Citation Nr: 1335138 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-03 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure. 2. Entitlement to service connection for a skin disorder, to include as due to Agent Orange exposure. 3. Entitlement to service connection for colon disease, to include as due to Agent Orange exposure. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for residuals of malaria. 6. Entitlement to service connection for residuals of pneumonia. 7. Entitlement to service connection for residuals of dysentery. 8. Entitlement to service connection for a right arm laceration. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to July 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2007, the Veteran testified at a RO hearing before a Decision Review Officer (DRO). In July 2010, he and his spouse testified at Travel Board hearing before the undersigned. Transcripts of both hearings are of record. In December 2011, the Board remanded the claims for additional development. The case was returned to the Board for appellate consideration. In August 2013, the Board received additional evidence and argument from the Veteran. He submitted a waiver of his right to initial consideration of any newly submitted evidence by the RO in October 2012. See 38 C.F.R. § 20.1304(c) (2013). The Veteran's paper claims file and electronic claims folder has been reviewed in conjunction with the disposition of the issues on appeal. The issues of entitlement to service connection for a skin disorder, colon disease, an acquired psychiatric disorder, malaria, pneumonia, dysentery, and a right arm laceration are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran is presumed to have been exposed to herbicides, to include Agent Orange, during service. 2. Competent medical evidence reflects a diagnosis of diabetes mellitus, a disability recognized by VA as presumptively associated with Agent Orange exposure. CONCLUSION OF LAW Diabetes mellitus is presumed to have been incurred in-service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination on the issue herein decided, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that his diabetes mellitus is related to herbicide/Agent Orange during service. If a veteran served on active duty in the Republic of Vietnam during the Vietnam era (beginning on January 9, 1962 and ending on May 7, 1975), he is presumed to have been exposed to herbicides, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). VA has also determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section (C)(10)(q). If a veteran was exposed to a herbicide agent during active military, naval, or air service and develops diabetes, that disorder shall be service connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). In this case, the medical evidence indicates that Veteran has a current diagnosis of diabetes mellitus. As will be explained below, resolving reasonable doubt in his favor, the Board finds that his service included travel to the Republic of Vietnam in 1966. Therefore it is conceded or presumed that he was exposed to herbicides, including Agent Orange. The Veteran's service personnel records reflect that he served with the 538th Engineer Battalion in Thailand from July 1966 to June 1967. His primary military occupational specialty was a vehicle/equipment repairman. During the RO and Board hearings, he testified that his unit was stationed east of Korat Royal Thai Air Force Base (Korat) and that he visited Korat on several occasions. He believes he was exposed to Agent Orange at Korat and also while working to clear the roadways. During the July 2010 Board hearing, and in various written statements, the Veteran indicated that he initially flew into Saigon, Vietnam before being sent to Thailand. Hearing Transcript at 4-5. He said he was in Saigon for two or three days. Although the portion of his service personnel records obtained by the AOJ do not indicate whether he initially flew into Saigon, he submitted a copy of a photograph of a market in Saigon with a soldier taking a picture in the foreground. In August 2013, he submitted enlargements of the soldier in this photograph with other photographs of himself in the service. These photographs appear to confirm that he was the soldier in the foreground at the market in Saigon. The Board finds the Veteran's testimony, along with the photographs, credible evidence that he was in the Republic of Vietnam in 1966. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service involved visitation to the Republic of Vietnam in 1966. Therefore it is conceded or presumed that he was exposed to herbicides, including Agent Orange and service connection for diabetes mellitus is warranted. ORDER Entitlement to service connection for diabetes mellitus is granted. REMAND Unfortunately, the Board's review of the claims file reveals that further AOJ action is warranted, even though such action will, regrettably, further delay an appellate decision on the claims remaining on appeal. I. Medical Records A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record reflects that the Veteran received treatment at the Dallas VA Medical Center (VAMC) and the Tyler VA Primary Care Clinic (VA North Texas Health Care System). Although he indicated that he no longer receives treatment for PTSD at a VA facility, it is unclear whether he still receives ongoing treatment for other conditions. In December 2011, the Board remanded the claims, in part, to obtain any outstanding VA treatment records since July 2010. Later that month, the AOJ requested outstanding treatment records from the VAMC in Shreveport, Louisiana. It is unclear why the AOJ requested records from that facility as the Veteran did not indicate that he received treatment there. In any event, no records were requested from the VA North Texas Health Care System. Therefore a remand, consistent with Stegall, is required. The Board notes that the Veteran has also identified two private family physicians (Drs. Z. and F.) that might have records pertinent to his claims. Therefore, while his appeal is in remand status, the AOJ should request that he provide VA Forms 21-4142, Authorization and Consent to Release Information to VA, for any treatment records from these physicians. II. PTSD Stressors The Veteran asserts that his current psychiatric disorder is related to or had its onset in service. Specifically, he has identified several traumatic events that occurred during service, including the death of his newborn son. The record reflects that he had been diagnosed with PTSD and major depressive disorder and treated for anxiety. Establishing entitlement to service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2013). The Veteran does not assert that he was involved in combat or that his stressors are related to hostile military or terrorist activity. Therefore, corroboration of his reported stressors is required. In a December 2011, the AOJ determined that the Veteran provided insufficient information regarding his stressors and that referral to the Joint Services Records Research Center (JSRRC) to research his stressors was not warranted. However, the Veteran has submitted multiple written statements regarding his stressors, some of which include the approximate date and locations of each incident. He has reported that there were many ambushes along the roadways in Thailand and the area east of Korat where he was stationed. He said his duties included clearing the roadways and that he found dead bodies on several occasions. Some of his reported stressors are too vague for verification, such as witnessing burning bodies in a nearby village. However, he has reported the following events in more detail: 1) Witnessing the death of two soldiers from the 538th Engineer Battalion who were run off the road in an ambush. He said their chests were crushed in the accident and a helicopter was sent from Korat to retrieve them. He said this event occurred in June 1967. (See November 2007 statement). In a buddy statement, his friend (J.C.) stated that this event took place on the road between Kabin-Buri and Korat. (See March 2009 statement). Although he could not remember the names of the soldiers who were killed, the Veteran conducted research and learned the names of six soldiers from the 538th Engineer Battalion who were killed from June 1966 to July 1967. Those names are: J.B., L.G., M.G., S.H., L.M., and J.N. (See January 2012 statement). 2) Finding the bodies of 75 men, women, and children who were traveling on a bus that was ambushed. He said this event occurred in August 1966. (See January 2008 statement). 3) Finding a dead driver who was hauling ammunition and setting his body on fire in October 1966. (See January 2008 statement). In another statement, he said this event (or similar one) occurred in March 1967 (See May 2007 statement). 4) Finding a dead driver who was hauling ammunition and taking the bones as souvenirs in November 1966. (See January 2008 statement). In addition, the Veteran reported that he had a son who died shortly after he was born in May 1968. He reported that he had to travel home to bury his son and that this was very difficult for him. He submitted pictures of his son's funeral and his wife attested to these events. The Board finds this evidence credible and that this event has been sufficiently verified. Regarding the remaining stressors listed above, the Board finds that additional efforts to verify them should be taken. Initially, the Board notes that only portions of the Veteran's service personnel records are of record. On remand, a copy of his entire service personnel record should be obtained. The AOJ should also request that the appropriate agencies, to include JSRRC, the National Archives and Records Administration (NARA), and National Personnel Records Center (NPRC), research the unit histories of the 538th Engineer Battalion and conduct any other relevant research to verify the above-listed stressors. The AOJ should also determine whether the buddy statement provided by J.C. in March 2009 is consistent with the time, place, and circumstances of his service and the Veteran's service. See VA Adjudication Manual, M21-1MR, Part IV, subpart ii, Chapter 1, Section D(13)(l). III. Medical Examinations VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. As noted above, the Board has determined that the Veteran is presumed to have been exposed to herbicides, to include Agent Orange, during service. He has also submitted competent medical evidence of a current skin disorder that may be linked to chemical exposure. Under these circumstances, the Board finds that a VA examination to determine the nature and etiology of his current skin disorder is warranted. Also, the Board has determined that at least one of the Veteran's reported in-service stressors has been sufficiently verified, i.e., the death of his newborn son in May 1968. He has submitted competent medical evidence suggesting a link between this event and his current psychiatric disorder; however, there is insufficient information to make a determination on this claim. (See May 2005 report by a private psychologist). Therefore, the Board finds that a VA examination to determine the nature and etiology of his current psychiatric disability is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the Veteran's entire military personnel record. 2. Obtain the Veteran's VA treatment records from the VA North Texas Health Care System from July 2010 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e) . 3. With any needed assistance from the Veteran, obtain all relevant treatment records from Drs. Z. and F. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 4. Determine whether the buddy statement provided by J.C. in March 2009 is consistent with the time, place, and circumstances of his service and the Veteran's service. See VA Adjudication Manual, M21-1MR, Part IV, subpart ii, Chapter 1, Section D(13)(l). 5. The AOJ must thoroughly review the Veteran's claims file and prepare a summary of the Veteran's reported stressors. The summary must include, but is not limited to, the above-listed reported stressors. The AOJ must send this summary and the information of record regarding the Veteran's service, including copies any records relevant to his PTSD claim, to the appropriate agency, to include the JSRRC, NARA, and NPRC, and ask that the agency provide any available information that might corroborate the Veteran's alleged in-service stressors. Any additional actions necessary for independent verification of the alleged stressors, including follow-up action requested by the contacted entity, should be accomplished. 6. Following receipt of any outstanding treatment records and after securing any corroborating evidence from the aforementioned agencies, regardless of whether or not the any of the reported stressors are verified, the AOJ must arrange for a VA psychiatric examination with the appropriate clinician to determine the nature and etiology of any claimed acquired psychiatric disorder, to include PTSD. The examiner is hereby notified that the death of the Veteran's newborn son during service has been conceded. If verification of any other reported stressor has been conceded, the AOJ must include that information in its examination request. A copy of this remand, any stressor verification information, and all relevant medical records should be made available to the examiner, to include any pertinent records in the Veteran's electronic folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. The examiner must review the pertinent evidence and undertake any indicated studies. The examiner must then provide a diagnosis for each psychiatric disability found, made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2013). For each diagnosis, the examiner should provide an opinion as to whether the disability began during service, was chronically worsened during service, is related to any incident of service, or was manifest as a psychosis within one year after discharge from service. If the examiner diagnoses the Veteran with PTSD, he or she must specify the stressor or stressors underlying the diagnosis. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressor(s). The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. Examples of reasons are the lack of appropriate expertise on the part of the clinician, the Veteran being an unreliable historian, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion. 7. Following receipt of any outstanding treatment records, arrange for the Veteran to undergo VA examination for the purpose of determining the nature and etiology of any skin disorder. Any indicated diagnostic tests and studies must be accomplished. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner must identify any current skin disorder. Then, the examiner is to opine whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was incurred in or aggravated by the Veteran's service, to include exposure to herbicides/Agent Orange therein. The examiner must also address the September 2006 private treatment records from Dermatology Associates of Tyler showing that the Veteran was diagnosed with folliculitis, which was thought to be likely chemically-induced. The examiner should render an opinion as to whether it is at least as likely as not that the folliculitis was related to in-service herbicide/Agent Orange exposure. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 8. After any additional development deemed necessary is accomplished, the AOJ must readjudicate the claims remaining on appeal. 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 issue. 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. 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). (CONTINUED ON NEXT PAGE) The claims must be afforded expeditious treatment. The law requires that all claims 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. 2013). ______________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs