Citation Nr: 21064966 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-42 883 DATE: October 22, 2021 ORDER Service connection for an acquired psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 is denied. REMANDED Entitlement to service connection for type II diabetes is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a heart disability, to include atrial fibrillation, is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a right lower extremity disability is remanded. Entitlement to service connection for a left lower extremity disability is remanded. Entitlement to service connection for a vision disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, is remanded. FINDING OF FACT The Veteran has not had a psychosis since his period of service from July 1966 to May 1968. CONCLUSION OF LAW The criteria for eligibility for Chapter 17 medical services under 38 U.S.C. § 1702 for a psychosis are not met. 38 U.S.C. § 1702; 38 C.F.R. §§ 3.2, 3.384, 17.109(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to May 1968, and is thus a Veteran of the Vietnam era. See 38 C.F.R. § 3.2. This appeal is before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office. Service connection for an acquired psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 is denied. VA will treat certain psychoses and mental illnesses as service-connected solely for the purpose of eligibility for medical treatment benefits under Chapter 17. Under 38 U.S.C. § 1702(a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who develops an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before the following date associated with the war or conflict in which he or she served: May 8, 1977, in the case of a Vietnam era veteran. 38 U.S.C. § 1702. VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384. Under 38 C.F.R. § 3.384, the term "psychosis" is defined so as to include the following disorders listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5): brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. 38 U.S.C. § 1702 has been expanded to include diagnoses of active mental illness; however, this provision explicitly applies only to veterans of the Persian Gulf War. See 38 U.S.C. § 1702(b). As the Veteran did not have active service during the Persian Gulf War era, the Board must limit consideration solely to whether the Veteran had an active psychosis within 2 years of his separation from service and before the dates specified for the war or conflict in which he served. VA treatment records since 1994, and a February 2014 VA examination report, reflect that the Veteran has been variously diagnosed with adjustment disorder, depressive disorder, and major depression. For the reasons discussed in the Remand section below, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder for compensation purposes is being remanded to the agency of original jurisdiction (AOJ). However, such diagnoses are not among the enumerated disorders considered to be psychoses under 38 C.F.R. § 3.384. The record does not reflect, and the Veteran has not argued, that he has ever been diagnosed with, or had, any of the disorders considered to be psychoses under 38 C.F.R. § 3.384within 2 years of service or otherwise. Accordingly, service connection for an acquired psychiatric disorder for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 must be denied. REASONS FOR REMAND VA treatment records from 2014 to 2017 reflect diagnoses of type II diabetes, hypertension, chronic atrial fibrillation, male erectile disorder, and peripheral venous disease of the lower extremities. As reflected in his November 2012 claim and September 2015 notice of disagreement, the Veteran asserts that his type II diabetes is the result of in-service Agent Orange exposure during his service in the Korean Demilitarized Zone (DMZ), and that his hypertension, heart disability, erectile dysfunction, and right and left lower extremity and vision disabilities are either also related to such exposure, or secondary to his diabetes. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain diseases, including type II diabetes, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Absent affirmative evidence to the contrary, there is a presumption of exposure to such herbicide agents (to include Agent Orange) for all veterans who served in or near the DMZ during the period beginning on September 1, 1967, and ending on August 31, 1971. 38 U.S.C. § 1116B; see also 38 C.F.R. § 3.307(a)(6)(iv). In August 2014, the Veteran submitted evidence, including photographs purportedly of the Veteran and others building a fence in the DMZ, and the obituary of a friend he contends he served with who died in the DMZ, in support of his assertion that he served in the Korean DMZ in 1967 and 1968. He asserts that he served in the DMZ until January 1968, when he left Korea after suffering gunshot wound. His service personnel records reflect that he incurred the gunshot wound in early January 1968, for which he was treated at the 121st Evacuation Hospital in Korea. In response to this evidence, the AOJ requested that the U.S. Army and Joint Service Records Research Center (JSRRC) verify that the Veteran's unit was assigned in or around the Korean DMZ. The given dates of claimed service were July and August of 1967, and the identified unit of assignment was the B Company, 7th Engineer Battalion, 5th Infantry Division (B Co, 7th Engr Bn, 5th Inf Div). In March 2015, the JSRRC responded that, after coordinating its research with the National Archives and Records Administration (NARA), it was unable to locate a 1967 unit history submitted by B Company, 7th Engineer Battalion, 5th Infantry Division (B Co, 7th Engr Bn, 5th Inf Div). However, the unit histories submitted by the 7th Engr Bn documented that the unit was located at Fort Carson, Colorado, in July and August 1967, and did not mention or document that B Co, 7th Engr Bn, was in the DMZ in South Korea at that time. However, the Veteran's service personnel records reflect that, while he served in B Co, 7th Engr Bn, 5th Inf Div, in Fort Carson, Colorado, until his departure to Korea in March 1967, he served in Company A, 2nd Engineer Battalion, 2nd Infantry Division (CoA, 2nd Engr Bn, 2nd Inf Div) in Korea from April 22, 1967, until he left Korea after his gunshot injury in January 1968. There is no indication that the AOJ or JSRRC attempted to verify the Veteran's asserted DMZ service by researching the unit histories of CoA, 2nd Engr Bn, 2nd Inf Div, during the Veteran's documented service in Korea. Given the above, the Veteran's service connection claims for type II diabetes, and other disabilities he asserts are either the result of Agent Orange exposure or secondary to diabetes, must be remanded for the AOJ to attempted to verify the Veteran's asserted DMZ service by researching the unit histories of CoA, 2nd Engr Bn, 2nd Inf Div, during the Veteran's documented service in Korea. Finally, VA treatment records reflect a medical history of adjustment disorder with mixed anxiety and depressed mood. On February 2014 VA examination, the examiner assessed depressive disorder. While the examiner acknowledged that the Veteran had the in-service stressor of a gunshot wound, the examiner determined that the Veteran did not meet the diagnostic criteria for PTSD. The examiner furthermore noted the Veteran's report that his physical health was the cause of his depression, and related the Veteran's depressive disorder to his physical health, quality of life, and employment status of having to quit due to physical illness. Given the evidence that the Veteran's current psychiatric disorder, to include depressive disorder, might be secondary to the physical disabilities for which he seeks service connection, his service connection claim for an acquired psychiatric disorder is intertwined with his claims for those physical disabilities, and therefore must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents, to include his asserted DMZ service, by researching the unit histories of Company A, 2nd Engineer Battalion, 2nd Infantry Division (CoA, 2nd Engr Bn, 2nd Inf Div) during the Veteran's documented service in Korea from April 22, 1967, to January 1968. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 2. After completing the above and any other necessary development, to include any appropriate medical examinations and opinions and any determinations of secondary service connection, readjudicate the appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.