Citation Nr: 0810248 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-02 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for Type II diabetes mellitus, claimed as the residual of exposure to Agent Orange. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, a dysthymic disorder, and depression. 3. Entitlement to service connection for irritable bowel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from June 1968 to August 1978, with service in Thailand from January to November 1970. Pertinent evidence of record is to the effect that, based on the veteran's service in Thailand, he was awarded the Vietnam Service Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal of November 2002, September 2005, and January 2006 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), which reversed a decision of the Board of Veterans' Appeals (Board) which denied service connection for disabilities claimed as the result of exposure to herbicides. VA disagrees with the Court's decision in Haas, and is seeking to have this decision appealed to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and the unnecessary expenditure of resources through remand or final adjudication of claims based on Court precedent which might ultimately be overturned on appeal, on September 1, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure (such as the veteran's claim for service connection for Type II diabetes mellitus) in which the only evidence of exposure is receipt of the Vietnam Service Medal (as in this case), or service on a vessel off the shore of Vietnam. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed will be resumed. Finally, for reasons which will become apparent, the appeal as to the issues of service connection for an acquired psychiatric disorder (to include post-traumatic stress disorder, a dysthymic disorder, and depression) and irritable bowel syndrome is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the exact nature and etiology of the veteran's claimed psychiatric disorder, as well as his irritable bowel syndrome. In pertinent part, it is contended that the veteran currently suffers from an acquired psychiatric disorder, to include post-traumatic stress disorder and/or a dysthymic disorder and depression, as a result of various incidents during his period of service in Thailand, to include certain stressful incidents which occurred during his service as an air traffic controller. The veteran further contends that, on numerous occasions in service, he received treatment for various gastrointestinal complaints, which complaints represented the inception of his currently- diagnosed irritable bowel syndrome. In that regard, a review of service medical records discloses that, on a number of occasions during the veteran's period of active military service, he received a diagnosis of and/or treatment for various gastrointestinal and psychiatric complaints, to include possible "early ulcer" disease and a phobia for flying. While at the time of a service separation examination in April 1978, a clinical evaluation of the veteran's abdomen and viscera, as well as a psychiatric evaluation, was within normal limits, it was additionally noted at that time that the veteran had a history of a "nervous stomach" secondary to nervousness, as well as "depression with martial problems." The Board observes that, since the time of the veteran's discharge from service, he has received diagnoses not only of irritable bowel syndrome, but also of post-traumatic stress disorder, a dysthymic disorder, and depression. While following a VA psychiatric examination in January 2001, the examiner was of the opinion that the veteran's depression was mainly the result of his marital problems, chronic anxiety, and financial stressors, he further indicated that it was "difficult to know" whether the veteran's current depression might have been "reactivated," in particular, given his past history of depression in service. Significantly, following a private psychological evaluation in March 2001 (which examination, it should be noted, involved a review of a "significant amount" of medical and psychological data, both from active duty and subsequent thereto), it was the opinion of the examiner that the veteran suffered from a post- traumatic stress disorder secondary to his military service in the United States Air Force, as well as a major depressive disorder with psychotic features secondary to the aforementioned post-traumatic stress disorder. Noted at the time of evaluation was that the veteran had served as an air traffic controller in Thailand during the Vietnam Era, during which time he directed traffic in and out of Thailand for bombing raids in Vietnam. Also noted were some "very negative experiences" as a photographer, one of which involved service during Hurricane Eloise in Florida, where the veteran was one of the last individuals to be evacuated from the area. Based on the aforementioned, and, in particular, the ambiguity surrounding the origin of the veteran's current psychiatric disorder and irritable bowel syndrome, the Board is of the opinion that additional development is necessary prior to a final adjudication of the veteran's current claims for service connection. Accordingly, the case is REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to August 2007, the date of the most recent pertinent evidence of record, should be obtained and incorporated in the claims folder. The veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the veteran, a notation to that effect should be included in the claims file. In addition, the veteran and his representative should be informed of any such problem. 2. The veteran should then be afforded additional VA psychiatric and gastrointestinal examinations in order to more accurately determine the exact nature and etiology of his claimed psychiatric disorder and irritable bowel syndrome. The RO/AMC is advised that the veteran must be given adequate notice of the date and place of any requested examinations, and a copy of all such notifications must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause may have an adverse effect on his claims. As regards the requested examinations, all pertinent symptomatology and findings should be reported in detail, and all appropriate studies should be performed. Following completion of the psychiatric examination, the examiner should specifically comment as to whether the veteran currently suffers from a chronic, clinically-identifiable acquired psychiatric disorder (to include post- traumatic stress disorder, a dysthymic disorder, and/or depression), and, if so, whether that psychiatric disability as likely as not had its origin during the veteran's period of active military service, to include as a result of his duty as an air traffic controller. Following completion of the gastrointestinal examination, the examiner should specifically comment as to whether the veteran currently suffers from chronic, clinically-identifiable irritable bowel syndrome, and, if so, whether that disorder as likely as not had its origin during the veteran's period of active military service. Should it be determined that the veteran does, in fact, suffer from chronic irritable bowel syndrome, but that such symptomatology did not have its origin during the veteran's period of active service, an additional opinion is requested as to whether the veteran's irritable bowel syndrome is as likely as not proximately due to, the result of, or aggravated by any clinically-identified chronic acquired psychiatric disorder. All such information and opinions, when obtained, should be made a part of the veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiners prior to completion of the examinations. Moreover, a notation to the effect that this record review took place must be included in the examination reports. 3. Thereafter, the RO/AMC should readjudicate the veteran's claims for service connection for an acquired psychiatric disorder (to include post- traumatic stress disorder, a dysthymic disorder, and depression) and irritable bowel syndrome. Should the benefits sought on appeal remain denied, the veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the most recent SSOC in June 2007. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).