Citation Nr: 18159468 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 09-28 964 DATE: December 19, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a depressive disorder and as secondary to type II diabetes mellitus, is remanded. Entitlement to service connection for type II diabetes mellitus, to include as secondary to in-service herbicide-agent exposure, is remanded. Entitlement to service connection for congestive heart failure, to include as secondary to in-service herbicide-agent exposure and as secondary to type II diabetes mellitus, hypertension, and an acquired psychiatric disorder, is remanded. Entitlement to service connection for hypertension, to include as secondary to in-service herbicide-agent exposure and as secondary to type II diabetes mellitus and an acquired psychiatric disorder, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to in-service herbicide-agent exposure and as secondary to type II diabetes mellitus and an acquired psychiatric disorder, is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to in-service herbicide-agent exposure and as secondary to type II diabetes mellitus and an acquired psychiatric disorder, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to in-service herbicide-agent exposure and as secondary to type II diabetes mellitus and an acquired psychiatric disorder, is remanded. REFERRED The issue of whether the Veteran has received previously withheld funds that were used to recover an overpayment of pension benefits pension benefits in the amount of $28,380, a waiver of which was granted by the Board of Veterans Appeals (Board) in a March 2012 decision, was raised in a May 2012 statement and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. REASONS FOR REMAND The Veteran had verified active duty service from February 1965 to October 1968, from September 1971 to December 1971, and from April 1972 to May 1973. These matters come before the Board on appeal from May 2008 (denying service connection for congestive heart failure with hypertension and PTSD) and October 2008 (denying service connection for type II diabetes mellitus with erectile dysfunction and right and left lower extremity neuropathy) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, a hearing was held before the undersigned Veterans Law Judge at the RO. A transcript of that proceeding has been associated with the electronic claims folder. In March 2012, the Board remanded the claims for further development. In February 2018, the Veteran had an informal conference with a decision review officer on the issues on appeal. In a May 2009 rating decision, the RO denied entitlement to service connection for a depressive disorder not otherwise specified. In a December 2009 rating decision, the RO confirmed and continued the previous denial of service connection for a depressive disorder not otherwise specified. The United States Court of Appeals for Veterans Claims (the Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the psychiatric-service-connection issue on appeal includes not only PTSD but also a depressive disorder. In an October 2009 statement, the Veteran raised various theories of entitlement for the disorders on appeal. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on October 12, 2018. However, the appeal for the ¬claims of service connection for a psychiatric disorder, type II diabetes mellitus, congestive heart failure, hypertension, erectile dysfunction, and bilateral peripheral neuropathy of the lower extremities has already been activated at the Board and is therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. In the March 2012 remand, the Board directed the RO to attempt to verify a stressor of a rocket attack on an air traffic control tower in Da Nang, Republic of Vietnam, during the months of May through August of 1967. The RO verified whether there was a rocket attack during the months of January through July of 1967 but not August 1967. Therefore, the RO did not comply with the directives of the March 2012 remand and the RO should attempt to verify whether the stressor occurred during August 1967. Stegall v. West, 11 Vet. App. 268 (1998). In his June 2009 VA Form 9, the Veteran reported that he was on temporary duty in Da Nang from November 1967 to January 1968 and that the attack on the air traffic control tower happened in late December 1967 or early January 1968. The RO attempted to verify the stressor for the period of September through November 1967. The RO should attempt to verify the stressor for the months of December 1967 and January 1968. In February 2018, an archivist from the Air Force Historical Research Agency stated that there is no mention in the unit history of any of the personnel from the Veteran’s unit being sent to Vietnam in 1968. The archivist noted the air traffic control operators were “scarce resources” in Taiwan at the time and essentially suggested that it was unlikely that the Veteran was assigned on a temporary duty to Vietnam or, for that matter, anywhere else such as Johnston Island. In a March 2018 statement, the Veteran’s counsel argued that the Air Force Historical Research Agency should again be contacted to determine whether their records show anyone from the Veteran’s unit was sent to Johnston Island. The counsel argued that if the unit history did not show any temporary duty assignments to Johnston Island, which the Veteran’s service records show occurred, then the lack of documentation of temporary duty assignments to Johnston Island would support the Veteran’s contention that he was sent to Vietnam though there is no official record of that temporary duty assignment because the unit histories are incomplete as to temporary duty assignments. The RO should contact the Air Force Historical Research Agency to determine whether the unit history of the Veteran’s unit shows temporary duty assignments of air traffic control operators to Johnston Island in 1967. In March 2018 statement, the counsel noted that the Veteran has photographs from Da Nang. In the February 2018 informal conference report, the decision review officer noted that the Veteran’s photographs looked to be authentic and to be the originals. The RO should ask the Veteran to submit copies of the photographs purportedly taken at Da Nang. The Veteran’s service treatment records show some elevated blood pressure readings. A VA examination is necessary to determine whether the congestive heart failure and hypertension are related to the in-service elevated blood pressure readings. The RO should obtain any additional records from the Roseburg VA Health Care System from September 2018 to the present. The matters are REMANDED for the following action: 1. Ask the Veteran to submit copies of any photographs from his service in Da Nang, South Vietnam. 2. Ask the Veteran to identify all treatment for psychiatric disorder, type II diabetes mellitus, congestive heart failure, hypertension, erectile dysfunction, and bilateral peripheral neuropathy of the lower extremities, and obtain any identified records. Obtain the Veteran’s VA treatment records from the Roseburg VA Health Care System from September 2018 to the present. 3. Attempt to corroborate the Veteran’s in-service stressor of a rocket attack on an air traffic control tower at Da Nang, South Vietnam, in August 1967, December 1967, or January 1968. If more details are needed, contact the Veteran to request the information. 4. Contact the Air Force Historical Research Agency and ask that agency to review the 1967 unit history for the Veteran’s unit to see whether there is documentation in the unit history that any air traffic control operators from that unit were on temporary duty on Johnston Island during 1967. 5. After the development in 1 through 4 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart disability and hypertension. The examiner must opine whether it is at least as likely as not that any current heart disorder, to include congestive heart failure, or the hypertension is related to an in-service injury, event, or disease, including in-service elevated blood pressure readings and, if the in-service stressor of a rocket attack on Da Nang is verified, in-service herbicide-agent exposure. The examiner must opine on whether it is at least as likely as not that the current heart disorder, to include congestive heart failure, was (1) caused by or (2) aggravated by hypertension. If the medical provider finds that the current heart disorder, to include congestive heart failure, was aggravated by hypertension, then the examiner should quantify the degree of aggravation. If the examiner has to render an opinion on the disabilities being related to in-service herbicide-agent exposure because the RO determines that the in-service stressor of a rocket attack on Da Nang, Republic of Vietnam, is verified, the examiner should be advised that simply stating that congestive heart failure and hypertension are not presumptive disorders under the regulations is not a medical rationale and that the examiner must give a rationale on whether the congestive heart failure and hypertension are related to in-service herbicide-agent exposure. If the in-service stressor of a rocket attack on Da Nang is verified, the examiner must opine on whether it is at least as likely as not that the current heart disorder, to include congestive heart failure, or hypertension was (1) caused by or (2) aggravated by an acquired psychiatric disorder, to include PTSD or a depressive disorder, or by type II diabetes mellitus. If the medical provider finds that the current heart disorder, to include congestive heart failure, or hypertension was aggravated by an acquired psychiatric disorder, to include PTSD or a depressive disorder, or by type II diabetes mellitus, then the examiner should quantify the degree of aggravation. 6. After the development in 1 through 4 is completed – and if and only if the RO determines that the Veteran’s reported stressor of a rocket attack at Da Nang is verified – schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD, depressive disorder, or other psychiatric disorder. If the Veteran is diagnosed with a personality disorder and a current psychiatric disorder, the examiner must opine whether the current psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If PTSD, a depressive disorder, or any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the rocket attack at Da Nang. If PTSD, a depressive disorder, or any other acquired psychiatric disorders are diagnosed, the examiner must opine on whether it is at least as likely as not that each diagnosed disorder was (1) caused by or (2) aggravated by type II diabetes mellitus. If the medical provider finds that a diagnosed disorder was aggravated by type II diabetes mellitus, then the examiner should quantify the degree of aggravation. 7. After the development in 1 through 4 – and if and only if the RO determines that the Veteran’s reported stressor of a rocket attack at Da Nang is verified – schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of erectile dysfunction and any peripheral neuropathy of the lower extremities. The examiner must opine whether it is at least as likely as not that any current peripheral neuropathy of the lower extremities or erectile dysfunction is related to an in-service injury, event, or disease, including in-service herbicide-agent exposure. The examiner should be advised that simply stating that peripheral neuropathy that is not early onset in nature and erectile dysfunction are not presumptive disorders under the regulations is not a medical rationale and that the examiner must give a rationale on whether the peripheral neuropathy of the lower extremities and erectile dysfunction are related to in-service herbicide-agent exposure. The examiner must opine on whether it is at least as likely as not that any current peripheral neuropathy of the lower extremities or erectile dysfunction was (1) caused by or (2) aggravated by an acquired psychiatric disorder, to include PTSD or a depressive disorder, or by type II diabetes mellitus. If the medical provider finds that peripheral neuropathy of the lower extremities or erectile dysfunction was aggravated by an acquired psychiatric disorder, to include PTSD or a depressive disorder, or by type II diabetes mellitus, then the examiner should quantify the degree of aggravation. 8. After the development in 1 through 4 is completed, the RO should undertake any additional development on the claim of entitlement to service connection for type II diabetes mellitus as warranted by the additional evidence of record. 9. Thereafter, the RO must readjudicate the issues on appeal with consideration of all evidence of record. If any benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his counsel, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel