Citation Nr: 1318807 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-09 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for anxiety and depression. 2. Entitlement to service connection for Parkinson's disease with bladder control problem. 3. Entitlement to service connection for peripheral neuropathy. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the May 2007 and March 2011 rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The May 2007 rating decision denied service connection for anxiety and depression, and the March 2011 rating decision denied service connection for Parkinson's disease and peripheral neuropathy. In an October 2011 decision, the Board denied the Veteran's claim of service connection for squamous cell carcinoma of the tongue, as well as his claim of service connection for anxiety and depression. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a Memorandum Decision dated in December 2012, the Court affirmed the Board's denial of service connection for squamous cell carcinoma of the tongue, and vacated the remainder of the decision with respect to the remaining issue on appeal. The Court remanded the matter to the Board for proceedings consistent with the Memorandum Decision. (The claims for service connection for peripheral neuropathy and Parkinson's disease with bladder control problems are addressed in the remand that follows the decision below.) FINDING OF FACT Competent evidence of record associates the Veteran's generalized anxiety disorder and major depressive disorder with his period of military service. CONCLUSION OF LAW The Veteran has a generalized anxiety disorder and major depressive disorder that are the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he developed several psychiatric disorders, namely anxiety and depression, as a result of his years in service. He also contends that his psychiatric problems began to manifest as a result of his various health problems, to include his squamous cell carcinoma of the tongue. See Veteran's statements dated in June 2004, May 2004, November 2006 and September 2012; see also July 2004 report issued by Social Security Administration (SSA) Disability examiner recounting telephone conversation with Veteran. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation only applies to the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. The Board finds that service connection for generalized anxiety disorder and major depressive disorder is warranted. In making this determination, the Board highlights that the post-service medical evidence of record demonstrates that the Veteran has been diagnosed with both these disorders. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Specifically, an April 2004 VA treatment report reflects that the Veteran's depression screening produced positive results. Additionally, the Veteran underwent psychological testing with a clinical psychologist in August 2004, and the diagnostic impression derived therefrom revealed diagnoses of pain disorder associated with both psychological factors and a general medical condition; panic disorder; and major depressive disorder. A mental health consultation was conducted at the Dodge City Community based outpatient clinic (CBOC) in July 2011. During this consultation, the Veteran described a long history of anxiety and endorsed numerous depressive and trauma symptoms. Based on her discussion with, and evaluation of the Veteran, the clinical social worker diagnosed the Veteran with generalized anxiety disorder and major depressive disorder. Turning to the second element required for service connection, the Veteran's service treatment records reflect that he was first seen at sick call on two occasions in June 1968 with symptoms of hyperventilation, for which he was prescribed medication. During the second treatment visit, the treatment provider noted that the Veteran had been working in the holes and was "having trouble adjusting to the heat." It was also noted that the Veteran appeared "very nervous" and could not sit still. The Veteran presented at sick call again in August 1968 at which time he reported to feel very weak and dizzy. The treatment provider indicated that the Veteran seemed fairly conscientious and that malingering was therefore doubtful. A subsequent sick call report dated on August 5, 1968 indicated an assessment of "[h]eat [c]asualty." The Veteran reported feeling numb all over his body and stated that he was experiencing problems adjusting to the hold. The Veteran's blood pressure was measured at 150/90, and the impression derived was that of hyperventilation. He was advised to consciously breath slowly and to breath into a paper bag. The Veteran was seen at sick call once again in February 1969 with complaints of general malaise. While these records do not reflect a diagnosis of a psychiatric disorder, and the clinical evaluation of the Veteran's psychiatric condition was shown to be normal at a February 1970 separation examination, the Veteran's complaints of malaise, weakness and nervousness as well as his symptoms of, and treatment for, hyperventilation throughout his period of service are sufficient in establishing the second element required for service connection-an in-service event. Finally, turning to the third element required for service connection, the Board notes that the only opinion of record addressing whether there is a causal relationship between the Veteran's current psychiatric disorders and his period of service is an April 2013 report issued by R.K.G, Ph. D. In that report, Dr. G. reviewed the Veteran's service and post-service treatment records in detail and acknowledged documentation reflecting the Veteran's nervous appearance, as well as symptoms of, and treatment for, hyperventilation. During this evaluation, the Veteran recounted his in-service experiences and explained that he was assigned to work in the engine room of the aircraft carrier, which sometimes reached 130 degrees. According to the Veteran, he suffered several "spells" in this work environment, which left him confused, dehydrated and in a daze. He was taken to sick bay as a result of these episodes, and subsequently excused from having to return to the engine room. According to the Veteran, as a result of these incidents, and the fact that he was exempted from his duties in the engine room, he was consequently viewed as weak by one of his superiors, who proceeded to antagonize and "pick on" him for the duration of his assignment. In the discussion section of his report, Dr. G. took note of the Veteran's pre-service history, and found that prior to service, the Veteran "appeared to be ill-equipped, given his limited background with apparently little nurturance or life experience, to develop a sense of confidence in his own ability to pursue and master novel challenges in life." Dr. G. further noted that the Veteran felt harassed and bullied aboard the ship because others perceived him as weak, and "[t]his sense of being harassed by others who were stronger and more cunning carried over to civilian life. . . ." Based on his review of the Veteran's claims file, as well as his discussion with, and evaluation of, the Veteran, Dr. G. diagnosed the Veteran with recurrent severe major depressive disorder and determined that this condition had its onset during the first year of the Veteran's military service. Dr. G. also diagnosed the Veteran with generalized anxiety disorder and determined that it was at least as likely as not that this condition was caused by the Veteran's military service. In reaching these conclusions, Dr. G. specifically referenced service treatment records reflecting the Veteran's complaints of, and treatment for, stress-related symptoms. According to Dr. G., the medical descriptions and documentation suggest "that it is as likely as not that [the Veteran] experienced a severe stress reaction that developed into an [a]djustment [d]isorder with [m]ixed [a]nxiety and [d]epressed [m]ood, in response to his work in the engine rooms aboard ship." Dr. G. further found that this condition persisted and evolved into an acute stress reaction which went into remission when the Veteran was given a change of duty, but was "only heightened, or reinforced" whenever he periodically was instructed to return to the engine room. Dr. G. further concluded that the physical and emotional stress manifested by the Veteran was exacerbated by his perception of the harassment he received from one of his superiors. In reaching this determination, Dr. G. also referenced post-service records dated from 2001 to 2004 which reflected treatment for similar symptoms from which the Veteran suffered while on active duty. As such, because there is medical opinion evidence of a relationship between the Veteran's currently diagnosed generalized anxiety disorder and major depressive disorder and service, the Board finds that the third element required for service connection has also been satisfied. Based on the totality of the evidence, and resolving reasonable doubt in the Veteran's favor, and because the Board may not inject its own interpretation of the evidence, the Board finds that the Veteran currently has a major depressive disorder and a generalized anxiety disorder, both of which are related to his active military service. Accordingly, because all three elements required to establish entitlement to service connection have been met, the Board finds that service connection for generalized anxiety disorder and major depressive disorder is warranted. Therefore, the Veteran's claim of entitlement to service connection is granted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for a generalized anxiety disorder and a major depressive disorder is granted. REMAND In the present case, the Veteran asserts that he developed Parkinson's disease with bladder control problems, and peripheral neuropathy, as a result of his active military service. Specifically, the Veteran states that he had exposure to herbicide agents, such as Agent Orange, while he was aboard the USS Constellation during the Vietnam War. The Veteran maintains that his Parkinson's disease and peripheral neuropathy are both related to his claimed in-service exposure to herbicides. The medical evidence of record includes a September 2010 VA neurological report, which indicates that the Veteran has mild and early Parkinson's disease and peripheral neuropathy of unknown etiology. Under the current regulatory provisions, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including Parkinson's disease and acute and subacute peripheral neuropathy, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that 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 after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). VA regulations require that a Veteran set foot within the land borders of Vietnam for presumptive service connection and that a Veteran who never went ashore from the ship on which he served in the Vietnam coastal waters is not entitled to presumptive service connection. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In Haas, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA's amendment to its Adjudication Procedure Manual excluding Veterans who had not set foot in Vietnam was not invalid or impermissibly retroactively applied. It is unclear whether the Veteran served in the Republic of Vietnam and/or was otherwise exposed to herbicides during his service. The Veteran's service personnel records document that he served aboard the USS Constellation (CVA-64) during the Vietnam War. In addition, a January 2007 response from the National Personnel Records Center (NPRC) indicates that the USS Constellation was in the official waters of Vietnam on at least eleven occasions from June 1968 to March 1970. However, NPRC was unable to determine whether or not the Veteran had "in-country" service. VA acknowledges the widespread use of tactical herbicides, such as Agent Orange, by the United States military during the Vietnam War and has extended a presumption of herbicide exposure to any Veteran who served on the ground or on the inland waterways of the Republic of Vietnam between January 9, 1962, and May 7, 1975. This policy represents VA's interpretation of the statutory phrase "served in the Republic of Vietnam" found at 38 U.S.C.§ 1116(a)(1). The regulation implementing this interpretation at 38 C.F.R. § 3.307(a)(6)(iii) makes it clear that "duty or visitation in the Republic of Vietnam" is required to qualify for the presumption. This policy is grounded in the fact that aerial herbicide spraying was used within the land boundaries of Vietnam to destroy enemy crops, defoliate areas of enemy activity, and create open security zones around U.S. military bases. However, a legal challenge to VA's interpretation was brought before the Court in Haas. The case sought to further extend the presumption of exposure to U.S. Navy Veterans who served aboard ships operating on Vietnam's offshore waters. The Court held that the presumption of exposure should be extended to U.S. Navy Veterans. VA filed an appeal on that decision and implemented a stay on adjudicating the numerous new claims resulting from it. The Federal Circuit, in Haas v. Peake (2008), reversed the Court's decision and held that VA's policy of extending the presumption only to those Veterans who served on the ground or on the inland waterways of Vietnam was a reasonable and valid statutory interpretation. In the wake of the Haas case and the resulting claims, VA's concern for the issues related to herbicide exposure claims from U.S. Navy Veterans resulted in a need to clarify current claims processing policies and procedures in order to assist this group of Veterans in a consistent manner. As a result, VA has issued guidance to the ROs by providing some background information on the service of these Veterans to assist in developing and adjudicating these claims. See Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era, Sept. 9, 2010. The Training letter provided, in pertinent part, that, in order for the presumption of exposure to be extended to a Blue Water Navy Veteran, development must provide evidence that the Veteran's ship operated temporarily on the inland waterways of Vietnam or that the Veteran's ship docked to the shore or a pier. In claims based on docking, a lay statement that the Veteran personally went ashore must be provided. Since there is no way to verify which crewmembers of a docked ship may have gone ashore, VA Compensation and Pension Service has determined that a veteran's lay statement is sufficient. This is in keeping with 38 U.S.C. § 1154, which states that consideration shall be given to the places, types, and circumstances of a Veteran's service, and with 38 C.F.R. § 3.159(a)(2), which states that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. In claims based on docking, the circumstances of service have placed the Veteran in a position where going ashore was a possibility and the Veteran, by virtue of being there, is competent to describe leaving the ship and going ashore. The circumstances also establish credibility unless there is evidence to the contrary. See Training Letter 10-06, Section II, third paragraph. In statements dated in December 2010 and January 2011, the Veteran stated that he served aboard the USS Constellation which travelled through the "Tonkin Gulf" from 1968 to 1970. The Veteran also claimed that at times the vessel operated within close proximity to the shore line and within designated combat zones. However, based on the evidence of record as it currently stands, the Board is unclear as to whether the USS Constellation, while operating within close proximity to shore, did in fact enter inland waterways. Furthermore, the Veteran has not stated whether the U.S.S. Constellation ever docked to the shore or pier, nor has he indicated that he personally set foot inside Vietnam or travelled in a smaller vessel that went ashore. The Board has also reviewed the materials referred to in the Training Letter to see if the USS Constellation (CVA-64) "operated temporarily on Vietnam's inland waterways or docked to the shore" while the Veteran was on board this ship. From the materials referred to in the Training Letter, the Board cannot conclude that this ship so operated or was so docked. From its review of these materials, the Board notes that the USS Constellation was an aircraft carrier involved in several combat and support missions off the coast of Vietnam from 1968 to 1970. See Dictionary of American Naval Fighting Ships (DANFS) Index. About aircraft carriers such as the USS Constellation, the Training Letter provides: Support missions for ground troops and attacks on enemy positions were also conducted by U.S. Navy aircraft launched from aircraft carriers (designated by CV or CVA hull numbers) stationed at sea, generally from 30 to 100 miles off the Vietnam coast. The gun line ships and aircraft carriers, as well as their supply and support ships, are collectively referred to as the "Blue Water" Navy because they operated on the blue-colored waters of the open ocean. See Training Letter 10-06, Section I, fifth paragraph. Thus, perhaps this ship was too large to have "operated on Vietnam's inland waterways." While the Veteran claims to have been exposed to herbicide agents in service, a reading of his contentions leaves the Board unclear as to the whether the Veteran is also claiming that the USS Constellation may have entered inland waterways of the Republic of Vietnam while he was stationed aboard. In light of these remaining questions, and given that there are several development steps outlined in the Training Letter to determine whether a ship "operated temporarily on Vietnam's inland waterways or docked to the shore", the Board concludes that those steps should be undertaken upon remand. Prior to these steps being taken, the Board also finds that the Veteran should initially be asked to provide additional information regarding his service aboard the USS Constellation. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) must contact the Veteran and request that he provide additional information regarding his period of service aboard the USS Constellation. Specifically, the Veteran should be asked whether the USS Constellation ever docked to the shore or pier of the Republic of Vietnam. If so, the Veteran should provide names of any ports, piers, or stations where the USS Constellation docked and the corresponding dates for when docking occurred. The Veteran should also be asked to say whether he ever travelled in a smaller vessel from the USS Constellation that went to shore, or if he personally went ashore and set foot inside the Republic of Vietnam during his period of service. If so, the Veteran should provide the dates for when he travelled ashore and/or set foot inside the Republic of Vietnam. 2. Once this information has been obtained, the AOJ must take any and all necessary steps to corroborate the Veteran's assertions. Specifically, the AOJ must contact the Department of the Navy, NPRC, Joint Services Records Research Center (JSRRC), and any other appropriate records depository, in an effort to obtain for the record deck logs and all pertinent ship histories for the USS Constellation (CVA-64) (from June 27, 1968 to July 22, 1968; August 2, 1968 to August 28, 1968; September 11, 1968 to October 9, 1968; October 28, 1968 to November 29, 1968; December 9, 1968 to December 21, 1968; January 1, 1969 to January 7, 1969; September 11, 1969 to October 3, 1969; November 1, 1969 to November 23, 1969; December 7, 1969 to December 22, 1969; January 4, 1970 to January 31, 1970; and February 11, 1970 to March 1, 1970). As required under 38 C.F.R. § 3.159(c)(2), the AOJ must make as many requests as are necessary to obtain the requested records, and end such efforts only if the records sought do not exist or further efforts to obtain such records would be futile. If the AOJ reaches such a conclusion or the search for such records has negative results, documentation to that effect should be included in the claims file. In addition, the AOJ must follow all development steps outlined in Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era, Sept. 9, 2010, in developing evidence as to whether the USS Constellation (CVA-64) "operated temporarily on Vietnam's inland waterways or docked to the shore" while the Veteran was on board this ship. 3. Thereafter, review the claims folder and ensure that the foregoing development actions have been conducted and completed in full. If the response is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the above, and undertaking any other development deemed appropriate, readjudicate the issues remaining on appeal. If any benefit sought on appeal is not granted, the Veteran and his attorney should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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 case 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. 2012). _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs