Citation Nr: 21013648 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-40 028 DATE: March 10, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for non-Hodgkin's lymphoma is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1968 to November 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 Rating Decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a January 2021 virtual hearing. A transcript of that proceeding has been associated with the claims file. The Veteran seeks entitlement to service connection for non-Hodgkin’s lymphoma, an acquired psychiatric disorder (to include PTSD), as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. Specifically, the Veteran alleges that he developed non-Hodgkin’s lymphoma as a result of herbicide exposure while serving in the Republic of Vietnam (either on the landmass, inland waterways, or in the territorial sea extending 12 nautical miles from the shores of that nation). Additionally, the Veteran alleges that he developed PTSD as a result of stressors experienced during combat on the ground in Vietnam, Cambodia, and Laos. A review of the Veteran’s VA treatment records reveals that he has been diagnosed as having diffuse large B-cell lymphoma as well as generalized anxiety disorder and mixed anxiety and depressive disorder (accompanied by dreams about Vietnam). As such, establishing service in Vietnam, Cambodia, and Laos is relevant to the disposition of these claims. The Veteran’s DD Form 214 indicated that he served as a Cryptologic Technician, and that his service included three years and 29 days of foreign and/or sea service. His last duty assigned was at the Naval Communications Station (NAVCOMMSTA) in Adak, Alaska. His service personnel records confirm that he was granted interim Naval Security Group (NAVSECGRU) top secret clearance in June 1968. He was stationed at Commander-in-Chief, U.S. Pacific Fleet from October 1968 to October 1970; the purpose of this transfer was for duty (preferred overseas shore) with Naval Security Group Detachment. He was then transferred to Naval Communications Station in Adak, Alaska, in October 1970, although he did not report there until December 1970, after taking 29 days of leave from November 1, 1970, to November 29, 1970; the purpose of this transfer was for duty (overseas shore) with Naval Security Group Department, described as duty at an isolated duty station and remote communications center in his enlisted performance reports. He remained at Naval Communications Station in Adak, Alaska until November 1971, which was considered a continuous tour of sea duty. Significantly, these records do not explicitly indicate that the Veteran served in Vietnam, Cambodia, and/or Laos, or aboard any ship. In correspondence received in March 2016, the Veteran asserted that even though his DD Form 214 indicated that he served in the U.S. Navy as a Cryptographic Machine Operator, he actually served in Vietnam in Special Forces even though none of the various Temporary Duty (TDY) missions he volunteered for with the National Security Agency (NSA), Defense Intelligence Agency (DIA), and National Reconnaissance Office (NRO) were mentioned in his service records. The Veteran indicated that in 1968 he was stationed in Honolulu, Hawaii, at Commander in Chief, Pacific Fleet Headquarters / Director, Naval Security Group, Pacific, where he worked with cryptographic circuits and equipment. In January 1969, he alleged that he accepted a request to volunteer for a TDY assignment aboard the USS Jamestown (AGTR-3) from February 7, 1969, through March 17, 1969, in order to establish, maintain continuity, and determine operational status and capability of specified signals. The Veteran explained that because he was volunteering for a TDY assignment for a non-billeted job on the USS Jamestown, he was advised this assignment would not be noted in his service records, nor would he receive combat pay/hazardous duty pay, nor would he receive a Vietnamese Campaign Service Ribbon because his actual billet was for duty at Commander in Chief, Pacific Fleet Headquarters / Director, Naval Security Group, Pacific, not the USS Jamestown. The Veteran further indicated that he was awarded a Meritorious Unit Commendation for his service aboard the USS Jamestown, and then accepted a request to volunteer for another TDY assignment in May 1969 with the Fleet Intelligence Center (FICPAC) on Ford Island, Pearl Harbor, where he used imagery intelligence provided from spy and U-2 reconnaissance aircraft to support the Military Assistance Command, Vietnam – Studies and Observations Group (MACV-SOG), a highly classified, multi-service United States special operations unit which conducted covert unconventional warfare operations prior to and during the Vietnam War. In approximately June 1969, the Veteran accepted a request to volunteer for multiple TDY assignments in Vietnam at MACV-SOG bases in order to fix secure communications problems they were experiencing, and made several trips in the summer of 1969 (starting in July 1969) to MACV-SOG bases in Vietnam while assigned on a TDY basis to FICPAC. The Veteran indicated that he was only in Vietnam for short periods of time, but was well trained in the use of small arms, light weapons, and explosives, so he was invited to travel with MACV-SOG to dangerous locations that were experiencing communications issues, both inside and outside Vietnam. Again, the Veteran claimed he was informed that he would not get combat pay/hazardous duty pay because there could be no written record that he was in Vietnam because of the sensitivity of MACV-SOG’s mission, which was operated by the Central Intelligence Agency (CIA) rather than the U.S. military. However, the Veteran indicated that he was awarded a Navy Unit Commendation by FICPAC for his MACV-SOG combat experiences. Also, in March 2016, the Veteran detailed three alleged stressors. The first stressor, alleged to have occurred in Laos between May 1969 and September 1969, involved the Veteran on a TDY assignment from FICPCAC to update secure communications links between various MACV-SOG bases in Vietnam-adjacent countries when his helicopter received ground fire from enemy combatants; additionally, in May 1969, he indicated that he was at a classified MACV-SOG firebase in Laos when he came under attack by enemy combatants and engaged in a four-hour firefight, during which time one of his fellow servicemen was killed. The second stressor, alleged to have occurred in Vietnam between May 1969 and September 1969, involved the Veteran’s helicopter receiving ground fire from enemy combatants near MACV-SOG firebases when he was being transported in to repair their secure communications links. The third stressor, alleged to have occurred in Cambodia between May 1969 and September 1969, involved the Veteran scouting a village to determine if they were supporting the North Vietnamese when he shot and killed a small child offering fruit to U.S. soldiers, causing a grenade hidden in the fruit to detonate; the Veteran subsequently withdrew from the area and an air strike was called in that killed everyone in the village. Additionally, in March 2016, the Veteran submitted an annotated copy of his DD Form 214, at which time he emphasized his receipt of the “Navy Unit Commendation” and the “Meritorious Unit Commendation.” Specifically, he asserted that he received the “Navy Unit Commendation” for his Military Assistance Command, Vietnam – Studies and Observations Group (MACV-SOG) TDY assignment to Navy Fleet Intelligence Center Pacific (FICPAC) on Ford Island, Pearl Harbor, and that this commendation was “the Unit Equivalent of the Silver Star, a combat-only decoration.” However, this is not necessarily true. The Board notes that the Navy Unit Commendation is awarded “to any unit of the Navy or Marine Corps that has distinguished itself by outstanding heroism in action against the enemy, but not sufficient to justify the award of the Presidential Unit Citation; or to any such unit that has distinguished itself by extremely meritorious service, not involving combat, but in support of military operations, rendering the unit outstanding compared to other units performing similar service.” (Emphasis added). Indeed, “[t]o justify this award, the unit must have performed service of a character comparable to that which would merit the award of a Silver Star Medal for heroism, or a Legion of Merit for meritorious service to an individual.” See SECNAVINST 1650.1H, Navy and Marine Corps Awards Manual, Chapter 3, Section 3, Paragraph 330.2 (2006). Thus, the Navy Unit Commendation is not a combat-only decoration. Similarly, the Veteran asserted that he received the “Meritorious Unit Commendation” for his MACV-SOG TDY assignment aboard the USS Jamestown, and that this commendation was “the Unit Equivalent of the Bronze Star.” Again, this is not necessarily true. The Board notes that the Navy Unit Commendation is awarded “to any unit of the Navy or Marine Corps that has distinguished itself, under combat or non-combat conditions, by either valorous or meritorious achievement, which renders the unit outstanding compared to other units performing similar service, but not sufficient to justify award of the Navy Unit Commendation.” Indeed, “[t]o justify this award, the unit must have performed service of a character comparable to that which would merit the award of a Bronze Star Medal, or achievement of like caliber in a non-combat situation, to an individual.” (Emphasis added). See SECNAVINST 1650.1H, Navy and Marine Corps Awards Manual, Chapter 3, Section 3, Paragraph 330.3 (2006). Thus, the Meritorious Unit Commendation is also not a combat-only decoration. VA has specific protocols for handling allegations made by veterans involving classified information. A Special Operations Forces Incident document must be prepared with the Veteran’s cooperation, to be forwarded to the U.S. Special Operations Command (USSOCOM) for research. Here, such a Special Operations Forces Incident document was prepared in August 2016; however, this document only listed brief descriptions of the Veteran’s alleged stressors in Laos and Cambodia, and did not attempt to verify his alleged service aboard the USS Jamestown (AGTR-3) or on the ground in Vietnam. Later that month, the USSOCOM VA Liaison indicated that he received a negative response from the USSOCOM Historian Office, but that he was still awaiting a response from the Office of the Secretary of Defense (OSD). In January 2017, the USSOCOM VA Liaison indicated that he received a response from OSD and was unable to verify the RO’s request for information. In March 2017, the RO issued a “Formal finding of a lack of information required to corroborate stressor(s) associated with a claim for service connection for PTSD” as well as a “Formal finding that the Department of Veterans Affairs (VA) lacks the information the U.S. Army and Joint Services Records Research Center (JSRRC) requires to verify herbicide exposure.” In support of his claims, the Veteran submitted a May 2018 statement from [REDACTED], a fellow Communications Technician with whom he worked when stationed in Hawaii. In this statement, Mr. [REDACTED] recalled serving and socializing with the Veteran at Commander in Chief, Pacific Fleet Headquarters, although the two were not assigned to the same shift. Mr. [REDACTED] indicated his awareness that various cryptologic technicians in the communications branch (CTO) were sent on TDY assignments that he believed were classified. Although he could not specifically recall the Veteran ever being assigned a TDY, Mr. [REDACTED] indicated that the Veteran could have been selected for a TDY assignment on the USS Jamestown, and that he would have had no personal knowledge of such an assignment. At his January 2021 virtual hearing, the Veteran testified that he served in the Naval Security Group and was given the highest security clearance in the United States government because he was cleared for cryptographic materials. He further testified that he volunteered for a number of TDY assignments, although the Navy chose not to document any of these assignments in his personnel records. He indicated that he served aboard the USS Jamestown during one of these TDY assignments, although his name was never listed on the crew manifest; rather, the crew manifest would simply show a general listing for “Naval Security Group Detachment,” without any individual names. The Veteran testified that he accepted a TDY with the MACV-SOG. This TDY involved the Veteran working at the Fleet Intelligence Center on Ford Island, Pearl Harbor, where he analyzed classified imagery of North Vietnamese units on the Ho Chi Minh Trail that was obtained from satellites and U-2 reconnaissance aircraft. This analysis was then used to produce daily intelligence updates which were provided via encoded transmissions to MACV-SOG, which was involved in attempts to disrupt North Vietnamese supply routes. The Veteran indicated that in the summer of 1969, MACV-SOG was experiencing difficulty decoding the Fleet Intelligence Center’s intelligence transmissions, so he, as an expert on the cryptographic equipment, volunteered to be transferred to Vietnam for a “short period of time” “two or three times” to assist MACV-SOG in resolving their cryptographic communication issues. The Veteran clarified that he was never in Vietnam for “any length of time,” but “long enough to get shot at and -- and go out on a couple missions.” The Veteran’s attorney indicated that the Veteran’s DD Form 214 reflected three years and 29 days of “Foreign and/or Sea Service” without any mention in his service records as to where this sea service would have occurred, implying that this sea service could have included transfers to Vietnam. To this point, the Board notes that the Veteran’s assignments outside the continental United States in Hawaii and Alaska were classified as overseas shore duty. With respect to PTSD stressors, the Veteran testified that he was transported to the MACV-SOG firebases in Vietnam via helicopter piloted by the South Vietnamese and would often be shot at by Viet Cong or other Vietnamese people in the jungle. Additionally, the Veteran testified that the first time that he was on the ground in Vietnam, he exited the helicopter and had a “Chinese grenade” thrown at him, prompting him to pick up the grenade throw it back at the assailant, killing him. The Veteran further testified that he was sent to a location he believed was in Cambodia in order ascertain whether a village was a supply point for the Viet Cong, at which time the Veteran shot and killed a child who approached him with a bowl of fruit (later revealed to be concealing an active grenade). Finally, the Veteran testified that all MACV-SOG operations were shut down in 1972, at which time all of their records were destroyed, so any records that would have demonstrated he was deployed to Vietnam and other countries in Southeast Asia were no longer available. In February 2021, the Veteran submitted a citation from the Chief of Naval Operations in which “Task Force Ninety-Two” was presented with the Meritorious Unit Commendation for meritorious service during the spring and summer of 1970 while conducting Ivy Green operations in the Pacific Ocean area. This citation explicitly indicated that “Task Force Ninety-Two” consisted of: Commander Task Force 92 and his staff; Commander Task Group 92 and his staff; USS John R. Perry; USS Charles Berry; USS Claud Jones; USS McMorris; and detachments from Patrol Squadrons Six, Seventeen, Twenty-Two, and Four, as well as Fleet Air Reconnaissance Squadron One. Similarly, the Veteran also submitted a citation from the Secretary of the Navy in which the “Fleet Intelligence Center Pacific” was presented with the Navy Unit Commendation for exceptionally meritorious service in direct support of Commander in Chief Pacific, Commander in Chief Pacific Fleet, and U.S. Seventh Fleet operations in Southeast Asia from April 1967 to September 1969. This support included intelligence target material and intelligence data handling system support. Again, the Board reiterates that the Meritorious Unit Commendation and the Navy Unit Commendation are not combat-only decorations. In summary, the Veteran served in the U.S. Navy from February 1968 to November 1971 as a Cryptologic Technician, and such service included three years and 29 days of foreign and/or sea service. He was granted interim Naval Security Group top secret clearance in June 1968, and was stationed at Commander-in-Chief, U.S. Pacific Fleet in Oahu, Hawaii, from October 1968 to October 1970; and then at Naval Communications Station in Adak, Alaska, from October 1970 until November 1971. The Veteran alleges that he volunteered for several top-secret, classified Temporary Duty assignments with the Naval Security Group and/or MACV-SOG which included service aboard the USS Jamestown (AGTR-3) as well as service on the ground in Vietnam, Cambodia, and Laos, although these duty assignments are not reflected in his personnel records due to their classified nature. As discussed above, for allegations involving classified information, a Special Operations Forces Incident document must be prepared with the Veteran’s cooperation, to be forwarded to USSOCOM for research. Here, although a Special Operations Forces Incident document was prepared in August 2016, and received negative responses from USSOCOM in August 2016 and January 2017, this document only listed brief descriptions of the Veteran’s alleged stressors in Laos and Cambodia. As emphasized by the Veteran’s attorney in his May 2018 Appellate Brief, no attempt was made to verify whether the Veteran was ever assigned to any classified Temporary Duty and/or Special Duty assignments, no attempt was made to verify whether the Veteran ever served aboard the USS Jamestown (AGTR-3), and no attempt was made to verify whether the Veteran ever served on the ground in Vietnam. As such, additional Special Operations Forces Incident documents must be prepared so that these inquiries can be researched. Finally, no VA examination has been conducted to address whether the Veteran has a current psychiatric disorder due to service. This should also be accomplished on remand. The matters are REMANDED for the following action: 1. Prepare a Special Operations Forces Incident Document and submit that request to the U.S. Special Operations Command (USSOCOM) to research the Veteran’s alleged service aboard the USS Jamestown (AGTR-3) as well as his claimed stressors on the ground in Vietnam. Specifically, the Veteran has claimed: (a) that he volunteered for several Temporary Duty assignments (TDY) and/or Special Duty assignments (SDA) with the Naval Security Group and/or MACV-SOG in 1969, which were not documented in his personnel files due to their classified nature; (b) that he accepted a request to volunteer for a TDY assignment aboard the USS Jamestown (AGTR-3) from February 7, 1969, through March 17, 1969, in order to establish, maintain continuity, and determine operational status and capability of specified signals, at which time he was exposed to Agent Orange; and (c) that he accepted a request to volunteer for multiple TDY assignments in Vietnam at MACV-SOG bases to fix secure communications problems they were experiencing, and made several trips in the summer of 1969 (starting in July 1969) to MACV-SOG bases while assigned on a TDY basis to FICPAC, at which time he was fired upon by and/or engaged in combat with enemy forces on several occasions. All attempts to verify these details and assignments must be documented in the claims file. If any information received from USSOCOM leads the RO to believe that additional inquiries to other government agencies may result in the verification of these assignments, then such development should be conducted. 2. After the above development has been completed, provide the Veteran with a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder. If the Veteran is diagnosed as having PTSD, then the examiner must explain how the diagnostic criteria are met and opine whether the diagnosis is at least as likely as not (50 percent probability or greater) related to an in-service stressor. If any other acquired psychiatric disorders are diagnosed, then the examiner must opine whether each diagnosed disorder is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then, readjudicate the issues on appeal. If any benefit sought on appeal is not granted, then issue a Supplemental Statement of the Case to the Veteran and his attorney and allow the appropriate time for response. Then, return the claim to the Board. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.