Citation Nr: 0814167 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-27 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for diabetes mellitus, effective August 5, 2003. 2. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, effective September 11, 2006. 3. Entitlement to service connection for peripheral neuropathy, secondary to diabetes mellitus. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2004, the RO granted service connection for diabetes mellitus assigning a 10 percent evaluation effective August 5, 2003 and denied service connection for peripheral neuropathy. The RO denied service connection for PTSD in August 2003. In March 2007, the RO granted an increased rating of 20 percent for diabetes mellitus, effective September 11, 2006. The veteran has indicated that he is not satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks an increased rating for diabetes mellitus. He is presently rated as 10 percent disabled, effective August 5, 2003 and 20 percent disabled, effective September 11, 2006. One of the criteria for receiving the next higher 40 percent rating under the rating schedule for diabetes mellitus is restriction of activities. See 38 C.F.R. § 4.119, Diagnostic Code 7913. He submitted a private medical assessment in April 2007 that he was restricted in various physical activities. Although it is not clear if these restrictions are related to his coronary artery disease or his service-connected diabetes mellitus, this is enough to warrant another examination to determine whether his diabetes mellitus has worsened since the last time he was examined in January 2006. Therefore, the veteran should be provided another VA examination for his diabetes mellitus. See VAOPGCPREC 11-95 (1995); see also Caffrey v. Brown, 6 Vet. App. 377 (1995). The veteran seeks service connection for peripheral neuropathy secondary to the diabetes mellitus. A June 2006 VA medical opinion notes that the veteran's neuropathy may be due to his cerebrovascular accident or some other process other than diabetes; but this opinion is speculative. 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). The examiner noted that the electromyography report suggested an underlying neuropathy with chronic neuropathic changes plus some radiculopathic changes. A previous January 2006 VA examination report also shows foot pulses were not palpable to either foot; and there was no sensation to the nylon line in his hands or feet; nor were there any vibratory sense or temperature discrimination in his hands and feet. The diagnoses included peripheral neuropathy. While the veteran has other problems that could account for this such as peripheral vascular disease and being status post cerebrovascular accident, he should receive a medical opinion to determine more definitively whether it is at least as likely as not that his peripheral neuropathy is related to his diabetes mellitus. The veteran also seeks service connection for PTSD. He submitted a statement that he was assigned to 528 Quartermaster Company and was stationed in Phu Bai, Vietnam. He indicated that he delivered gas, oil, ammunition, and medical supplies and that when his tour was about over he was on a convoy to Da Nang when they got attacked. He recalled that there were explosions up ahead of them and he was knocked unconscious. He also noted that when he was on perimeter guard there would be sniper fire every night. Personnel records show the veteran served in the Republic of Vietnam from January 18, 1971 to July 5, 1971 and that his military occupational specialty was light vehicle driver. He was attached to the 528th OM Co APO 96308 USARV. On April 20, 1971, while stationed in Phu Bai, he was charged with committing an assault on another serviceman by striking him with a cue stick and kicking him in the feet. Post-service private medical records note that the veteran has received psychiatric treatment, including receiving a PTSD diagnosis in August 2004 and being hospitalized for suicidal ideations from January 2005 to February 2005. The RO has not submitted a request through the U.S. Army and Joint Services Records Research Center (JSRRC) to verify the veteran's claimed stressors finding that the veteran had not offered specific enough dates. However, since the veteran indicated that the convoy stressor event occurred toward the end of his tour in Vietnam, this could be used to shrink the timeline perimeters to three months, specifically April 5, 1971 to July 5, 1971. If the veteran's stressors are corroborated by the JSRRC, the veteran should be afforded a VA examination to determine whether he has PTSD related to these stressors. Even if the veteran's stressors are not corroborated, he should be afforded a VA examination to determine whether he had a pre-existing neuropsychiatric condition that was aggravated by service. A May 1968 service medical record shows the veteran had a history of head injury four years prior (which was prior to service) and had apparent post- concussive symptoms, including chronic subdural and possible VII and V nerve paresis of the left. The veteran reported that he often found himself drifting off to sleep during the afternoons and that since the accident if he smiled it drew his left eyelid down and the eyelid often twitched. He noted that he had changed mentally and was "messed up"; he could forget where he was after one beer and became dizzy and had some "vague sense of unreality" at times. He claimed he had become more irritable and had more anger flares readily; just about everything seemed to change. His grades had slipped in school and he had been picked up by the police after several incidents of wild behavior after drinking. He noted that he had never had any police trouble prior to the accident. While in service, the veteran was struck by a car in July 1970; he was knocked down but not unconscious. As noted, he also was discharged for assaulting a fellow serviceman in April 1971. Post-service records show further evidence of a psychiatric disability and treatment for hallucinations and suicidal tendencies. A May 2004 private medical record notes the veteran was status post head injury. A medical opinion is necessary to sort out whether there is clear and unmistakable evidence that the veteran had a pre- existing neuropsychiatric disability; and if so, whether this was aggravated by his service beyond its natural progress. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a VA notice letter that satisfies Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) regarding his increased rating claim for diabetes mellitus. Specifically, the letter should include the following: (a) Notice that the veteran should submit or ask VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life. (b) Copy of the rating criteria for diabetes mellitus (Diagnostic Code 7913). (c) Notice that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. (d) Examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 2. Schedule the veteran for a VA examination by a physician with appropriate expertise to determine the current degree of severity of his service- connected diabetes mellitus. Specifically, the examiner should determine whether the veteran's diabetes mellitus requires the following: (a) Insulin and restricted diet, or; oral hypoglycemic agent and restricted diet; (b) Insulin, restricted diet, and regulation of activities; (c) Insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus other complications; or (d) More than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or other complications. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. A complete rationale for all opinions expressed should be provided. 3. Contact the JSRRC to corroborate the veteran's reported stressors of being knocked unconscious from an explosion during a convoy to Da Nang while he was stationed at Phu Bai, Vietnam, and being subjected to sniper fire as a perimeter guard. The veteran was attached to 528th OM Co APO 96308 USARV. The timeframe for the search should be April 5, 1971 to July 5, 1971. 4. After completion of #3, schedule the veteran for a VA psychiatric examination. (a) If the veteran's reported stressors are verified, the veteran should be provided a medical opinion stating whether it is at least as likely as not that the veteran has PTSD related to the confirmed stressors. (b) If the veteran's reported stressors are not confirmed or he is not shown to have PTSD related to these stressors, a medical opinion should be provided to determine whether there is clear and unmistakable evidence that the veteran had a neuropsychiatric disability related to the head injury he had prior to service; and if so, whether this was aggravated in service beyond its normal progress. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. A complete rationale for all opinions expressed should be provided. 5. Any additional development deemed appropriate should be accomplished. The claims should then be readjudicated. If the claims remain denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed 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). This claim 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 Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).