Citation Nr: 1235937 Decision Date: 10/17/12 Archive Date: 10/23/12 DOCKET NO. 10-06 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, including as due to exposure to herbicides. 2. Entitlement to service connection for a skin disorder, including as due to exposure to herbicides. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran served in the Alabama Army National Guard from June 1960 to August 1991. During that period of time, he served on active duty in June 1963, in September 1963, from January 1990 to April 1990, and from February 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In an April 2009 rating decision, the RO denied service connection for type II diabetes mellitus, a skin disorder, and bilateral hearing loss. The Veteran disagreed with that rating decision in its entirety and perfected an appeal to the Board in January 2010. By rating decision issued in August 2011, however, the RO granted service connection for bilateral hearing loss. Consequently, that issue is no longer on appeal to the Board. In addition, by rating decision issued in July 2010, the RO denied service connection for peripheral neuropathy for the upper and lower extremities, as well as for erectile dysfunction and PTSD. It also denied service connection for a mental illness for the purpose of establishing eligibility to treatment. In August 2010, the Veteran filed a Notice of Disagreement as to the RO's denial of service connection for peripheral neuropathy in all the extremities, erectile dysfunction, and PTSD; however, he perfected an appeal to the Board only as to the issue of service connection for PTSD (see August 2011 VA Form 9). Consequently, the Board does not have jurisdiction to consider the claims for service connection for peripheral neuropathy in all the extremities and erectile dysfunction. The Veteran has claimed service connection for PTSD. Construing the claim liberally, however, the Board finds that it should be characterized as one for service connection for a psychiatric disorder, to include PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order) (it is the responsibility of the Board to consider alternate current conditions within the scope of the claim). The issue is thus restated on the title page of this decision. The Veteran appeared and testified at a Board videoconference hearing held before the undersigned Veterans Law Judge in March 2012. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The remaining service connection claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's type II diabetes mellitus is more likely than not associated with exposure to herbicides while he was serving on active duty for training (ADT) at Fort Gordon, Georgia, from July 24, 1967 to August 4, 1967. CONCLUSION OF LAW Service connection for type II diabetes mellitus is warranted. 38 U.S.C.A. §§ 101, 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for type II diabetes mellitus, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. The Veteran claims that he should be granted service connection for his type II diabetes mellitus on the basis of exposure to herbicides such as Agent Orange and Agent Blue while serving at Fort Gordon, Georgia, in 1967. The available service records demonstrate that the Veteran served on a period of ADT from July 24, 1967 to August 4, 1967, at Fort Gordon to attend the Signal Officer Career Course (Phase II). In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue, unless there is affirmative evidence to establish that the disease is due to an intercurrent injury or disease. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.307(d)(1), 3.309(e). A veteran who, during active service, served in the Republic of Vietnam during the Vietnam era 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); 38 C.F.R. § 3.307(e)(6)(iii). Furthermore, a veteran who, during active service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv). Type II diabetes mellitus has been recognized as a disease that is associated with herbicide exposure. See 38 C.F.R. § 3.309(e). For presumptive service connection to be warranted, the herbicide-related disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The appellant in this case is a "veteran" based on his active duty in June 1963, in September 1963, from January 1990 to April 1990, and from February 1991 to March 1991. Therefore, he is entitled to "veteran" status and the full benefit of VA resources for any compensation claim based on those periods of active duty. The Board notes, however, that the available service treatment records do not demonstrate that the onset of the Veteran's type II diabetes mellitus was during any of these periods of active duty, nor is there evidence of record relating his type II diabetes mellitus to any of these periods of active duty. Furthermore, the Board notes that the Veteran did not serve in the Republic of Vietnam or in Korea during the applicable periods such that he may be presumed to have been exposed to herbicides and, therefore, be entitled to presumptive service connection for his type II diabetes mellitus. See 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). Rather, the service records show that he never served in the Republic of Vietnam and that he served in Korea in 1986, 1989 and 1990, many years after the applicable time period for being presumed to have been exposed to herbicides during such service. Further, post-service medical evidence shows that the Veteran was diagnosed to have type II diabetes mellitus in 2008, approximately 17 years after his discharge from the National Guard. Consequently, to the extent the Veteran's claim is not based on those periods of active duty, he must attain "veteran" status for the purposes of his National Guard service in order to be eligible for service connection for any injury or disease incurred or aggravated in the line of duty during that period of inactive service. See 38 U.S.C.A. §§ 101(2), 101(24), 1131; 38 C.F.R. § 3.1(d), 3.6(a); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). In order for him to achieve "veteran" status for his National Guard service and be eligible for service connection for a disability claimed to have been incurred during such service, the record must establish by a preponderance of the evidence that he was disabled during active duty for training due to a disease or injury incurred or aggravated in the line of duty or he was disabled from an injury incurred or aggravated during inactive duty training. See Mercado-Martinez v. West, 11 Vet. App. 419; Paulson v. Brown, 7 Vet. App. 470; Biggins v. Derwinski, 1 Vet. App. 478. The term "veteran" means "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2). The term "service-connected" means that a disability was incurred or aggravated in the line of duty during active military, naval, or air service. 38 U.S.C.A. § 101(16); 38 C.F.R. § 3.1(k). Active military, naval, or air service includes (1) active duty; (2) any period of ADT during which a veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (IADT) during which a veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Active duty for training includes full-time duty performed for training purposes by members of the National Guard of any State. 38 C.F.R. § 3.6(c). Therefore, in order for the Veteran to be entitled to service connection for his type II diabetes mellitus, he has to show that such disability is due to an injury or disease incurred or aggravated in the line of duty during a period of ADT or IADT. The Veteran claims that he was exposed to Agent Orange and Agent Blue while serving at Fort Gordon, Georgia, from July 24, 1967 to August 4, 1967. The service records show this was a period of ADT. The Board takes judicial notice that the Department of Defense (DoD) has provided information to VA confirming that spraying of in-house desiccants, mixtures and formulations (Orange and Blue) took place at Fort Gordon, Georgia, from July 15, 1967 to July 17, 1967. Thus, the Veteran arrived at Fort Gordon only one week after this spraying occurred. In June 2012, the Board sought a VHA medical expert opinion as to whether the Veteran was exposed to herbicides while serving at Fort Gordon just one week after confirmed spraying and, if so, the likelihood that his type II diabetes mellitus is related to such exposure. In September 2012, the Board received the VHA medical expert opinion. In this opinion, the VHA medical expert stated that reports from DoD show that the Veteran arrived in Georgia one week after Agent Orange spraying ended, which means the Veteran had been exposed to this compound while training in Georgia. The VHA medical expert then went on to opine that the likelihood that diabetes being caused by Agent Orange in this case is greater than a 50 percent probability. The reasoning for this opinion is that the evidence between Agent Orange exposure and later ramifications such as diabetes is not well defined. However, the Veteran weighed 199 pounds while in the service, and his beta cells were most likely able to compensate for any deleterious effects Agent Orange may have had. As he got older and gained weight (he was in his mid 60s and weighed 259 around time he was diagnosed), however, it is a possibility that his beta cells were no longer able to compensate as a result of harm from the Agent Orange, and the Veteran developed diabetes many years later. The VHA medical expert also indicated that he had consulted with a colleague of his who is a diabetologist who was in agreement with his opinion. Based on the evidence from DoD and the VHA medical expert's opinion, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran was exposed to herbicides (including Agent Orange and Agent Blue) while serving on ADT at Fort Gordon, Georgia, from July 24, 1967 to August 4, 1967, which constitutes an injury (see e.g., VAOPGCPREC 08-2001). The Board further finds that, based on the VHA medical expert's opinion, the preponderance of the evidence is in favor of finding that the Veteran's type II diabetes mellitus diagnosed in February 2008 is related to his exposure to herbicides in 1967. Consequently, the Board finds that the evidence establishes that the Veteran incurred bodily injury due to his exposure to herbicides while on ADT in 1967 and that such bodily injury is the etiology of his current type II diabetes mellitus. Accordingly, for the purposes of granting service connection for type II diabetes mellitus, the Board finds that veteran status is established for the period of ADT from July 24, 1967 to August 4, 1967, and that the Veteran has type II diabetes mellitus as a result of injury incurred during such service. For these reasons, the Board finds that service connection for type II diabetes mellitus is warranted, and the Veteran's appeal is granted. ORDER Entitlement to service connection for type II diabetes mellitus, as due to exposure to herbicides, is granted. REMAND The Board finds that remand of the Veteran's claims for service connection for a skin disorder and for a psychiatric disorder, to include PTSD, is warranted as additional development is needed prior to the Board adjudicating these claims. Skin Disorder At the Veteran's hearing before the Board in March 2012, he testified that his skin disorder is diagnosed as psoriasis and that he is treated by a private physician. Furthermore, VA treatment records in the claims file indicate the Veteran sees an outside dermatologist for treatment of dermatitis (see April 2011 Primary Care note). The Board further notes that the Veteran testified at his hearing that his skin disorder started in January 1968 and has been present ever since. The Board notes that the Veteran has not provided any treatment records relating to his claimed skin disorder or provided VA with a release to obtain any private treatment records. Evidence as to the onset and treatment of the Veteran's skin disorder is highly relevant to his claim for service connection. Consequently, it is necessary for the Veteran to identify for VA all private physicians who have treated him over the years for his skin disorder and to provide a signed release for each private physician identified so that VA may obtain these treatment records. In lieu of releases, the Veteran should be advised that he may provide these treatment records to VA himself. Furthermore, the Board finds that a VA examination is warranted to determine what current skin disorder the Veteran currently has and to obtain a medical opinion as to its etiology. The Board notes that the Veteran claims that his skin disorder is the result of exposure to Agent Orange and Agent Blue during a period of ADT at Fort Gordon, Georgia, from July 24, 1967 to August 4, 1967. As previously discussed in the decision above, DoD has confirmed that spraying of herbicides, to include Agent Orange and Agent Blue, occurred at Fort Gordon one week prior to the Veteran's period of ADT there. Furthermore, the Board has obtained a medical opinion that the Veteran was exposed to these herbicides during said period of ADT. Consequently, the medical etiology opinion must address whether the Veteran's current skin disorder is directly related to such exposure (no presumption of service connection is warranted in this case). Psychiatric Disorder (to Include PTSD) The Veteran claims that he has PTSD essentially as the result of two stressors that occurred while he served with the National Guard. Initially the Board notes that, although the Veteran claims he has PTSD, the VA treatment records in the claims file show diagnoses of depressive disorder, not otherwise specified, and rule out PTSD. The available treatment records, therefore, do not establish a diagnosis of PTSD. They do not, however, appear to be the complete record of the Veteran's mental health treatment as they only span treatment from January 2011 to February 2012 and as the first mental health treatment note from January 2011 is clearly for a follow-up visit. Consequently, on remand, a full record of the Veteran's mental health treatment at the VA Medical Center in Murfreesboro, Tennessee, should be obtained. As to the Veteran's alleged in-service stressors, the first stressor is claimed to have been incurred during a period of ADT at Fort Gordon, Georgia, from August to December of 1961 while the Veteran was undergoing training for the Pole Line Construction military occupational specialty (MOS). He has stated that, during this training, he witnessed multiple people falling off poles up to 60 feet tall and breaking bones in their arms and legs and breaking their backs. He also relates that, sometimes when a climber started to fall, he would wrap his arms and legs around the pole and hug the pole all the way to the ground. This resulted in wood splinters being imbedded in the face, arms, chin, neck, legs, stomach, chest and thighs of the climber. These people were taken to the hospital to remove these wood barbs. When these things happened, he heard the people's screams and saw blood and broken bones. He states that, still today, he hears and sees these things happening. The second stressor the Veteran relates is that, from October to November of 1987, while serving in Ecuador helping to build a bridge across the Holling River, he saw dead bodies floating down the river. Furthermore, although the Veteran has not stated that he was subject to hostile action while in Ecuador, he did testify at his Board hearing that "[w]here up in the mountain you daily imagine you could hear fighting, shooting going on. And it was not uncommon to see bodies floating down that river because that's the way they disposed of them was throw the body in the river." The Board notes that the Veteran's service records confirm that he was in Ecuador from October 2, 1987 to November 15, 1987. The claims file also contains the Order for the Veteran's service in Ecuador, which indicates that the type of his duty was ADT. The Board notes that, as shown in a July 2010 memorandum to the file, a formal finding of a lack of information required to corroborate stressor(s) associated with the Veteran's claim was made. However, the Veteran's diagnosis as seen in the VA treatment records is a depressive disorder, not otherwise specified. Service connection for such psychiatric disorder does not require verification of any in-service stressor. Furthermore, these treatment records demonstrate that the Veteran spoke of these two claimed stressor during his therapy sessions. Consequently, the Board finds that the RO should have considered whether the diagnosed depressive disorder, not otherwise specified, was service related and should have obtained a VA examination with a medical opinion to assist in development of the Veteran's claim. Such development has not, however, been done. In addition, the Board notes that, should a diagnosis of PTSD be confirmed by VA examination, it must be considered whether the PTSD is related to the Veteran's fear of hostile military or terrorist activity while in Ecuador under the recent changes to the regulations. See 38 C.F.R. § 3.304(f)(3). Under the recent amendments, lay evidence may establish an alleged stressor where: 1) the stressor is related to a veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor; 3) the stressor is consistent with the places, types, and circumstances of a veteran's service; and 4) there is no clear and convincing evidence to the contrary. Fear of hostile military or terrorist activity occurs where a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board on or after July 13, 2010. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). As such, they are applicable to this case. It appears that, in this case, the alleged stressor relating to the Veteran's time in Ecuador may be related to fear of hostile military or terrorist activity as defined in the new regulation. As such, a VA examination is also required to determine whether, if the Veteran has PTSD, it is the result of this alleged stressor. Also, the Veteran should be provided with a VA psychiatric examination. to determine what, if any, psychiatric disorder he currently has and whether it is related to any injury, disease, or event that was incurred in service. The examiner should also be advised that, if the Veteran is diagnosed with PTSD, he/she should render an opinion as to whether it is based on the Veteran's fear of hostile military or terrorist activity as defined in 38 C.F.R. § 3.304(f)(3) while he served in Ecuador in 1987. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all private physicians who have treated him since January 1968 for his skin disorder and to complete a release form for each identified private physician authorizing VA to obtain the Veteran's treatment records from that private physician. The Veteran should be advised that, in lieu of submitting completed release forms, he can submit these private medical treatment records to VA himself. If the Veteran provides completed release forms, then the medical records identified should be requested. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The Veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records. All such available records should be associated with the claims folder. 2. Associate with the claims file all of the Veteran's mental health treatment records from the VA Medical Center in Murfreesboro, Tennessee. All efforts to obtain VA records should be fully documented in the claims file. 3. Then, schedule the Veteran for the following VA examinations. The claims file must be provided to each examiner for review in conjunction with the examination, and such review should be noted in the examination report. Skin Examination - After reviewing the file and conducting any necessary testing, the examiner should render a diagnosis as to all current skin disorders found on examination. If any disorder is found, the examiner should than render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that each current skin disorder found on examination is related to any disease or injury incurred during a period of active duty or ADT, or whether it is related to any injury incurred during a period of IADT. Specifically, the examiner should be asked to render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any current skin disorder found on examination is the result of exposure to herbicides (including Agent Orange and Agent Blue) while the Veteran served on ADT from July 24, 1967 to August 4, 1967 at Fort Gordon, Georgia. The examiner should be advised that he should take as fact that the Veteran was exposed to herbicides during that period of ADT. For all opinions/conclusions reached, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to provide any requested opinion without resort to mere speculation, he or she must so state, and an explanation for such a finding must be provided. Psychiatric Examination - Arrange for a VA mental health examination with a VA or VA contract psychiatrist or psychologist. The purpose of the examination is to determine whether the Veteran has a psychiatric disability, to include PTSD, that had its onset or was aggravated during active service, or is a result of any incident of service. The claims file (including a copy of this remand) must be made available to the examiner. All indicated tests and studies must be performed, including psychological testing to ascertain whether the Veteran in fact experiences PTSD. A complete history of the Veteran's psychiatric symptoms should be obtained and set forth in the examination report. The examiner should provide a diagnosis for each psychiatric disorder found, and should include a specific finding as to whether the Veteran has PTSD. If PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's PTSD is related to the claimed in-service stressor of seeing dead bodies floating down a river while on ADT in Ecuador [or is otherwise linked to fear of hostile military or terrorist activity and is adequate to support a diagnosis of PTSD as set out under DSM IV], and, if so, whether the Veteran's symptoms are related to the claimed stressor. (For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho- physiological state of fear, helplessness, or horror.) If any psychiatric disability other than PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such psychiatric disorder is related to any injury, disease, or event incurred in service. For all opinions/conclusions reached, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to provide any requested opinion without resort to mere speculation, he or she must so state, and an explanation for such a finding must be provided. 4. Thereafter, the claims remaining on appeal [service connection for a skin disorder, to include as a result of exposure to herbicides, and service connection for a psychiatric disorder, to include PTSD] should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2011). He has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs