Citation Nr: 1015441 Decision Date: 04/28/10 Archive Date: 05/06/10 DOCKET NO. 08-26 800 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Counsel INTRODUCTION The Veteran had active military service from December 1965 to October 1967. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2006 rating decision. The issue of entitlement to a rating in excess of 20 percent for diabetes mellitus was received in July 2009, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such, the Board has recharacterized the issue of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Acquired Psychiatric Disorder The Veteran has not been diagnosed with PTSD; however, at his hearing before the Board in October 2009, he described having nightmares about Vietnam and having relationship difficulty, and he believes that his experiences during the Vietnam War have caused him to develop PTSD. In particular, the Veteran maintains that his psychiatric disability is related to in- service combat experiences while serving in Vietnam. The Veteran did not receive any medals that are dispositive of whether he engaged in combat. In support of his claim, he described several incidents that he believes have caused him to develop PTSD. Specifically, he reports that one of his closest friends "Jessie Rose" was killed around June 1967 in Cou-Che during a battle with the Viet Cong. The Veteran also states that around August 1967 a human wave attack occurred at LZ Gold, and testified that in the aftermath of the battle, he was flown in to help bury the bodies of the dead Viet Cong. The Veteran indicated that they dug a mass grave for all the dead enemy soldiers, and he stated that the memory of the pit of bodies has haunted him to the present day. The Veteran served in "D" battery of the 71st artillery; and a search of the names on the Vietnam Wall (http://thewall- usa.com/guest.asp?recid=44453) revealed that a soldier named Jesse Rose was killed toward the end of March 1967. This entry shows that Cpl. Rose was also a member of the 71st Artillery. As such, the Veteran's account of this death is taken as corroborated. It is noted that at his hearing, the Veteran testified that Cpl. Rose was killed when their base was attacked, and while the Veteran reported participating in the fire fight that night he did not actually witness Cpl. Rose get killed, rather he was later told of the unfortunate death. The second event the Veteran described was being flown in to LZ Gold after a horrific battle to help burry the bodies of dead Viet Cong. The Veteran suspected that this event occurred around August 1967. Internet research suggests that the Battle at LZ Gold occurred around March 18, 1967, but no record was found regarding the burying of bodies in a massive grave. As such, this reported stressor should be further developed. Additionally, the Veteran has not yet been afforded a VA examination to determine whether he meets the DSM-IV criteria for an acquired psychiatric disability, to include PTSD. This should be done. Sleep Apnea At his hearing before the Board in October 2009, the Veteran reported that he had read on an Agent Orange website that sleep apnea was linked to Agent Orange exposure. While the Veteran was granted a 60 day extension to obtain this evidence, he did not submit any additional evidence; nevertheless, in reviewing the Veteran's claims file, a document entitled "Agent Orange Symptoms and Effects" was received in November 2005. This document lists suspension of breath (sleep apnea) under neurological symptoms attributed to herbicide exposure. It is unclear where this list came from as no author or website is credited in the document, and it is noted that sleep apnea is not considered to have been presumptively linked with herbicide exposure. See 38 C.F.R. § 3.309. However, the Veteran has been diagnosed with sleep apnea and given this suggestion of a possible link between his sleep apnea and his time in service, the Veteran should be scheduled for a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate records management agency and request that efforts be undertaken to corroborate whether the "D" battery of the 71st artillery participated in the post- battle disposal of bodies from LZ Gold in either mid-March 1967 or in August 1967. 2. Obtain any VA treatment records (presumably from the Baton Rouge, Louisiana VAMC). 3. Then the Veteran should be scheduled for a VA psychiatric examination. Any opinion rendered must be supported by a complete rationale and reconciled with the evidence of record. The examiner should be instructed which stressors have been corroborated (including participating in a firefight, then hearing that a friend was killed in the battle; and helping to dispose of dead enemy bodies in a mass grave, if the LZ Gold stressor is corroborated). The examiner should determine whether the Veteran meets the DSM-IV criteria for a diagnosis of any psychiatric disability, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner should opine whether it is at least as likely as not that the Veteran's PTSD is a consequence of any corroborated stressor from his military service. If a psychiatric disability other than PTSD is diagnosed, the examiner should determine whether it is at least as likely as not that such a disability either was caused by or began during the Veteran's military service. 4. Schedule the Veteran for a VA examination of his sleep apnea. The examiner should be provided with the Veteran's claims file, and a complete rationale should be provided for any opinion expressed. The examiner should determine whether it is at least as likely as not that the Veteran's sleep apnea either was caused by or began during the Veteran's military service. In doing so, the examiner should specifically indicate whether exposure to herbicides in Vietnam caused the Veteran to develop sleep apnea. 5. Thereafter, readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ STEVEN D. REISS Acting 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) (2009).