Citation Nr: 1332329 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 12-29 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1968 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This appeal has been expanded from the Veteran's original claim to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran originally filed a claim of entitlement to service connection for PTSD. The Veteran alleges psychiatric troubles associated with his duties as a person who dealt with the remains and effects of soldiers. The file contains no evidence of a current psychiatric disability other than the Veteran's claims. The issue is expanded to include all psychiatric disorders pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is. A review of the Virtual VA claims processing system does not reveal any documents pertinent to the claim on appeal. 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 Diabetes The Veteran contends that his currently diagnosed diabetes is due to exposure to herbicides during his service at Camp Pendleton, CA, where he was required to inspect and inventory the personal effects of wounded and diseased Vietnam Veterans. The Veteran states that these effects were contaminated with Agent Orange in full. VA regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure include Type II diabetes. See 38 C.F.R. § 3.309(e). If the Veteran did not serve in Vietnam during the Vietnam era, there must be evidence that the Veteran was actually exposed to herbicides during service for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Notwithstanding the foregoing law and regulations pertaining to presumptive service connection, a Veteran is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has not contended, and the record does not show, that he was ever present in Vietnam or any other location where exposure to herbicides is presumed. Therefore, he is not entitled to a presumption of herbicide exposure under 38 C.F.R. § 3.307(a)(6). Further development is necessary to determine whether the Veteran satisfies the presumption under 38 C.F.R. § 3.309(e) or is entitled to direct service connection for his diabetes. The competent evidence indicates that the Veteran has a current diagnosis of diabetes. To date, he has not been provided with a VA examination to determine the nature and etiology of his diabetes. On remand, the Veteran should be scheduled for VA examination to address any relationship between his currently diagnosed diabetes and active service. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record is inadequate to determine whether the Veteran was actually exposed to herbicides during service. To assist in evidentiary development, the examiner should ask the Veteran to describe his contended exposure to Agent Orange. PSYCHIATRIC DISABILITY TO INCLUDE PTSD The Veteran contends that he has a psychiatric disability to include PTSD as a result of his active service. Specifically, he claims that he was responsible for handling remains of deceased Veterans shipped from Vietnam. He contends that these shipments included "severed human body parts, severed heads, helmets, uniform clothing[], bloody parts, belts and boot[]s." See September 2010 Veteran Statement. Establishing service connection for PTSD requires the following: (1) medical evidence showing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). The Veteran's service personnel records have not been requested nor obtained. As these records are pertinent to the Veteran's claim that he has PTSD as a result of his assigned military duties, these records must be obtained on remand. The Veteran has not had a VA psychiatric examination to determine if he has a current diagnosis of a psychiatric disorder. A remand is required to afford the Veteran a VA examination to determine the nature and etiology of any diagnosed psychiatric disorders. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask them to identify all VA and non-VA clinicians who have treated him for diabetes mellitus and any psychiatric conditions since his separation from active service. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Obtain the Veteran's personnel file (201) for the active duty period from June 1968 to June 1970. If no service records can be found, have been destroyed, or are otherwise deemed to be unavailable, the AOJ should make every reasonable attempt to obtain specific confirmation of that fact and inform the Veteran of that information. 3. Schedule the Veteran for appropriate examination to determine the nature and etiology of his diabetes mellitus. The claims file and a copy of this remand must be provided to the examiner for review. The examiner should note in the examination report that this has been accomplished. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner should note that there is no official record of any in-service exposure to herbicides during the Veteran's active service. The Veteran should be asked to give a detailed description of his exposure and how he came to believe that he was exposed to herbicides/agent orange. Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner should specifically address the following: a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that diabetes mellitus, if diagnosed, is related to active service or any incident of service. All opinions expressed by the VA examiner should be accompanied by a complete rationale. If the examiner is unable to offer an opinion, an explanation should be provided. b) Request that the Veteran provide, in as much detail as possible, information regarding his contended exposure to Agent Orange or any other herbicide during service. The examiner should ask the Veteran questions such as: 1) For how long does he assert he was exposed to herbicides?; 2) What were his duties while he was stationed at Camp Pendleton? 3.) How does he know that the substance he was exposed to was Agent Orange or herbicides. All responses should be included in the examiner's report. 4. Schedule the Veteran for a VA PTSD and psychiatric disorders examination. The claims file and a copy of this remand must be provided to the examiner for review. The examiner should note in the examination report that this has been accomplished. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history. Based on a review of the Veteran's claims file and the results of his examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner should specifically address the following: a) State whether the Veteran currently suffers from PTSD, consistent with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition of the American Psychiatric Association. b) Thereafter, state whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran currently suffers from PTSD as a result of his time in active duty service. c) State whether the Veteran currently suffers from any other psychiatric disorder. d) Thereafter, state whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran currently suffers from this/these disabilities as a result of his time in active duty service. e) All opinions expressed by the VA examiner should be accompanied by a complete rationale. If the examiner is unable to offer an opinion, an explanation should be provided. 5. Once the above actions have been completed, readjudicate the Veteran's claim. If the benefits remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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. 2012). _________________________________________________ MARJORIE A. AUER 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) (2013).