Citation Nr: 0328403 Decision Date: 10/22/03 Archive Date: 11/03/03 DOCKET NO. 98-07 008A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to a rating higher than 20 percent for diabetes mellitus. 3. Entitlement to an effective date earlier than July 9, 2001 for service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, his wife, and a doctor ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Counsel INTRODUCTION The veteran served on active duty from June 1966 to June 1969. The matter comes before the Board of Veterans' Appeals (Board) from an October 1997 RO decision that denied service connection for PTSD. It also arises from a September 2001 RO decision that granted service connection and a 20 percent rating for diabetes mellitus, effective July 9, 2001; the veteran seeks both an earlier effective date of service connection and a higher evaluation. The present Board decision addresses the issue of an earlier effective date for service connection for diabetes. The issues of service connection for PTSD and a higher rating for diabetes are the subject of the remand at the end of the Board decision. FINDINGS OF FACT The Vietnam veteran filed a claim for service connection for diabetes mellitus on July 9, 2001, many years after separation from active service. Effective May 8, 2001, a liberalizing regulation permits service connection for diabetes based on exposure to herbicides in Vietnam. The RO has granted service connection for diabetes effective from July 9, 2001. CONCLUSION OF LAW The criteria for an earlier effective date of May 8, 2001, for service connection for diabetes mellitus, have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.400 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran served on active duty in the Army from June 1966 to June 1969, including service in Vietnam from May 1967 to May 1968. Service personnel records show that he was assigned duties as a clerk typist during his service in Vietnam. Medical records from 1998 to 2001 reflect treatment for various disorders, including diabetes mellitus and psychiatric problems. On July 9, 2001, the RO received a claim from the veteran for service connection for diabetes mellitus. The RO subsequently granted service connection and a 20 percent rating for diabetes, effective July 9, 2001. II. Analysis Through discussions in correspondence, the RO decision, and the statement of the case, the VA has informed the veteran of the evidence necessary to substantiate his claim for an effective date earlier than July 9, 2001 for service connection for diabetes mellitus. Pertinent records have been obtained. The VA has satisfied the notice and duty to assist provisions of the law as to this issue. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, the effective date of an award of service connection and compensation is the day following the date of separation from active service, if an application is received within one year after separation from active service; otherwise, the effective date will be the date of VA receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). In this case, the veteran first filed a claim for service connection for diabetes on July 9, 2001. The file shows no earlier formal or informal claim for the benefit. See 38 U.S.C.A. § 5101; 38 C.F.R. §§ 3.151, 3.155; Crawford v. Brown, 5 Vet. App. 33 (1993). Other legal authority provides that where compensation is awarded pursuant to a liberalizing law or VA issue, the effective date of such award shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the liberalizing law or administrative issue. Under this provision, if a veteran claims service connection within the year after the effective date of the liberalizing law or regulation, the effective date of service connection generally will be the same as the effective date of the liberalizing law or regulation. 38 U.S.C.A. § 5110(g), 38 C.F.R. § 3.114. The RO awarded service connection for diabetes under liberalizing law concerning exposure to herbicides during service in Vietnam. As originally announced by the VA, July 9, 2001 was the effective date of the liberalizing regulation which gives the VA authority to award service connection for diabetes mellitus based on Vietnam herbicide exposure. See 66 Fed. Reg. 23,166 (May 8, 2001). However, a subsequent court decision held that the correct effective date for this liberalizing regulation on service connection for diabetes is May 8, 2001. See Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368 (Fed.Cir. 2002). The veteran's claim for service connection was filed within the year after the effective date of this liberalizing regulation. Given these circumstances, an earlier effective date of May 8, 2001 is warranted for service connection for diabetes. However, the law does not permit an effective date earlier than May 8, 2001 for this benefit. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER An earlier effective date of May 8, 2001, for service connection for diabetes mellitus, is granted. REMAND Additional development is needed with regard to the remaining claims on appeal, service connection for PTSD, and a rating higher than 20 percent for diabetes. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM- IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). The medical evidence includes a diagnosis of PTSD (and other psychiatric diagnoses), but a stressor has not been verified. The veteran served in the Army and his service records indicate that while in Vietnam his military occupational specialty was that of a clerk typist. Service records show no combat decorations or other evidence of participation in combat. As it is not shown the veteran engaged in combat, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). As service stressors, the veteran has made reference to mortar attacks in Vietnam and deaths of others. He mentioned two soldiers (William Pittman or Pitman and Johnson) who were killed. To date, there has been no attempt to corroborate the occurrence of a service stressor. In the judgment of the Board, the RO should attempt to verify a service stressor throught the U.S. Armed Services Center for Research of Unit Records (USASCRUR). With regard to the claim for a rating higher than 20 percent for diabetes mellitus, the Board concludes that updated treatment records should be obtained, and a current VA examination is warranted. Accordingly, these issues are remanded to the RO for the following: 1. The RO should contact the USASCRUR and ask that organization to attempt to verify the veteran's claimed Vietnam stressors, such as mortar attacks and deaths of two fellow soldiers (William Pittman or Pitman; and Johnson). For this purpose, the RO should provide the USASCRUR with copies of the veteran's pertinent service records and a summary of claimed stressors. The RO should also ask the USASCRUR to provide unit histories for the veteran's units when he was in Vietnam. 2. The RO should obtain copies of all VA treatment records, dated during and since 2002, concerning diabetes mellitus and complications. 3. The RO should then have the veteran undergo a VA examination to determine the severity of his service-connected diabetes mellitus. The claims folder should be provided to and reviewed by the doctor. 4. The RO should thereafter review the claims for service connection for PTSD and for a rating higher than 20 percent for service-connected diabetes mellitus. If the claims are denied, the RO should provide the veteran and his representative with a supplemental statement of the case, and give them an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ L.W. TOBIN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.