Citation Nr: 21039664 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 09-47 633 DATE: July 1, 2021 REMANDED Service connection for an acquired psychiatric disorder, to include PTSD and major depression, is remanded. Service connection for liver disease is remanded. Service connection for a back disability is remanded. Service connection for peripheral neuropathy of the right lower extremity, to include as secondary to a service-connected disability, is remanded. Service connection for peripheral neuropathy of the left lower extremity, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active duty for training (ACDUTRA) from November 1968 to April 1969 and active duty service or ACDUTRA from June 1969 to July 1969, June 1970 to July 1970, June 1971 to July 1971, May 1972 to June 1972, May 1973 to June 1973, April 1974, May 1975, and May 1976. During the pendency of the appeal, the Veteran died in January 2020. The Appellant is his surviving spouse and has been granted substitution. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Agency of Original Jurisdiction (AOJ). This matter was remanded by the Board in September 2013, August 2017, and March 2019. 1. Service connection for an acquired psychiatric disorder, to include PTSD and major depression, is remanded. 2. Service connection for liver disease is remanded. 3. Service connection for a back disability is remanded. The Board finds the Veteran's assertion that he served in Southeast Asia, and his periods of service after 1969 in general, which affect all the claims on appeal, need further investigation and development. Regarding this, on remand, the Board noted in its prior remand "the RO has only developed whether the Veteran participated in combat operations or official travel outside the United States for the period between November 1968 and April 1969 and not yet for the period between 1970 and 1976, which is relevant to the Veteran's claims on appeal." The Board observes a December 2019 correspondence noting a negative response was received from both USSOCOM and USASOC, and due to the classification of the message, no further correspondence or documents would be forthcoming. The Board notes the December 2019 Special Forces Incident report that requested this information was for Special Operations tour of duty dates from January 1, 1971, to December 31, 1972. Thus, to date, the RO has only developed whether the Veteran participated in combat operations outside the United States for the period between November 1968 and April 1969, January 1971 to December 1972, but not yet for the period between 1973 and 1976, which is relevant to the Veteran's claims on appeal. Furthermore, while the above development was for combat operations, development for official travel outside the United States has not been completed for the period between 1970 and 1976. Accordingly, a remand is required to attempt to obtain any outstanding records pertaining to any special forces operations the Veteran completed or records showing official travel outside the United States or to make a formal finding of unavailability. Furthermore, in its prior remand, the Board noted with respect to the Veteran's service connection claim for a back disability, the Veteran asserts that around 1975, at Camp Robinson in North Little Rock, Arkansas, he fell out of a deuce-and-a-half truck, landing on and injuring his back. The Board further observed the Veteran's military personnel records show he had additional active duty service or ACDUTRA periods between 1970 and 1976. On remand, the RO did not obtain any additional records. In October 2013, the RO did obtain a March 1973 Report of Medical Examination and a March 1973 Report of Medical History in addition to an immunization record. However, there is no other records for the additional active duty service or ACDUTRA periods between 1970 and 1976 or a formal finding of unavailability of record. The Board acknowledges the March 2020 response for National Guard records that states all available service medical records have been uploaded onto VBMS; however, it is unclear from the claims file whether VA has exhausted all efforts to obtain the Veteran's missing service treatment records (STRs) to include whether the RO attempted to verify whether additional STRs were located at the National Personnel Records Center. Thus, upon remand, the RO must exhaust all efforts to locate any outstanding service personnel records and service medical records. Should VA be unable to obtain any outstanding service records, then every effort to do so must be clearly documented with the results in a formal finding of unavailability of the records associated with the claims file. The Veteran and his representative must also be notified of all the efforts, including the unavailability of the records. 4. Service connection for peripheral neuropathy of the right lower extremity, to include as secondary to a service-connected disability, is remanded. 5. Service connection for peripheral neuropathy of the left lower extremity, to include as secondary to a service-connected disability, is remanded. Concerning entitlement to service connection for a bilateral lower extremity neurologic disability, the neurologic disability is also being claimed as secondary to the back disability. As such, the Board finds that any determinations with respect to the remanded claim for service connection for a back disability would materially affect a determination concerning the claim for service connection for peripheral neuropathy of the right and left lower extremities. As such, these claims are inextricably intertwined with the back claim being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain any outstanding service records, including STRs, through all the appropriate sources (e.g., Department of Defense, National Archives and Records Administration, United States Armed Services Center for Research) with regard to the Veteran's periods of active duty service or ACDUTRA from June 1969 to July 1969, June 1970 to July 1970, June 1971 to July 1971, May 1972 to June 1972, May 1973 to June 1973, April 1974, May 1975, and May 1976. If any records are unavailable, a formal finding of unavailability must be issued by the AOJ. If any records are unavailable, the Veteran and his representative must be notified of the unavailability of the records, to include the name of the records that are unavailable, and the attempts made by the AOJ to locate the records. Additionally, take appropriate action to verify whether the Veteran participated in combat operations or served overseas in Vietnam, Cambodia, and Laos, or in Southeast Asia for these time periods. See February 2006 Veteran's Statement and July 2008 Veteran's Statement. All efforts to obtain this information must be documented in the claims file. If there is a negative response, such should be indicated in the record. 2. Prepare a Special Operations Forces Incident document and submit this request to the U.S. Special Operations Command (USSOCOM) to research the Veteran's claimed stressors involving his alleged participation in covert operations in Vietnam, Laos, and Cambodia between 1973 and 1976. See, e.g., February 2006 Veteran's Statement and July 2008 Veteran's Statement. All efforts to obtain this information must be documented in the claims file. If there is a negative response, such should be indicated in the record. 3. Attempt to verify the Veteran's claimed service in Vietnam and exposure to Agent Orange through all the appropriate sources. All efforts to obtain this information must be documented in the claims file. If there is a negative response, such should be indicated in the record. 4. With respect to the acquired psychiatric disorder service connection claim, if the above directives of this Remand show that the Veteran does not have verified overseas service, return the claims file to an appropriate examiner and obtain an addendum opinion. If the examiner determines that an opinion cannot be rendered without an examination of the Veteran, then schedule an examination for the Veteran. The examiner should identify all psychiatric diagnoses contained in the Veteran's medical records, to include depression as noted in the November 1993 and July 2002 private treatment records. The examiner should provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any acquired psychiatric disorder is related to any disease or injury in service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. (Continued on the next page) The Board notes that in formulating an opinion the examiner should consider that there is no evidence in the Veteran's military records that indicates service in the Republic of Vietnam. A complete rationale for all opinions expressed should be provided in the examination report. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.