Citation Nr: 1619841	
Decision Date: 05/16/16    Archive Date: 05/27/16

DOCKET NO.  13-36 313	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicides.

2.  Entitlement to service connection for a variously diagnosed psychiatric disorder, to include posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for type 2 diabetes mellitus, to include as due to exposure to herbicides

4.  Entitlement to service connection for a skin disability, to include as due to exposure to herbicides.

5.  Entitlement to increases in the ratings for bilateral hearing loss, currently assigned "staged" ratings of 0 percent prior to August 26, 2015, and 20 percent from that date.



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from November 1954 to June 1963 (and had prior inactive duty service).  The matter of service connection for Parkinson's disease is before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO).  The remaining matters are on appeal from an August 2012 rating decision that, in pertinent part, granted service connection for bilateral hearing loss, rated 0 percent, effective April 13, 2011.  In January 2013, a hearing was held before a decision review officer (DRO).  In August 2014, a videoconference hearing was held before the undersigned.  Transcripts of both hearings are associated with the record.  In November 2014, the case was remanded for further development.

The Veteran had been represented by an attorney who is no longer certified to represent claimants before VA.  At the August 2014 hearing, he was represented by another attorney; however, the record does not include a power of attorney designating that attorney as the Veteran's representative (it was to be forwarded to the Board).  In September 2014, VA notified the Veteran that if he wished to be represented, he would need to complete an enclosed VA Form 21-22 and that if he did not respond, VA would assume he was representing himself.  He did not respond.  Accordingly, the Board will proceed in this appeal with the understanding that the Veteran is appearing pro se.

The matters of service connection for a low back disability and entitlement to special monthly pension based on the need for aid and attendance (or housebound status) were addressed in the last remand.  However, as a February 2016 rating decision granted service connection for low back disability, and special monthly pension based on the need for aid and attendance effective July 15, 2011 (the date of claim), those matters are no longer before the Board.  That decision also increased the rating for bilateral hearing loss to 20 percent from August 26, 2015.  The issue is characterized to reflect that "staged" ratings are assigned, and that both "stages" are on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of service connection for a variously diagnosed psychiatric disability is being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  Parkinson's disease was not manifested during service or the first postservice year; the Veteran is not shown to have served in Vietnam during the Vietnam era or to have otherwise been exposed to herbicide agents during service; and his diagnosed Parkinson's disease is not shown to be related to his service.

2.  The Veteran's diabetes mellitus was not manifested during service or the first postservice year; he is not shown to have served in Vietnam during the Vietnam era or to have otherwise been exposed to herbicide agents during service; and his diabetes is not shown to be related to his service.

3.  The Veteran is not shown to have a chronic skin disability.

4.  The Veteran's hearing acuity is not shown to have been higher than level II in either ear prior to August 26, 2015; from that date, his hearing acuity is not shown to have been higher than level IV in the right ear or level VII in the left.


CONCLUSIONS OF LAW

1.  Service connection for Parkinson's disease is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015).

2.  Service connection for diabetes mellitus is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015).

3.  Service connection for a skin disability is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).

4.  A compensable rating for hearing loss was not warranted prior to August 26, 2015; a rating in excess of 20 percent is not warranted from that date.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.85, Code 6100 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  By correspondence dated in August 2011, VA notified the Veteran of the information needed to substantiate and complete his service connection claims, to include notice of the information that he was responsible for providing, the evidence that VA would attempt to obtain, and how VA assigns disability ratings and effective dates.  

The matter of the rating for bilateral hearing loss is on appeal from the initial rating assigned with the grant of service connection.  The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006).  A December 2013 statement of the case (SOC) properly provided notice on the downstream issue of entitlement to an increased initial rating for the bilateral hearing loss.  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked.  During the August 2014 hearing, the undersigned identified the issues on appeal and the elements necessary to substantiate the claims, and suggested submission of evidence that could assist in substantiating the claims.  A deficiency in the conduct of the hearing is not alleged.  Thus, the duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied.  The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate.

The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured.  The Veteran receives Social Security Administration (SSA) benefits, but VA's request for SSA records brought the response that they had been destroyed.  While VA examinations have not been conducted in conjunction with the claims seeking service connection for Parkinson's disease and type 2 diabetes mellitus, because there is no evidence that such diseases may be related to his service, the low threshold standard for determining when a VA examination is necessary is not met.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  August 2015 and September 2015 VA examinations were conducted in conjunction with these claims.  The reports of the examinations contain sufficient findings to allow for the necessary determinations to be made, and are therefore adequate for rating purposes.  

The Board's November 2014 remand ordered, in pertinent part, that the Veteran's SSA records and updated VA treatment records be secured for the record and that he be scheduled for a skin examination (which was conducted in September 2015).  The AOJ has complied with those requests to the extent possible.  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  [The Board is aware that the Veteran suffers from dementia and is unrepresented, and therefore requires more assistance than the average claimant.  However, for the reasons explained in greater detail below, the Board finds that some of his allegations are inherently implausible and further development to confirm such theories of entitlement does not fall within VA's duty to assist, and moreover would only unduly delay adjudication of these matters on the merits without raising a reasonable possibility of substantiating his claims.]  

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the record.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service.  38 C.F.R. § 3.303(d).  Service connection may be established by showing continuity of symptomatology after discharge.  38 C.F.R. § 3.303(b).  Certain chronic diseases, to include diabetes mellitus and organic diseases of the nervous system, may be presumed to have been incurred or aggravated in service, if they are manifested to a compensable degree within a specified period of time postservice (one year for diabetes and organic diseases of the nervous system).  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

Certain diseases, to include Parkinson's disease and type 2 diabetes, may also be service connected on a presumptive basis if manifested in a Veteran who served in Vietnam during the Vietnam Era (or was otherwise exposed to herbicide agents during active service), even if there is no record of such disease during service.  38 U.S.C.A. § 1116(a)(1), (2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  Notably, 38 C.F.R. § 3.307(a)(6) specifically defines "herbicide agents" as chemicals 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 (emphasis added)."  

To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  If the preponderance of the evidence is against the claim, the claim is to be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Parkinson's Disease and Type 2 Diabetes Mellitus (Agent Orange Claims)

The Veteran's STRs are silent for any complaints, treatment, or diagnoses related to Parkinson's disease or diabetes mellitus, and nothing related to such disabilities was noted on service separation examination.  VA treatment records show the first notation of diabetes in March 1993; the first notation of Parkinson's disease is a November 2005 provisional diagnosis.  

In August 2011, the Veteran stated that he was stationed at a French Foreign Legion Base in Morocco before being sent into Vietnam to relieve troops that were already there.  He indicated that he handled Agent Orange containers in Vietnam.  He also reported having Agent Orange sprayed on him.  He said the entirety of his activity in Vietnam was covert and records of such service were burned when he returned home.  An August 2011 service department response to a request for information regarding the Veteran's service indicates there is no evidence to substantiate he had any service in Vietnam or exposure to herbicide agents.  

At the January 2013 Decision Review Officer (DRO) hearing, the Veteran testified that he was transferred to Vietnam to help train snipers, and noted that his DD-214 listed his military occupational specialty as small arms instructor.  He indicated that he was part of "black bag" operations and had a top secret clearance.  He said that his unit in Morocco had no designation and officially did not exist.  After a month, he was flown to Vietnam in a plane carrying barrels of Agent Orange, which he claimed he handled.  He reported going to Vietnam about once a week, though he said they would occasionally stay a week at a time with no set pattern.  He reported being in combat situations where people were killed, and he was told not to leave any enemies alive.  These temporary duty assignments allegedly occurred between December 1958 and January 1960.  

At the August 2014 videoconference hearing before the undersigned, the Veteran related that he carried Agent Orange containers off a C-47 aircraft and dumped it on a grassy runway in North Vietnam.  He remembered being sprayed with something which he believed was Agent Orange twice in one night.  The first spraying was apparently because another service member was seen heating up a cup of coffee with a zippo lighter; the second spraying allegedly happened after the Veteran had finished a mission.  He said they were cleaning up, and were each sprayed down with chemicals.  He also said that Agent Orange smelled like geraniums, which he recognized because he had raised them with his grandmother.  As a result, he was able to locate a leaking barrel of Agent Orange, he found it overturned, and the men sent to right it came back covered in chemicals and "were dead."  

As the Veteran's STRs are silent for complaints, treatment, or diagnoses related to Parkinson's disease or diabetes mellitus, service connection for either disability on the basis that they began in service and have persisted is not warranted.  Absent related events or injuries in service, service connection for such disabilities is also not warranted on the basis that they are otherwise directly related to such events or injuries in service.  Moreover, while diabetes mellitus and Parkinson's disease (as an organic disease of the nervous system) are both chronic diseases under 38 C.F.R. § 3.309(a), there is nothing suggesting that either was manifested in the first postservice year.  Thus, service connection for such disabilities on a presumptive basis (as chronic diseases under 38 U.S.C.A. § 1112) is also not warranted.  

While Parkinson's disease and diabetes are also enumerated disabilities that may be service connected on a presumptive basis if manifested in a Veteran exposed to herbicides in service, there is nothing in the record to suggest that the Veteran was so exposed during service.  By his own accounts (which the service department could not verify), he served in Vietnam between 1958 and 1959 or 1960, which falls outside the Vietnam Era and the presumptive period (beginning January 9, 1962, and ending on May 7, 1975) when herbicide-spraying in Vietnam took place.  Therefore, he is not entitled to consideration of his claim under the presumptive provisions of 38 U.S.C.A. § 1116.  While this does not preclude him from showing he was otherwise exposed to herbicides in service per se, the definition of "herbicide agents" specifically refers to defoliants used between 1962 and 1975 because these dates mark the duration of the United States' use of tactical herbicides in Vietnam as part of Operation Ranch Hand.  See Department of Veterans Affairs, Facts About Herbicides (2015), available at http://www.public health.va.gov/exposures/agentorange/basics.asp.  Moreover, his descriptions of his exposures (i.e., indicating the herbicides were sprayed directly onto his person) are inconsistent with the basic purpose of the herbicide agents (for defoliation, and not used on people) and are inherently implausible.  Notably, as is discussed below, an August 2012 VA psychiatric examiner found the Veteran to be a poor historian.  He has presented no affirmative evidence supporting his allegation of herbicide agents being used, stored, or transported to Vietnam in 1958 and 1959.  While the Board does not question his belief that he was engaged in covert "black bag" operations (of which there are no records), it may not simply accept his allegations as fact absent any corroboration.  Consequently, and bearing in mind that he suffers from dementia, the Board finds his allegations of exposure to herbicide are less than credible and not probative evidence of exposure to herbicide agents in service.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995).

Under the circumstances, the Board finds there is no competent and credible evidence that the Veteran was exposed to herbicides during service.  Accordingly, service connection for Parkinson's' disease and diabetes mellitus on the basis that they are related to exposure to herbicides is also not warranted.  The preponderance of the evidence is against these claims, and the appeals in these matters must be denied.

Skin Disability

The Veteran's STRs show staph lesions were noted on the Veteran's face in March 1960.  In September 1960, a facial pimple was noted.  On May 1963 service separation examination, no skin problem was diagnosed or reported.  

In July 2003, the Veteran complained of skin lesions on his scalp and face.  He said they had been there for several years, and had become somewhat uncomfortable.  The provider noted a slightly rough, minimally raised 2.0 by 2.0 centimeter lesion on his scalp, and a raised, rough, light brown lesion on his left temple.  There was also a small skin tag near his right lateral canthus which caused him some problems with vision; a skin disability was not diagnosed.  A May 2006 VA record notes a diagnosis of perianal dermatitis, with no further detail or follow-up.  In January 2007, the Veteran reported a broken skin area with no drainage and lumps under the skin; no skin disability was diagnosed.  In July 2011, he claimed he had an unspecified skin problem as a result of exposure to herbicides.  

On August 2012 VA psychiatric examination, the examiner noted an Axis III diagnosis of unspecified dermatosis.  At the January 2013 DRO hearing, the Veteran testified that he has blood blisters on his left arm, as well as flaky spots and scabs on the top of his head.  He said he noticed skin problems while at Bunker Hill, prior to discharge, and that they have been present ever since.  On September 2015 VA skin examination, the only diagnosis was an infected pimple (in 1960).  The Veteran said he was seen in sick call for an infected pimple on his back during service that was treated with Bacitracin.  There was no follow-up for the infection; he was felt to be a poor historian.  After reviewing the skin, no disease process was found, and it was noted that the Veteran was not being treated for any skin infections, rashes or diseases.  January 2016 VA records note various abrasions, lacerations, and scabbing but no chronic skin disability.

The evidence shows that the Veteran has had a history of sporadic skin complaints during service and thereafter.  However, his complaints during service were isolated and acute, and did not require follow-up treatment or continued monitoring; a skin complaint or skin abnormality was not noted on service separation examination.  Postservice skin complaints were likewise isolated and acute; in two decades of VA records, there are only a handful of documented skin complaints, none of which resulted in a diagnosis of a chronic skin disability or prompted continued treatment or follow-up evaluation.  Notably, on the most recent September 2015 VA examination, the examiner noted that the Veteran was not shown to have a current skin disability or to be receiving ongoing treatment for a skin disability.  Consequently, the preponderance of the evidence shows that the Veteran's skin complaints during and after service were acute and transitory and did not represent a chronic skin disability.  Although the Board acknowledges the Veteran's own reports of noticing a skin problem on his scalp during service and its persistence thereafter (and has no doubt his belief is sincere), he is not competent to assign a skin disease diagnosis to any skin irregularity he may have felt on his scalp; that is a medical question and requires medical expertise.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).  While he may be competent to report observable skin problems, whether a lay-observable symptom is a manifestation of a chronic skin disability is the province of medical professionals.  No medical professional has diagnosed a scalp skin chronic disability.

Bilateral Hearing Loss

Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness.  The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average hearing threshold.  The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation.  Table VIa is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86).  One such pattern occurs when puretone thresholds at each of the four specified frequencies is 55 decibels or more.  Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86.  

On August 2012 VA examination, audiometry revealed that puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
40
90
95
LEFT
25
35
60
75
80

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 98 percent in the left.  The average puretone thresholds were 64 decibels in the right ear and 62 in the left.  Under Table VI, the Veteran had level II hearing acuity in each ear, which warrants a 0 percent rating under Table VII.  The Veteran said his hearing loss prevents him from hearing people unless they are loud, and that he has to listen to telephone conversation on "speaker" mode.

On August 26, 2015 VA examination, audiometry revealed that puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
45
95
90
LEFT
25
35
70
80
65

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 56 percent in the left.  The average puretone thresholds were 65 decibels in the right ear and 63 in the left.  Under Table VI, the Veteran had level IV hearing acuity in the right ear and level VII in the left, which warrants a 20 percent rating under Table VII.  The Veteran said his hearing loss prevents him from hearing high pitched noises.

There are no other audiometric findings for the period for consideration.  Accordingly, there is no audiometry in the record which warrants a compensable rating prior to August 26, 2015, or a rating in excess of 20 percent from that date.  As noted previously, because assignments of disability ratings for hearing impairment are derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Diagnostic Code 6100.  Accordingly, the Board is compelled to conclude that the preponderance of the evidence is against the claims for increases in the "staged" ratings for the bilateral hearing loss.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  

The Board has considered whether the claim warrants referral for consideration of an extraschedular increased rating.  However, while the Board acknowledges the Veteran's assertions regarding functional impairment of his hearing loss (and he is competent to describe such impairment), the problems he described (difficulty hearing conversation and high frequency sounds) are fully encompassed by the schedular ratings assigned.  Thus, those criteria are not inadequate, and referral for extraschedular consideration is not necessary.  See Thun v. Peake, 22 Vet. App. 111 (2008).  Additionally, there is no evidence or allegation that the Veteran's bilateral hearing loss renders him unemployable.  Therefore, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record in the context of the instant claim.  See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009).

As the preponderance of the evidence is against the claims seeking service connection for Parkinson's disease, type 2 diabetes mellitus, and a skin disability, and increased "staged" ratings for bilateral hearing loss, the benefit of the doubt rule does not apply; the appeals in these matters must be denied.


ORDER

Service connection for a skin disability is denied.

Service connection for Parkinson's disease is denied.

Service connection for type 2 diabetes mellitus is denied.

Ratings for bilateral hearing loss in excess of 0 percent prior to August 26, 2015, and in excess of 20 percent from that date, are denied.


REMAND

The Board's November 2014 remand ordered, in part, that the AOJ secure for the record complete service personnel records showing all duty assignments indicating units, locations, and military occupational duties, and to thereafter list each alleged stressor in service by unit, location, date, and nature of event (to the extent provided), and make a formal determination for the record (to include rationale) as to whether there is credible supporting evidence of any alleged stressor event in service.  It does not appear that any effort was made to secure additional service personnel records, and the formal finding by the AOJ regarding stressors simply notes the Veteran provided no information regarding his alleged stressors.  This is patently incorrect, as he has, on multiple occasions (but most recently during the August 2014 hearing), stated that he was sent to Vietnam on temporary duty assignments near Hanoi while officially stationed in Morocco between 1958 and 1959, and that he trained service men to be snipers.  His service personnel records would either support or contradict his allegations.  Thus, the Board finds the AOJ has not complied with the prior remand instructions, and corrective action is necessary.

The November 2014 remand also ordered that a new VA psychiatric examination be conducted to specifically address whether the Veteran met the criteria for PTSD based on a verified stressor, and whether any additional psychiatric diagnoses may otherwise be related to the Veteran's military service.  The September 2015 VA psychiatric examiner noted that the Veteran has an unspecified psychiatric disability related to his reported (and as of yet unverified) stressors in service, but provided no rationale.  Therefore, that opinion is inadequate.  Moreover, if additional service personnel records are located and any alleged stressor is corroborated, the September 2015 VA examiner's finding regarding PTSD would be inadequate.  Consequently, a new examination is necessary.

Finally, the Board notes that the Veteran receives ongoing VA treatment.  The most recent records of such treatment in the record are dated in February 2016.  Updated records of his VA treatment may contain pertinent information, are constructively of record, and must be secured.

Accordingly, the case is REMANDED for the following:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. The AOJ should secure for the record copies of the Veteran's service personnel records showing all of his duty assignments, indicating units, locations, and military occupational duties.
2. The AOJ should also secure for the record all updated records (i.e., those not already in the record) of VA evaluations or treatment the Veteran has received for his psychiatric disability dated since February 2016.

3. Thereafter, the AOJ should ask the Veteran to make a listing identifying each of his alleged stressor events in service by unit (in which he was serving at the time), location, dates, and nature of event (and any other persons involved), and then attempt to verify such stressors (specifically addressing his reported stressors on temporary duty assignment in Vietnam in 1958 and 1959) with appropriate sources, including the Joint Services Records Research Center (JSRRC), and make a formal determination for the record (to include rationale) as to whether there is credible supporting evidence of any alleged stressor event in service.  The units in which the Veteran served in 1958 and 1959 (and their locations) should be noted.  The AOJ should also make a formal finding for the record regarding whether the Veteran served in circumstances consistent with a fear of hostile military or terrorist activity.

4. Then, the AOJ should arrange for the Veteran to be examined by an appropriate VA psychiatrist or psychologist to determine the nature and etiology of his psychiatric disability, and specifically whether he has PTSD related to a stressor in service.  The examiner must be advised of the AOJ's findings regarding whether there is corroborating evidence of a stressor event in service, and whether the Veteran served in circumstances consistent with a fear of hostile military or terrorist activity.  The entire record must be reviewed in conjunction with the examination.  Following examination of the Veteran and review of his record, the examiner must provide opinions that respond to the following:

a. Please identify by diagnosis each psychiatric disability entity found.  Specifically, is it at least as likely as not (a 50 % or better probability) the Veteran has PTSD related to a corroborated stressor event in service (or based on a fear of hostile/terrorist activity if the circumstances of his service are determined by the AOJ to be consistent with such fear)?  

If PTSD is not diagnosed, please explain why the Veteran does not meet the criteria for such diagnosis.  The examiner should comment on the August 2012 VA examiner's findings.

b. For each psychiatric disability entity other than PTSD diagnosed, opine whether such is at least as likely as not (a 50 % or better probability) etiologically related to the Veteran's service, to include his complaints of a nerve condition/being nervous noted therein.

All opinions must include complete rationale.

5. The AOJ should then review the record and readjudicate this claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran opportunity to respond, and return the record to the Board.

The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs