Citation Nr: 0809932 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 04-44 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from December 1965 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for peripheral neuropathy of the bilateral lower extremities assigning 10 percent ratings, effective May 28, 2002; and denied service connection for PTSD. The issues of initial evaluations in excess of 10 percent for peripheral neuropathy of the bilateral lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The most probative medical evidence of record shows the veteran does not have a diagnosis of PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service, directly or presumptively. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & West Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.125(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in August 2002. The RO provided the appellant with notice pursuant to Dingess v. Nicholson in March 2006, subsequent to the initial adjudication. While the second notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a July 2007 supplemental statement of the case, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claim. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained a medical opinion as to the presence and etiology and of any PTSD disability. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The veteran seeks service connection for PTSD based on stressor events during his tour in the Republic of Vietnam. He stated that he was stationed at Monkey Mountain, Marble Mountain, Deep Water Piers, and the main supply depot in Danang and that he was involved in perimeter watch/guard duty on a nightly basis for 18 months. He indicated that he was under fire on a routine basis and subjected to the possibility of death, which stressed him out and later caused his PTSD. He noted that presently he had suicidal impulses and destructive behaviors and that his driver's license was put on probation for high risk bad driving. He also reported that he had been placed on probation at work for problems dealing with staff and costumers. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. Service connection for PTSD, in particular, requires medical evidence establishing a diagnosis in accordance with 38 C.F.R. § 4.125(a) (the diagnosis must conform to DSM-IV and be supported by findings on examination), credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 137-38 (1997). Section 4.125(a) of 38 C.F.R. incorporates the Diagnostic and Statistical Manual of Mental Disorders-IV as the governing criteria for diagnosing PTSD. Service personnel records show the veteran was a personnelman in the U.S. Navy and served at U.S. Naval Support Activity in Danang, Vietnam, from June 1, 1966 to December 16, 1967. The veteran's unit was awarded the Navy Unit Commendation Ribbon and issued a letter from the Secretary of the Navy for meritorious service (which represents part of the veteran's service) for unloading, moving, and storing supplies to support the expanding tactical forces within I Corps Area in the Republic of Vietnam. The letter further notes that duties were carried out in spite of continuous exposure to attack from hostile forces at all facilities. Even though the records do not specifically note that the veteran was exposed to attack from hostile forces, once independent verification of a stressor event has been submitted, the veteran's personal exposure to the event may be implied by the evidence of record. A veteran need not substantiate his actual presence during the stressor event; the fact that the veteran was assigned to and stationed with a unit that was present while such events occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002). The determinative issue, therefore, is whether the veteran has a probative diagnosis of PTSD related to the stressor events in service. The favorable evidence consists of an April 2003 letter from a private physician, who notes that the veteran's irritability, problems with his temper and working with others were caused by a combination of PTSD as related to his Vietnam service and also his cerebrovascular accident. A May 2004 letter from the same private physician further notes that the veteran suffered from PTSD. The physician noted that the veteran met or exceeded the diagnosis under DSM-IV as published by the American Psychiatric Association and that he had these symptoms long before he had a stroke. A May 2004 treatment record also notes a diagnosis of PTSD, presently stable. The unfavorable evidence consists of a May 2003 VA examination report, which notes the claims file was reviewed in detail. The examiner noted that the veteran's Vietnam service was confirmed and that the veteran's unit received a citation for their efficiency in operating logistical activities at the Port of Danang. The veteran reported that his duties at Danang basically consisted of perimeter guard, which he carried out largely by himself. He indicated that this was somewhat frightening and that at times small arms fire occurred and that some grenades exploded. He noted that there were few major "incoming round" episodes while he was there. He reported no casualties in his immediate unit, although one member apparently committed suicide. After leaving the Navy, the veteran reported that he began to develop panic attacks in the 1970's characterized by tightness in the chest, heart palpitation, cold sweats, and a sensation of impending death. He was able to complete college and worked for a number of years as a manager in a county health department. In 1996, however, he suffered a cerebral vessel embolization with stroke. Following his recovery, he evidenced some personality change and was unable to carry out his former managerial duties. He has had some temper outbursts and a stormy personal life resulting in a divorce. He reported that he still had panic attacks on occasion with the symptoms described above, although these occurred now once a month or less frequently. The examiner observed that the veteran did not present himself as being markedly depressed or socially inactive on examination. He reportedly proudly displayed a picture of the woman he was engaged to and noted that he had previously dated a number of younger women. He rode a Harley Davidson motorcycle and had an earring and tattoo on his left hand and jokingly remarked that he always wanted to be a pirate. He remained close to his teenage daughter who chose to live with him after the divorce; she did well in school and was preparing to enter college. He continued to work full-time although he seemed to be regarded somewhat as a problem and, in turn, reciprocated dislike for management there. The examiner noted that some impact of wartime events had been speculated about on neuropsychological evaluations from 1996 to 2003 but no firm diagnosis of a war-related nature had been made, despite extensive study of the veteran. The examiner found that the veteran did not report the type of sleep disturbance often seen in PTSD, but rather reported that he tended to sleep soundly, especially since his cerebrovascular accident. He had no remembered dreams of the military or other combat. He also did not report spontaneous awakenings or arousals. He did not report recurring intrusive and distressing thoughts about the war during the day time. He reported occasionally philosophizing about it and felt somewhat embittered or cynical about it in a general sense. A thunderstorm might remind him of the war, but in general, he spent little time thinking about it and had indeed tried to put it behind him. He did avoid some reminders, such as going to war movies. He professed no amnesia for his military time and did not present a picture of significant blunting or numbing of emotional responsiveness. Since his divorce, he had a good deal of dating activity with five or six younger women and proudly reported that he was presently engaged to marry a 20-year- old, as noted above. He reported a good relationship with his daughter, with whom he maintained a home. He maintained his hobbies of working on cars and building models and enjoyed riding his motorcycle. He also reported enjoying swapping or trading things. At times, he simply enjoyed relaxing, enjoying the sky or ocean and did not indicate a sense of a foreshortened future. He remarked that he had generally good health and energy level. The veteran had problems with anger and irritability, which as noted above, had gotten him into serious work difficulty. His daughter regarded him as rigid and controlling and he admitted that he controlled her dating to the point of going out with her on dates for several hours initially to check them out. He also had some problems with concentration and now kept an appointment book. He could learn material from reading, if necessary for his work, or for making home repairs. He denied the presence of startle response or hypervigilance. He endorsed periods of depression but on examination did not report a significant number of symptoms in that area to justify a current active diagnosis. On mental status examination, the veteran initially displayed some bitterness, although later he was more cooperative and left in a reasonably good humor. He gradually related better with the examiner and appeared sincere in his history, but was somewhat lacking in insight. His thinking was generally linear and he did not display gross memory defects or difficulties with concentration, which would have suggested the presence of major cognitive impairment; although there was a certain rigidity of thought. He showed no signs of a psychotic condition, such as hallucinations, delusions, inappropriate affect, or loosened associations. His mood was generally euthymic and he offered no homicidal or suicidal ideation. His insight was not very marked and he seemed somewhat ambivalent as to whether he needed any more counseling. The examiner concluded that the veteran did not meet the current DSM-IV criteria for a diagnosis of full- blown PTSD. In fact, he would hardly qualify for a "subthreshold" or "partial" PTSD diagnosis. His description of his stressors seemed rather minimal, and he certainly did not have significant blunting of emotional responsivity or the "reliving" symptoms required for a PTSD diagnosis. He had some symptoms of heightened arousal, but these seemed more logically related to a personality change and some cognitive impairment resulting from his cerebrovascular accident long after military duty. The examiner found that as the veteran presented himself, the justifiable diagnosis included dementia secondary to cerebrovascular accident, but of mild current degree. Further, a diagnosis of personality change also secondary to cerebrovascular accident as indicated; it was this personality factor, which seemed to have caused him major work difficulties as described above. The most probative evidence in this case is against the veteran's claim. The private physician, who determined that the veteran had PTSD related to his service in Vietnam did not offer any rationale for this opinion or comment on any of the veteran's claimed stressors or present symptomatology. The treatment records that the physician submitted, which documented extensive neuropsychological treatment from 1996 to 2003 also showed no diagnosis of PTSD. A medical opinion based on speculation, without supporting clinical data or other rationale does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). On the other hand, the VA examiner, who found no diagnosis of PTSD, listed in detail the veteran's history in service up to the present. The examiner also provided extensive rationale for the veteran's present diagnoses and a detailed account for the veteran's in-service stressors and his symptomatology since service. Based on the most probative evidence of record, the veteran does not have a confirmed diagnosis of PTSD related to his military stressors. As a diagnosis of a psychosis was not shown within one year of discharge from service, service connection is not warranted on a presumptive basis, as well. See 38 C.F.R. §§ 3.307, 3.309. Although the veteran has argued that he has PTSD related to his Vietnam service, this is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the veteran's lay assertions have been considered, they do not outweigh the most probative medical evidence of record, which shows that the veteran does not meet the criteria for a diagnosis of PTSD. A competent medical expert makes this opinion and the Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The preponderance of the evidence is against the service connection claim for PTSD; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for PTSD is denied. REMAND In June 2003, the veteran was assigned two 10 percent ratings for peripheral neuropathy of the bilateral lower extremities as secondary to his service-connected diabetes mellitus. He submitted a notice of disagreement in May 2004 claiming entitlement to a higher rating and stating that both of his feet were 100 percent numb all of the time. The veteran was afforded a general VA examination in May 2003, which noted that one of the side effects of his diabetes was peripheral neuropathy in that he had tingling in the toes. It was noted that the veteran's motor strength was 5/5 in the lower extremities and that his gait and station appeared to be normal; however, a full neurological and sensory examination was not provided. As the veteran has indicated a worsening in his condition since his May 2003 VA examination and he has never been given a full neurological and sensory work-up of his peripheral neuropathy of the bilateral lower extremities, another VA examination is necessary to resolve those claims. See VAOPGCPREC 11-95 (1995); see also Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. Send the veteran a notice letter addressing his claim for initial evaluations higher than 10 percent for peripheral neuropathy of the bilateral lower extremities that is in accordance with all relevant criteria under Vazquez- Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). 2. Schedule the veteran for a VA neurological examination to obtain an opinion as to the present severity of his peripheral neuropathy of the bilateral lower extremities. The examiner should, at a minimum, determine the following: (a) Whether there is mild, moderate, moderately severe, or severe incomplete paralysis with marked muscular atrophy in the bilateral lower extremities. (b) Whether there is complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The claims folder must be made available to the examiner for review in conjunction with this examination. The examiner must provide a detailed rationale for all medical opinions. 3. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. Then, re- adjudicate the claims. If the claims remains denied, the RO should issue a Supplemental Statement of the Case (SSOC) and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs