Citation Nr: 1032046 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 06-30 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a major depressive disorder. 2. Entitlement to service connection for an eye disability. 3. Entitlement to service connection for diabetes mellitus, to include as a result of in-service exposure to herbicides. 4. Entitlement to service connection for a cardiovascular disorder, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from May 1969 to December 1970. This matter arises before the Board of Veterans' Appeals (Board) from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board acknowledges that the Veteran's psychiatric claim was previously characterized simply as a claim for service connection for PTSD. However, while on appeal, the United States Court of Appeals for Veterans Claims (Court) addressed a case involving the scope of filed claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In particular, the Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim involves a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim. Review of the claims file in the current appeal indicates that the Veteran has been variously diagnosed as having PTSD as well as a major depressive disorder. Accordingly, the Board finds that the Veteran's claim is not limited solely to PTSD. Instead, the claim is properly characterized broadly as involving service connection for an acquired psychiatric disorder, to include PTSD and a major depressive disorder. For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's appeal. Specifically, VA treatment records dated July 2004 and August 2004 indicate that the Veteran is in receipt of Social Security disability benefits. VA has a duty to obtain Social Security Administration (SSA) records when they may be relevant to a claim. 38 U.S.C.A. § 5103A(c)(3) (West 2002); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The medical and legal documents pertaining to this application have not been associated with the claims folder. The possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Because the record indicates that the Veteran has applied for, and indeed has been granted, disability benefits from the Social Security Administration, the Board finds that his appeal must be remanded in order to accord the agency of original jurisdiction (AOJ) an opportunity to procure these documents. 38 C.F.R. § 3.159(c)(2) (2009). Furthermore, VA must provide a compensation and pension examination to a Veteran when the information and evidence of record (1) contains competent lay or medical evidence of a current diagnosed disability; (2) establishes that the Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R §§ 3.309, 3.313, 3.316, and 3.317 manifesting during the applicable presumptive period if the Veteran has the required service to trigger the presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4)(i) (2009). With regard to the Veteran's PTSD claim in particular, the Board notes that, effective July 13, 2010, VA amended provisions of 38 C.F.R. § 3.304(f), pertaining to direct service connection for PTSD. 75 Fed. Reg. 39843 (July 13, 2010). Under the new regulation, a Veteran's lay testimony alone, indicating that his claimed in-service stressor is related to his fear of hostile military or terrorist activity, may establish the occurrence of the claimed in-service stressor if it is consistent with the places, types, and circumstances of his service. 75 Fed. Reg. 39843 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3) (2010)). In a statement submitted in July 2010 in the present case, the Veteran's representative asserted that the Veteran's claim is "clearly related to 'fear of hostile military or terrorist activity.'" Previously, in a February 2004 statement, the Veteran had asserted that, while serving aboard the USS Advance between late 1969 and late 1970, he "saw numerous dead bodies." He noted that he had "to board junkets to check for arms" and, in so doing, saw numerous gunshot wounds. He also explained that, while aboard the ship, he was tasked with dropping grenades over the side of the vessel every hour or half hour for about two weeks and that, when on patrol while sweeping for mines, he would see dead bodies floating in the water. Available service personnel records which have been associated with the claims folder reflect the Veteran's receipt of hostile pay for a portion of his active duty. Based on this evidentiary posture, the Board concedes the Veteran's claimed stressor. The Veteran has also presented evidence that he has been diagnosed with PTSD and major depressive disorder. Thus, on remand, the Veteran should be afforded a compensation and pension examination for his psychiatric claim. The examiner should indicate what acquired psychiatric disorder the Veteran is diagnosed with, if any, and provide an opinion regarding whether any such diagnosis is at least as likely as not etiologically related to the Veteran's conceded fear of hostile military or terrorist activity in service. Moreover, in denying the Veteran's claim for service connection for diabetes mellitus, the RO has concluded that evidence of record does not confirm the Veteran's presence in the Republic of Vietnam during his active duty. Throughout the current appeal, however, the Veteran has consistently maintained that he did indeed "step foot" onto the land of Vietnam. The service personnel records which have been obtained and associated with the claims folder do not support this contention. Thus, on remand, an attempt should be made to procure copies of any additional service personnel records which may be available and to associate them with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy the SSA decision awarding disability benefits to the Veteran-as well as the medical records used in support of that determination. All such available documents should be associated with the claims folder. If no such documents are available, that fact should also be noted in the file. 2. Procure a copy of any additional service personnel records that may be available. The Board is particularly interested in service personnel records which may indicate whether the Veteran served "in-country" in the Republic of Vietnam for any portion of his active duty. All such available documents should be associated with the claims folder. 3. Then, schedule the Veteran for an appropriate examination to determine the etiology of his currently diagnosed acquired psychiatric disorder, to include any PTSD that may be diagnosed on evaluation. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should specifically set forth in the examination report what acquired psychiatric disorder(s), including PTSD, that the Veteran is diagnosed with, if any, and whether any such disability is at least as likely as not (i.e., a probability of 50 percent or greater) etiologically related to the Veteran's conceded fear of hostile military or terrorist activity in service. If the examiner is unable to give such an opinion without resorting to mere speculation, the examiner should state so and give the reasons why he or she cannot give such an opinion. Complete rationale should be given for all opinions expressed. 4. After any additional development deemed necessary is accomplished, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law, as well as regulations considered pertinent to the issues on appeal. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, 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 (2009). 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 that are remanded by the Board or by the Court 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). _________________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).