Citation Nr: 1613142 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 09-19 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1969 and from January 1991 to June 1991, with additional reserve service. These matters come before the Board of Veteran's Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran testified at a December 2009 Decision Review Officer (DRO) hearing, a transcript of the hearing is of record. The Veteran initially submitted a claim of service connection for adjustment disorder, to include a nervous condition, a sleep disorder (also claimed as anxiety), and a conversion reaction. Generally, the scope of a mental health disability claim includes any psychiatric disorder that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The medical evidence of record reflects additional diagnoses of depressive disorder, anxiety disorder, PTSD, and panic disorder during the pendency of the appeal. As such, the Board has re-captioned the Veteran's claim as shown on the title page to better reflect the evidence. Id. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In November 2014, the Board remanded the claims for an additional VA examination to determine whether any currently or previously diagnosed psychiatric disability was related to active duty service. The Board also instructed the RO to obtain outstanding VA treatment records, personnel records, and private treatment records. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders and provides that the Secretary of VA has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons stated below, the Board concludes that the RO did not substantially comply with the Board's remand directives, and an additional remand is required. I. Psychiatric Disability In November 2014, the Board remanded the claim to obtain private treatment records from L.C., Psy. D., the Veteran's private psychologist. In December 2014, the RO sent the Veteran a letter requesting treatment records from any provider who treated him for his disorders, and enclosed authorization forms should the Veteran want assistance obtaining such treatment records. The RO informed the Veteran that VA was particularly interested in the treatment he received from his psychologist Dr. L.C., however, the Veteran failed to provide the treatment records or return the enclosed authorization forms. As these records may contain information and evidence relevant to the claim, the Board finds that the Veteran should be afforded one more opportunity to submit copies of these records to VA, or complete authorization forms permitting VA to obtain these records on his behalf. The Veteran underwent a VA examination in March 2015, and an addendum opinion was provided in August 2015. Upon review, the Board finds the VA examination and addendum are inadequate for purposes of determining entitlement to service connection for a psychiatric disability. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner did not provide an opinion with respect to whether any currently or previously diagnosed psychiatric disorder was related to active military service. The VA examiner found that the Veteran's claimed stressor was not adequate to support a diagnosis of PTSD. The examiner stated it would be speculative to rule out or rule in the Veteran's claimed PTSD diagnosis because the claims file was unavailable to review the claimed military mental history. Additionally, the VA examiner did not address whether the Veteran's other psychiatric diagnoses, to include, adjustment disorder, a sleep disorder, a conversion reaction, depressive disorder, anxiety disorder, or panic disorder are related to service. II. Diabetes Mellitus The Veteran asserts that he was exposed to Agent Orange between January 1968 and September 1969 while he was stationed in Korea. The Veteran contends that while in Korea he served as an inspector and inventoried explosives. He asserts that on many occasions he served in the Korean DMZ in support of the 2nd division or the 2nd Battalion of the 38th Infantry by doing inventory for all of their ammunition supply points. He also contends that he carried inventory and chemical agents such as Agent Orange throughout Korea. A veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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. See 38 C.F.R. § 3.307(a)(6)(iv)(2015). The list of units that the DoD has determined to have served in or near the DMZ can be found at M21-1MR, Part IV, subpart ii, Chapter 1, Section H. The Veteran's DD-214 indicated that he was assigned to the 58th Ordnance Company, Eighth Army while he served in Korea. While the Veteran's assigned unit is not listed as having been exposed to herbicides, the Veteran asserts that he was exposed to herbicides while serving as support personnel to units in or near the DMZ. Specifically, the Veteran contends that he served in support of the 2nd Battalion, 38th Infantry, a unit recognized by the DoD as having operated in or near the Korean DMZ. Additional development action is warranted when a Veteran was not specifically assigned to one of the enumerated units, but alleges exposure in Korea. M21-1MR, Part IV, subpart ii, Chapter 1, Section H, VA Adjudication and Procedures Manual. Specifically, the RO must send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. Additional development actions are also warranted when a Veteran who was not specifically assigned to one of the units, but alleges exposure in locations other than the Republic of Vietnam, Korean DMZ, or Thailand. Id. Such steps include asking the Veteran for approximate dates, location(s), and nature of the alleged exposure to herbicides. If the Veteran responds, the RO must refer the Veteran's detailed description to Compensation Service and must also request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed. If the claimed use of herbicides is not confirmed, the RO must submit a request to the JSRRC for verification of exposure to herbicides if sufficient information was provided. The Board notes that the Veteran's description of herbicide exposure throughout Korea, including the Korean DMZ, was not sent to the JSRRC for verification. Additionally, the record does not show that the RO referred the Veteran's case to Compensation Service or requested a review of the DoD's inventory. During the pendency of this appeal, the Veteran has provided specific details regarding his activities throughout Korea, to include the Korean DMZ. As such, the Board finds that the claim must be remanded to refer the Veteran's description of herbicide exposure to Compensation Service and DoD, and, if necessary, to the JSRRC. In November 2014, the Board remanded the claim to obtain the Veteran's personnel records to verify service in on near the Korean DMZ. In December 2014, the RO requested the Veteran's personnel records from the National Personnel Records Center (NPRC) through the Personnel Information Exchange System (PIES), but used the incorrect social security number. The RO received a negative response and was advised to check the Defense Personnel Records Information Retrieval System (DPRIS). The RO then requested the records from DPRIS using an incorrect social security number. The DPRIS search resulted in a negative response and a notification from DPRIS indicated that Army records for those discharged prior to October 1, 2002 were not available through DPRIS. Accordingly, additional development is necessary to ensure that the Veteran's complete service personnel records have been obtained. Moreover, it appears that a search of the Veteran's unit history records from the 58th Ordnance Company, Eighth Army has never been undertaken. As these records may contain information relevant to corroborate the Veteran's statements regarding his proximity to and activities near the DMZ, the Board finds that a remand is necessary in order to attempt to obtain the Veteran's unit history records. In addition, VA treatment records indicated the Veteran received compensation from the Social Security Administration (SSA). In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the Court found that VA's duty to assist specifically included requesting information from other Federal departments. The Court has further held that VA must obtain SSA records which may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). Moreover, the Court has determined that, "[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained." Hyatt v. Nicholson, 21 Vet. App. 390 (2007). The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claims for VA compensation. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). However, that possibility cannot be excluded under the circumstances presented here, and the RO should request the Veteran's SSA records. See Golz, 590 F.3d at 1321. Finally, as it appears the Veteran receives continuous treatment through the VA, the Board finds the RO should obtain any outstanding VA treatment records dated from October 2014 to the present. Accordingly, the case is REMANDED for the following actions: 1. Contact the Social Security Administration and request a copy of any decision made pursuant to a claim of the Veteran for disability benefits, as well as the medical records upon which any decision was based. All requests and responses, positive and negative, should be associated with the Veteran's electronic file. Efforts to obtain these and any other Federal records must continue until the RO determines that the records sought do not exist or that further efforts to obtain the same would be futile. If it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) (2015) must be provided to the Veteran, and he must then be afforded an opportunity to respond. 2. Obtain and associate with the record all VA treatment records dated from October 2014 to the present for the Veteran. All actions to obtain the requested records should be fully documented in the electronic file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 3. Obtain the necessary authorization from the Veteran and then attempt to obtain any additional records from Dr. L.C., from April 2008 to present. To the extent that an attempt to obtain any records is unsuccessful, the record must contain documentation of the attempts made, and the Veteran and his representative must be informed of the negative results and be given the opportunity to secure the records. 4. Obtain copies of any outstanding personnel records. All efforts to obtain these records must be documented in the claims file. In the event that it is determined that the records are unavailable, a formal determination, pursuant to 38 C.F.R. § 3.159(c)(2) (2015), must be made and the Veteran must be provided appropriate notice under 38 C.F.R. § 3.159(e). 5. In accordance with the VA Adjudication Procedures Manual, the RO/AMC should: (a) Furnish the Veteran's detailed description of herbicide exposure to Compensation Service at VAVBAWAS/CO/211/AGENTORANGE and request a review of DoD's inventory of herbicide operations to determine whether herbicides were used as claimed. When requesting information regarding in-service herbicide exposure, the RO/AMC should inquire as to whether the Veteran's unit, specifically the 58th Ordnance Company, Eighth Army served in support personnel units near the DMZ; (b) If Compensation Service does not confirm that herbicides were used as claimed, send a request to JSRRC for verification of exposure to herbicides. All attempts to secure this evidence must be documented in the claims file by the RO/AMC. 6. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder diagnosed during the pendency of the appeal. The electronic file must be made available to the examiner for review in conjunction with the examination. All indicated tests and studies must be performed, and all pertinent symptomatology and findings must be reported in detail. After a review of the evidence, to include the VA treatment records and examination report and lay statements, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any psychiatric disability began in service, was caused by service, or is otherwise related to service. In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. 7. After completing the above development, re-adjudicate the claims remanded herein. If any benefit sought on appeal remains denied, provide the Veteran and his representative a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).