Citation Nr: 20011482 Decision Date: 02/11/20 Archive Date: 02/11/20 DOCKET NO. 17-19 340 DATE: February 11, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is remanded. Entitlement to service connection for multiple myeloma, to include as due to herbicide exposure, is remanded. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is remanded. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from September 1967 to April 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. In consideration of this holding, the Veteran’s psychiatric claim has been recharacterized as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The issue has thus been restated. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran underwent a VA psychiatric examination in September 2015. The examiner noted that the Veteran’s symptoms do not meet the diagnostic criteria for PTSD under Diagnostic and Statistical Manual of Mental Disorders (DSM), Fifth Edition (DSM-5). The examiner provided a diagnosis of major depressive disorder, single episode, moderate. The examiner noted that the Veteran had been in a work-related accident in which he was stabbed with a knife in the stomach. The examiner opined that the Veteran’s psychiatric symptoms are attributable in part to his military experiences, but are mostly attributable to his physical problems/disability from his work-related accident. The Board finds that the September 2015 opinion does not clearly state the cause of the Veteran’s psychiatric disorder, as it attributes it to both his active service and a work-related accident. Thus, the Board finds that a new VA examination is warranted in order to determine the nature and etiology of the Veteran’s claimed acquired psychiatric disorder. Additionally, the Board notes that, to date, no specific development has been conducted with respect to the Veteran’s stressors. Additional development should be undertaken on remand to determine the nature of the Veteran’s claimed stressors. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is remanded. See Argument Below 3. Entitlement to service connection for multiple myeloma, to include as due to herbicide exposure, is remanded. See Argument Below 4. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is remanded. The Veteran also seeks entitlement to service connection for diabetes mellitus, multiple myeloma, and ischemic heart disease. He contends that all claimed disabilities are due to in-service herbicide exposure. The Veteran’s personnel records do not show in-country service in the Republic of Vietnam. Specifically, the Veteran alleges that he was exposed to herbicides during his service in the vicinity of the Demilitarized Zone (DMZ) in Korea from 1968 to 1969. With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including prostate cancer, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). The Department of Defense (DoD) has identified specific units it has cited that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. 38 C.F.R. § 3.307(a)(6)(iv). VA’s Adjudication Procedure Manual, M21-1MR (“M21-1MR”), contains a list of a number of Battalions of Infantry, Cavalry, Armor, and Artillery Divisions identified as specific units that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. If a veteran alleges service along the DMZ in Korea, and was assigned to one of the cited units during this period, then that veteran’s exposure to herbicides on a factual basis is conceded. Id. Once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. The Veteran did not have any service in the Republic of Vietnam. He did have service in the Republic of Korea during the presumptive period. Thus, the above presumptive provisions would apply if the Veteran was exposed to herbicides. The Board notes that the availability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s service personnel records confirm that he served in Korea from 1968 to 1969. The Veteran has alleged exposure to Agent Orange and indicated that his service includes that at Camp Casey near the DMZ in Korea. See December 2019 Hearing Transcript at pg. 17. Additionally, the Veteran has indicated that he was also stationed at Camp Red Cloud in Korea, stating that it was 19.6 miles from the DMZ. See December 2014 Veteran statement. Consistent with his statements throughout the appeal period, during the December 2019 Board hearing, the Veteran testified that he served as a truck driver in Korea, picking up and delivering supplies at or near the DMZ. VA has a duty to assist the Veteran by attempting to verify his claimed exposure. Specifically, M21-1MR, Part IV.ii.1.H.7.a describes the procedures for verifying claims based on exposure to herbicide along the DMZ in Korea. The Board notes that development was conducted through the Defense Personnel Records Information Retrieval System (DPRIS) in an effort to confirm whether the Veteran or members of his unit were exposed to herbicides. The DPRIS responded that the Veteran’s unit was located at Camp Page, Chun-Chon, South Korea. The DPRIS further noted that the history does not document the use, storage, spraying, or transportation of Agent Orange in the vicinity of Camp Page, nor does the history mention or document any specific duties performed by the unit members along the DMZ. It does not appear that VA attempted to verify the Veteran’s alleged service at Camp Casey or Camp Red Cloud. Thus, the Board finds that further development should be undertaken on remand to determine whether the Veteran was exposed to herbicides. Furthermore, it does not appear that the Veteran’s assertions were verified according to procedure provided in M21-1MR, Part IV.ii.1.H.7.a. Therefore, in order to prevent prejudice to the Veteran, the RO must reattempt to verify his claimed herbicide agent exposure. Furthermore, the record reflects that the Veteran has not been afforded a VA examination for any of these claimed disabilities. The Board notes that the Veteran’s VA treatment records note diagnoses of diabetes mellitus and coronary artery disease (CAD). With regard to multiple myeloma, during the December 2019 Board hearing, the Veteran testified that he has been diagnosed with this disorder. Thus, regardless of whether development verifies exposure to an herbicide agent, the Veteran must be afforded a VA examination to determine the nature and etiology of each claimed disability. 5. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, is remanded. Finally, because the Veteran’s hypertension is claimed as secondary to diabetes mellitus, the issue of service connection for hypertension is inextricably intertwined with the issue of entitlement to service connection for diabetes mellitus. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The Board also observes that although current VA regulations do not provide that hypertension is a presumptive disability associated with herbicide exposure, the National Academy of Sciences (NAS) recently revised hypertension’s previous classification in the category of “limited or suggestive evidence of an association” to the category of “sufficient evidence of an association.” According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and herbicide exposure.” See Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS). As there is evidence indicating an association between hypertension and herbicide exposure, if a determination is made that the Veteran was exposed to herbicides during service, a VA opinion will be needed to determine whether hypertension is causally related to the Veteran’s service. Finally, on remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Request unit records and history, to include trip logs and unit locations for the Veteran and his assigned units from the National Archives and Records Administration (NARA), the National Personnel Records Center (NPRC), and any other appropriate agency. Make as many requests as necessary to obtain the records. If it is determined that the records do not exist or that further attempts to obtain the records would be futile, a formal finding should be entered into the record and the Veteran should be notified and provided the opportunity to obtain and submit the evidence. Then, attempt to verify, including with the Joint Services Records Research Center (JSRRC), the Veteran’s claimed exposure to herbicides in Korea. The Veteran’s specific unit information with duties of General Vehicle Repairman should be provided with the request to the JSRRC, along with his contentions of having been stationed at Camp Casey and Camp Red Cloud during this time. The RO should ensure that all provisions of the M21-1 are followed regarding verifying such exposure. See, e.g., M21-1 Part IV.ii.1.H.7.a. 3. Then, make an additional attempt to verify any of the Veteran’s claimed in-service stressors, including his service in Korea. Notify the Veteran that he may submit any further clarifying medical or lay evidence including, but not limited to, official records in his possession, in-service letters that he received or sent, photographs, statements from service colleagues (“buddy statements”), or any other evidence referable to the claimed in-service incidents. Advise him that, if possible, he should provide names of other individuals who were also present and witnessed or knew of his claimed stressor incidents, or who can confirm his proximity to them. If appropriate, issue a formal finding regarding the lack of information required to corroborate the claimed stressors. The Veteran is also to be notified of such finding. 4. After completing the above development, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of his diabetes mellitus, multiple myeloma, CAD, and hypertension. The Veteran’s VA treatment records note diagnoses of diabetes mellitus, CAD, and hypertension. The examiner should state whether the Veteran has a current diagnosis of multiple myeloma. For each disability, the examiner must offer an opinion as to whether it is at least as likely as not that such disorder manifested during, or as a result of active military service, to include as due to herbicide exposure. In addressing this question with regard to hypertension, the examiner should not rely solely on the fact that presumptive service connection is not available for the disorder, as that will result in an inadequate opinion. With further regard to the hypertension claim, regardless of whether it is determined that the Veteran’s diabetes mellitus is related to service, the examiner must also offer an opinion as to whether it is at least as likely as not that the Veteran’s hypertension was either (i) caused by, or (ii) aggravated by, the Veteran’s diabetes mellitus. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Finally, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. The claims file must be made available to the examiner for review. (a) The examiner is asked to identify all current psychiatric disorders. For any psychiatric disorder that is noted in the treatment records, but not found on current examination, the examiner should attempt to reconcile these findings. (b) The examiner must opine whether the Veteran has a current diagnosis of PTSD. If the examiner determines that PTSD is present, then he or she must specify the stressor supporting that diagnosis. (c) With respect to any additional psychiatric disorder present during the period of this claim, state whether it is at least as likely as not that such disorder originated during service or is otherwise etiologically related to service. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. The examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Without the requested information, the Board may have to again remand this case for this evidence. 6. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.