Citation Nr: 1319135 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 03-14 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and anxiety disorder. REPRESENTATION Appellant represented by: Krystle D. Waldron, Attorney-at-law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to March 1967, April 1967 to April 1970, July 1970 to October 1982, and from December 1983 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2002 and February 2009 rating decisions of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for diabetes mellitus, type II to include as secondary to Agent Orange exposure and service connection for PTSD. Although the Veteran is claiming service connection for PTSD, he has also been found to be diagnosed with major depressive disorder and anxiety. Although a claimant may identify a particular mental condition on the claims form accompanying his application for VA benefits, the scope of the claim cannot be limited only to the condition stated, "but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim." Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). By rating decision of June 2002, service connection for major depressive disorder was denied. He was notified of the denial in a letter dated that same month and was provided his appellate rights. He did not appeal within the requisite one year period, and the claim is now final. The Veteran has not requested that VA reopen his claim of entitlement to service connection for major depressive disorder. Therefore, the Board has limited its consideration of the Veteran's appeal to entitlement to an acquired psychiatric disorder to include PTSD and anxiety disorder. The Veteran testified at a videoconference hearing in October 2008. A transcript of that hearing is of record and associated with the claims folder. In a December 2008 Board decision, the Board denied the claim of entitlement to service connection for diabetes mellitus, type II, to include as secondary to Agent Orange exposure. He subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2009, the Court issued an order approving a Joint Remand of the Parties to vacate the Board's decision regarding the issue of service connection for diabetes mellitus, type II, to include as secondary to Agent Orange exposure, and to remand that issue back to the Board, consistent with the terms of the Joint Motion. The Board remanded that claim in May 2010 to the RO for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Further development is necessary before final adjudication of the claims on the appeal is made. At the outset, it is important to note that in the October 2009 Joint Motion for Remand, it was determined that sufficient evidence of the location of Camp St. Barbara was never provided and in the alternative, a determination of whether records regarding the location of Camp St. Barbara exist or whether the custodian has certified that they do not exist. The Board remanded the claim to the RO indicating that the location of Camp St. Barbara must be provided for review. No additional development was conducted regarding the location of Camp St. Barbara. An October 2012 memo from the Joint Services Records Research Center (JSRRC) only addressed Camp St. Barbara in a recitation of the June 2002 statement from the RO indicating that "Camp St. Barbara apparently was a firebase several miles north of the 38th parallel and just a few miles south of the Demilitarized Zone (DMZ)." The location of Camp St. Barbara and its proximity to the DMZ is paramount to this claim. It is known that the Veteran was at Camp St. Barbara while stationed in Korea in 1968 and 1969, as service treatment records show that he was treated at the dispensary located at Camp St. Barbara during that time period. If his unit was found to have operated in or near the Korean DMZ in an area in which herbicides were known to have been applied during that period, he shall be presumed to have been exposed during such service to a herbicide agent. See 38 C.F.R. § 3.307(a)(6)(iv) 2012. Although it has not been determined that he served in one of the units determined by the Department of Defense to have operated in or near the Korean DMZ, the October 2009 Joint Remand determined that the location of Camp St. Barbara was necessary in this regard. Therefore, a formal finding regarding the specific location of Camp St. Barbara in proximity to the Korean DMZ or the inability to determine the location of Camp St. Barbara, must be made. Additionally, the Veteran has indicated that his military occupational specialty (MOS) is correct and that he was a personnel specialist at the time of his service in 1968 to 1969 in Korea. However, he maintains that he performed several duties at that time which included transportation, mail clerk, and field duties as a forward observer and guard duty. These duties took him outside of the camp and in or near the Korean DMZ. During his October 2008 videoconference Board hearing, the Veteran specifically indicated that he was slotted as an administrative clerk. However, he testified that his duties included anything from the motor pool to a field surveyor. These duties, according to the Veteran, when he was in the field, took him to the Korean DMZ. Although these duties are not shown in his personnel records, it is important to assist the Veteran in locating any records which can corroborate these duties. An attempt to locate the Veteran's unit's morning reports or unit/organizational histories would be helpful in this regard. The Veteran has also claimed that he has PTSD as a result of his active service. He has provided stressors which indicate that while training in Korea, they were trained on M16 rifles. A South Korean trainee who was trained with their unit, had his weapon on full automatic and lost control, killing and injuring several people. He also claimed that while in the field, his 1st Sergeant left him behind with the security guards and cooks, all who had no combat training. At that time, they received notice that the North Koreans had crossed the DMZ, and they had to stay on alert for several days in the field. This was a traumatic experience for him, according to the Veteran. The Veteran was not able to provide the dates for these two incidents, but he remembered they occurred during his service period of April 1969 to February 1969. He also indicated that his unit was A Battery, 1st TAB, 25th Artillery. He also reported that they were the support for the artillery unit. A search of the morning reports or unit/organizational histories would also be helpful in this regard. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the official location, and make a formal finding as to the location of Camp St. Barbara and indicate, in pertinent part, its location in proximity in or to the Korean DMZ. If the location cannot be determined in this regard, a formal finding must be made and associated with the claims folder. 2. The RO should submit a request to the National Personnel Records Center (NPRC) through the Personnel Information Exchange System (PIES) requesting the morning reports, organizational/unit histories of A Battery, 1st TAB, 25th Artillery, from April 1968 to February 1969, and associate any located reports with the claims folder. If no morning reports or organizational/unit histories for this period for this unit can be located, a formal finding should be made. 3. Thereafter, the Veteran should be afforded a VA psychiatric examination to determine the nature and etiology of his claimed PTSD. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner (a VA psychologist or psychiatrist) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to whether the Veteran has PTSD meeting the criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), and, if so, whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is the result of any in-service claimed event. The VA examiner should specifically determine whether the Veteran has a claimed stressor that has been verified or is related to fear of hostile military or terrorist activity. Thereafter, the VA examiner should confirm whether the claimed stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor. If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). 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 the stressor is not related to "fear of hostile military or terrorist activity," the stressor must be verified prior to an examination of the Veteran. In rendering such determination, the examiner is instructed that the Veteran alleges that he witnessed a South Korean soldier trainee kill and injure numerous persons while training with an automatic M16 and that he also experienced a state of fear while on alert while serving on the DMZ in Korea. If an acquired psychiatric disability other than PTSD is diagnosed, e.g., anxiety disorder, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that the psychiatric condition had its onset in- service or is otherwise causally related to the Veteran's service. All findings and conclusions requested should be set forth in a legible report. Supporting rationale must be provided with the requested opinion. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Following completion of the above, the claims should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case (SSOC) and be provided an opportunity to respond. The claims should be returned to the Board as warranted. The Veteran 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS 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) (2012).