Citation Nr: 1622281 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 11-20 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tremors of the arms and hands. 2. Entitlement to service connection for residuals of colon cancer, including as secondary to Agent Orange exposure. 3. Entitlement to service connection for diabetes mellitus, including as secondary 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 a disorder manifested by sleep impairment. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Department of Veterans Affairs INTRODUCTION The Veteran served on active duty in the United States Navy from January 1963 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board observes that the Veteran's initial claims were characterized as entitlement to service connection for depression and service connection for anxiety with terrible anger, but that the Veteran has also been diagnosed with PTSD and possible panic disorder. As such, the issue on appeal has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Board notes that, pursuant to his request in the substantive appeal, the Veteran was scheduled for a hearing before the Board. However, the Veteran failed to report for the hearing as scheduled. As such, the Board deems his hearing request to be withdrawn and will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that he has been diagnosed with diabetes mellitus, colon cancer, and tremors of the arms and hands, and that these disorders are causally related to his active service, including Agent Orange exposure during service. In addition, the Veteran asserts that he has an acquired psychiatric disorder, including PTSD, due to his service. He also contents that he has difficulty sleeping due to the stress of his tinnitus and tremors. The Veteran contends that he was exposed to Agent Orange during his service. The Veteran reports that he served on a ship in the waters off the coast of Vietnam, and alleges service within the land borders of Vietnam, possibly in the "brown waters" of Vietnam. According to the Veteran, the Veteran had service in Vietnam in 1964; a National Personnel Records Center (NPRC) search indicates that the Veteran had service aboard the USS Small (DDR-838), and that, during multiple time periods between June 1964 and October 1964, the ship was located in the "official waters" of Vietnam. However, the available evidence does not confirm whether these waters were inland or coastal waterways, and whether the USS Small docked in Vietnam or sent boats ashore in 1964. In this regard, the Board notes that service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 101(29)(A); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2015); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009) (holding that a Veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). Notably, the Veterans Benefits Administration (VBA) has historically extended the herbicide presumption to naval ships which entered Vietnam's inland waterways or those which docked to the shore, but did not extend the presumption to naval ships operating in open water ("brown" versus "blue" water ships). See, e.g., Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated December 9, 2014), VA Adjudication Procedure Manual M21-1 (M21-1), pt. IV, subpt. ii, § 1.H.2.b. Significantly, in April 2015, the United States Court of Appeals for Veterans Claims, in addressing a claim for presumptive service connection based on herbicide exposure while that veteran's ship was anchored in Da Nang Harbor, held that the rationale underlying VA's designation of Da Nang Harbor as an offshore, rather than an inland, waterway, was inconsistent with the identified purpose of the statute and regulation: providing compensation to veterans based on the likelihood of exposure to herbicides. Gray v. McDonald, 27 Vet. App. 313, 326 (2015). As a result of the Gray decision, the VBA revised its list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (updated February 5, 2016). The USS Small (DD-838) had service in the close coastal waters and repeatedly sent boats ashore in 1966, after the Veteran's service; however, it remains unclear whether the USS Small send small boats ashore prior to that date or docked in Vietnam. It is also unclear whether the Veteran had service on any other ships, and went ashore while aboard those ships. The Board observes that the Veteran's service personnel records, other than his DD Form 214, are not of record, and it is unclear whether efforts have been made to obtain his service personnel records. The Board acknowledges that the RO attempted to obtain the Veteran's dates of service in Vietnam from the NPRC, and as noted earlier, the NPRC could not confirm or rebut the Veteran's assertions that he had service in Vietnam, but points out that no attempt has been made to obtain his personnel records or otherwise confirm any Vietnam service from the Defense Personnel Records Imaging System (DPRIS), the Joint Services Records Research Center (JSRRC), and/or the National Archives and Records Administration (NARA). Furthermore, the RO did not attempt to obtain any other official records, such as unit histories. A July 2009 memorandum indicates that the RO made no further efforts to confirm whether the Veteran had service in Vietnam. VA must make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(b), (c) (VA must make a "reasonable effort" to obtain all relevant records, including records pertaining the claimant's service). The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d). The Veteran has not yet been provided with VA examinations with regard to his claims for service connection for tremors of the arms and hands, residuals of colon cancer, diabetes mellitus, an acquired psychiatric disorder, including PTSD, and claimed sleep disorder. As such, the Board finds that the Veteran should be afforded VA examinations regarding these. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the disabilities on appeal should be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to obtain and associate with the record copies of the Veteran's VA treatment records, if any, associated with the claims on appeal. 2. Send a summary of the Veteran's alleged presence in Vietnam, to include dates, ships, and a copy of his DD Form 214 to the JSRRC. The JSRRC should be requested to provide any additional information that might corroborate his service in Vietnam, including any "brown" or "blue" water service. 3. Request all available service personnel or other official records from NPRC, NARA, and DPRIS. If additional service records or unit histories can be found, or if they have been destroyed, ask for specific written confirmation of that fact. 4. If the Veteran is not found to have service in Vietnam, the Veteran should be afforded a VA diabetes mellitus examination to determine the nature and etiology of any diabetes mellitus which may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any current diabetes mellitus was caused by his active duty. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 5. The Veteran should be afforded a VA examination to determine the nature and etiology of any residuals of colon cancer that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any current residuals of colon cancer is related to any event or injury during service, including any confirmed Agent Orange exposure. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 6. The Veteran should be afforded a VA examination to determine the nature and etiology of any tremors of the arms and hands, which may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any current tremors of the arms and hands, is related to any event or injury during service, including any confirmed Agent Orange exposure. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 7. The Veteran should be afforded a VA examination to determine the presence and etiology of an acquired psychiatric disorder, to include PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran has PTSD which is caused or aggravated by his service. The examiner is requested to identify the stressor that serves as the basis for any PTSD diagnosis and note the diagnostic criteria utilized to support the diagnosis under DSM-IV. If the VA examiner finds the diagnostic criteria is not met, the VA examiner is to provide an explanation for such a finding. If the Veteran does not have PTSD, the VA examiner is requested to provide any opinion as to whether it is as least as likely as not (50 percent probability or more) that the Veteran has an acquired psychiatric disorder (i.e., depression) which was caused or aggravated by his service. The requested determination should also consider the Veteran's medical history prior to, during, and since his military service. The provider is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale should accompany each opinion provided. 8. The Veteran should be afforded a VA examination to determine the nature and etiology of any sleep disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether the Veteran has a disability manifested by sleep disturbance. If so, the examiner should indicate: (a) whether it is as least as likely as not (50 percent probability or more) that the disability is related to any event or injury during service; and (b) whether it is at least as likely as not (50 percent probability or more) that the disability is either (i) secondary to, or (ii) aggravated by the Veteran's claimed acquired psychiatric disability, tinnitus, and/or tremors. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. 9. After completing any additional notification or development deemed necessary, the Veteran's claims for service connection should be readjudicated. If the claims remain denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The appellant 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 2014). _________________________________________________ DAVID L. WIGHT 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).