts that he experiences tinnitus due to his work as a radar technician, during which he mostly was not afforded hearing protection, and due to his experience serving aboard the U.S.S. FORRESTAL.

The Veteran was afforded a VA hearing loss and tinnitus examination in January 2020. The VA examiner indicated that the Veteran's military occupational specialty (MOS) was aviation electronic technician, which had a "[m]oderate probability" of having been exposed to hazardous noise. She noted the Veteran's report of constant, recurrent tinnitus bilaterally. The examiner stated that the Veteran's tinnitus "began from no specific triggering event and has existed for many years[,]" and that it was most noticeable when his surroundings were quiet. The VA examiner opined that the Veteran's tinnitus was less likely than not caused by a result of military noise exposure, reasoning that "[t]he onset of tinnitus was not dated to active duty service" and that the Veteran's service treatment records did not reflect in-service complaints of tinnitus.

The Board finds the January 2020 VA examination inadequate, another pre-decisional duty to assist error. In a November 2019 Statement in Support of Claim, the Veteran reported having served as a "radar technician aboard EA2 aircraft, most of the time without any hearing protection." The Veteran also stated that he believed he experienced noise exposure when multiple explosions occurred during his service aboard the U.S.S. FORRESTAL, during which he was continually fighting the resulting fires. However, the VA examiner stated that the Veteran reported experiencing no specific triggering event and that his tinnitus was "not dated to active duty service[,]" despite the Veteran's lay statements describing performing duties for which he did not receive hearing protection and describing multiple explosions aboard his ship. The Veteran is competent to report the onset and continuity of his tinnitus, as well as those events of which he has actual knowledge, such as experiencing significant noise exposure due to serving without hearing protection or to multiple on-board explosions. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address the Veteran's lay evidence, and the Board does not find the veteran not credible or not competent to offer that lay evidence, a new examination is needed); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a veteran is competent to report on that
not receive hearing protection and describing multiple explosions aboard his ship. The Veteran is competent to report the onset and continuity of his tinnitus, as well as those events of which he has actual knowledge, such as experiencing significant noise exposure due to serving without hearing protection or to multiple on-board explosions. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address the Veteran's lay evidence, and the Board does not find the veteran not credible or not competent to offer that lay evidence, a new examination is needed); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (a lay witness is competent to attest to factual matters of which he or she has first-hand knowledge).

Moreover, the examiner failed to identify what, in the absence of the Veteran's in-service noise exposure, was the likely or even a possible cause of his tinnitus. Notably, the Veteran reported in his May 2022 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability (TDIU claim), that his most recent occupation was as a building manager; while the Board does not make any presumptions about the Veteran's post-service occupational noise exposure, it appears that the January 2020 VA examiner entirely failed to discuss, or even to have attempted to elicit information regarding, likely sources of noise exposure to which his tinnitus (or hearing loss, which was also diagnosed at the time) could be etiologically attributed. While an inconclusive medical opinion is not per se inadequate, the examiner also failed to determine that it would not be possible to determine the cause of the Veteran's tinnitus without speculation. In other words, if the VA examiner was unable to provide an opinion as to etiology without resorting to speculation, they did not explain that this was the case, nor what evidence was lacking without which they could not provide such an opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010) (explaining that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion"). Absent discussion of the Veteran's likely noise exposure over time, including any potential occupational, recreational, or other pre-, in-, or post-service sources of noise, the Board finds that the January 2020 examiner's opinion was inadequate.

Additionally, the Veteran submitted a statement in May 2022 asserting that he "slept just beneath the flight deck in cramped and noisy quarters[,] registering every flight[,] take[-]off[,] and landing." On remand, the VA examiner must also consider this lay evidence of experiencing loud noise from frequent aircraft take-offs and landings aboard the U.S.S. FORRESTAL.

In remanding the Veteran's claim to obtain a new VA opinion which considers his lay statements, the Board is mindful of the impact of implicit credibility determinations in remand orders. See Smith v. Wilkie, 32 Vet. App. 332 (2020). The Board does not, at this time, make any determinations regarding the credibility of any evidence currently of record, to include the evidence described in this remand.

3. Entitlement to service connection for diabetes, to include as secondary to herbicide exposure, is remanded.

The Board finds that VA's failure to appropriately confirm and approve its apparent findings regarding the Veteran's herbicide exposure is a pre-decisional duty to assist error, and remand is thus required to ensure that the Veteran's potential herbicide exposure during service is properly investigated and that the conclusion reached is confirmed appropriately.

The Veteran contends that his diabetes is due to herbicide exposure during his active-duty service. Specifically, the Veteran contends that he was exposed to Agent Orange while serving aboard the U.S.S. FORRESTAL, during which he "serviced the radar components outside and deep within the bodies of planes flying missions to Vietnam," including that he "made physical contact with the outer and inner surfaces of planes likely covered with Agent Orange as they returned from missions in Vietnam."

Following investigations into the location of the U.S.S. FORRESTAL during the Veteran's assignment there, VA researchers were unable to locate evidence supporting that the ship, and thus the Veteran, were presumptively exposed to herbicides by virtue of being present within the twelve-nautical-mile territorial waters of the Republic of Vietnam. In two August 2021 VA memoranda, the AOJ found that
contends that he was exposed to Agent Orange while serving aboard the U.S.S. FORRESTAL, during which he "serviced the radar components outside and deep within the bodies of planes flying missions to Vietnam," including that he "made physical contact with the outer and inner surfaces of planes likely covered with Agent Orange as they returned from missions in Vietnam."

Following investigations into the location of the U.S.S. FORRESTAL during the Veteran's assignment there, VA researchers were unable to locate evidence supporting that the ship, and thus the Veteran, were presumptively exposed to herbicides by virtue of being present within the twelve-nautical-mile territorial waters of the Republic of Vietnam. In two August 2021 VA memoranda, the AOJ found that exposure to herbicides could not be conceded as the evidence of record did not show that the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in eligible offshore waters.

Both memoranda emphasized that, if VA was unable to concede herbicide exposure, an additional signature of concurrence was required from a Records Research Specialist. However, neither memorandum was signed either by the minimum requisite "BWN Employee", or by a Records Research Specialist.

Given the absence of the requisite signatures, the Board is unable to determine whether the evidence of record is sufficient to show that the Veteran was not present within the "blue water" territorial waters of Vietnam during his service. In particular, the Board cannot be certain that VA properly followed its own procedures to formally verify the Veteran's potential in-service herbicide exposure (or lack thereof), including that the memorandum or memoranda reaching such a conclusion were reviewed by the required personnel with specialized training. VA's failure to appropriately confirm and approve its apparent findings regarding the Veteran's herbicide exposure is a pre-decisional duty to assist error, and remand is thus required to ensure that the Veteran's potential herbicide exposure during service is properly investigated and that the conclusion reached is confirmed appropriately.

Additionally, the Board notes that the Veteran's theory of exposure via frequent direct physical contact with aircraft flying into and out of Vietnam, including aircraft potentially "covered in Agent Orange[,]" has not yet been developed. Upon remand, additional development should be undertaken to adequately assess the likelihood that the Veteran would have been exposed to herbicides through direct contact with aircraft returning from Vietnam.

The Board acknowledges that, while herbicide exposure may be conceded for certain veterans who served on the ground in Vietnam or certain locations in Thailand, who served in the "brown water" or "blue water" of Vietnam, or who served aboard aircraft tasked with spraying herbicides, no statutory presumption exists for veterans who serviced aircraft flying into or out of Vietnam, regardless of the purpose of their flights or the claimed frequency of volume of contact with their inner and outer surface. See, e.g. 38 C.F.R. §§ 3.307(a)(6)(iii, v). Nevertheless, the Board notes that, even where herbicide exposure cannot be conceded on a presumptive basis, it may still be established on the basis of facts found, and the Veteran may be entitled to service connection for his diabetes accordingly. As such, upon remand, additional development of the Veteran's claim should also be undertaken to address whether exposure to herbicides can be established based on the particular facts of his service.

4. Entitlement to an evaluation of total disability on the basis of individual unemployability (TDIU) due to service-connected disabilities is remanded.

The Veteran's claim for a TDIU is inextricably intertwined with the resolution of the rating assigned for his OSTSRD disability, as well as the outcome (including potential disability ratings) of his claims for service connection for tinnitus and diabetes. Therefore, and in the interest of judicial economy, it must also be remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009); see also 38 C.F.R. § 20.802(a) (the Board may remand if the correction of error would have a reasonably possibility of aiding in substantiating the appellant's claim).

The matters are REMANDED for the following action:

1. Take appropriate steps to establish whether the Veteran's claimed in-service herbicide exposure can be conceded on the basis of his service aboard the U.S.S. FORRESTAL, including whether he was present anywhere within the twelve-nautical-mile "blue water" territorial waters of the Republic of Vietnam. If additional details are needed, contact the Veteran to request the necessary information.

Once VA determines whether exposure to herbicides can or cannot be conceded based on the location of the Veteran's duty, issue a formal finding of the conclusion reached, ensuring that any related memorandum is appropriately reviewed and signed by the requisite personnel, and associate that finding with the Veteran's claims file.

2. After the completion of step 1,
ANDED for the following action:

2. After the completion of step 1, and only if herbicide exposure could not be conceded, take appropriate steps to establish whether the Veteran's claimed in-service herbicide exposure can be confirmed on a facts-found basis given the nature of his service, to include the duties associated with his MOS, his description of having regular frequent contact with the exterior and interior surfaces of United States Navy aircraft "covered in Agent Orange" flying missions over Vietnam, or any other relevant factors. If additional details are needed, contact the Veteran to request the necessary information.

Once VA determines whether exposure to herbicides can or cannot be confirmed on a facts-found basis, issue a formal finding of the conclusion reached, ensuring that any related memorandum is appropriately reviewed and signed by the requisite personnel, and associate that finding with the Veteran's claims file.

3. Obtain an addendum medical opinion from an appropriate VA examiner as to the severity of the Veteran's service-connected OSTSRD. The necessity of an in-person examination is left to the discretion of the examiner. The entire claims file, as well as this remand, should be made available to the examiner.

The examiner is asked to completely review the claims file, to provide a full description of the Veteran's disability, to discuss all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, and in particular to reconcile, to the extent possible, the conflicting reports as to the severity of the Veteran's symptoms, especially whether the Veteran has exhibited suicidal ideation during the period on appeal and the overall level of social and occupational impairment attributable to his service-connected OSTSRD. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms.

4. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of his claimed bilateral tinnitus. The entire claims file, as well as this remand, should be made available to the examiner. The examiner is asked to completely review the claims file, and to provide a diagnosis and full description of any disabilities identified.

The clinician is asked to provide an opinion to the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral tinnitus had its onset during his service, was manifested to a compensable degree within a year of service discharge, or is otherwise related to service?

Additionally, the examiner is asked to opine, to the extent possible, on the etiology of the Veteran's bilateral tinnitus in particular, whether it can be attributed to his active duty service or, if not, to some other cause, to include any post-service social, occupational, or recreational noise exposure.

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In particular, the examiner is directed to the Veteran's lay reports of having usually been afforded no hearing protection and of having been exposed to loud noise due to the proximity of his quarters to the flight deck and due to the explosions that occurred aboard the U.S.S. FORRESTAL during his service. The examiner is also asked to consider the likely or probable noise exposure experienced by a veteran with his MOS (aviation electronic technician).

Carole R. Kammel

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board David A. F. Litvak

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.

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