Citation Nr: 0815077 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-25 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus type II. 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the cervical spine with foraminal stenosis and radiculopathy, effective July 2, 2003. 3. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine with foraminal stenosis and radiculopathy, effective September 25, 2007. 4. Entitlement to an initial evaluation in excess of 0 percent for bilateral hearing loss. 5. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. 6. Entitlement to an initial evaluation in excess of 0 percent for erectile dysfunction. 7. Entitlement to service connection for post-traumatic stress disorder (PTSD). 8. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus type II. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from November 1961 to November 1981. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In September 2004, the RO granted service connection for diabetes mellitus type II assigning a 20 percent rating, effective July 2, 2003; degenerative disc disease of the cervical spine, C5-7 with foraminal stenosis resulting in left-sided radiculopathy, assigning a 10 percent rating, effective July 2, 2003; hearing loss assigning a 0 percent evaluation, effective July 2, 2003; tinnitus assigning a 10 percent evaluation, effective July 2, 2003; and erectile dysfunction assigning a 0 percent rating, effective August 11, 2004. In the same rating decision, the RO denied service connection for PTSD. The RO denied service connection for hypertension in November 2004. In November 2007, the RO granted an increased rating of 20 percent for the cervical spine disability, effective September 25, 2007. The veteran has not indicated that he is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The veteran testified before a Veterans Law Judge (VLJ) at a Board hearing at the RO in May 2007. The VLJ subsequently retired and the veteran elected to testify at another hearing. In February 2008, the veteran testified before the undersigned VLJ at a second Board hearing at the RO. Transcripts of both hearings are of record. The issues of initial increased ratings for diabetes mellitus type II, degenerative disc disease of the cervical spine, and erectile dysfunction; and service connection for hypertension addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran submitted testimony during the February 2008 Board hearing prior to the promulgation of a decision that he wished to withdraw his appeal with respect to the increased rating claims for bilateral hearing loss and tinnitus. 2. Resolving all doubt, the record shows a diagnosis of PTSD related to the veteran's reported stressors, and credible supporting evidence that the in-service stressors occurred. CONCLUSIONS OF LAW 1. Because the veteran has withdrawn his appeal with respect to an initial evaluation in excess of 0 percent for bilateral hearing loss, the Board does not have jurisdiction to consider that claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2007). 2. Because the veteran has withdrawn his appeal with respect to an initial rating in excess of 10 percent for tinnitus, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2007). 3. PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304, 4.125 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn issues A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The veteran has withdrawn this appeal as to the increased rating claims for bilateral hearing loss and tinnitus. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction and dismissal of the increased rating claims for bilateral hearing loss and tinnitus is warranted. Service connection The veteran seeks service connection for PTSD. He submitted statements and testimony of being exposed to many stressors in Vietnam during combat situations including being in a tunnel in an abandoned North Vietnamese Army base camp when it collapsed onto him and having to kill a female sapper, who was trying to blow them up in August 1967. He recalled that a Vietnamese Freedom Fighter he was with pulled him out of the tunnel into a larger room as the roof of that section of the tunnel was coming down all around him and that he opened his eyes to see rotting corpse parts lying on him. He also recalled walking along a path in the middle ring of the compound at night when he heard soft footsteps behind him and he shot the person; later finding out it was a Vietnamese woman armed with explosives. He indicated that he still had trouble flying and hated crowds due to the collapsed tunnel incident and that his wife would not wake him up if she was close to him because he would strike out. He submitted a detailed timeline outlining the events that took place in Vietnam during his tour. His wife and friends also submitted statements in support of his claim, noting the current symptoms they had observed. 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, 1131. "Service connection" basically means that the facts, shown by the 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 requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.)) (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to this 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); see 38 U.S.C.A. § 1154(b); see also Cohen v. Brown, 10 Vet. App. at 138; Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Regardless of whether the veteran is determined to have engaged in combat, a veteran is still required to show evidence of a current disability and a link between that current disability and service. See Clyburn v. West, 12 Vet. App. 296, 303 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran's personnel records show he served in the Republic of Vietnam from June 15, 1966 to September 14, 1967 as a Light Missile Field Artillery Officer. He earned, in pertinent part, a Bronze Star Medal, Air Medal, Army Commendation Medal with 1 Oak Leaf Cluster, Vietnam Gallantry Cross with Palm Unit Citation, Vietnam Civil Actions Unit Citation, and a Presidential Unit Citation for his service. A February 1971 service medical record notes that the veteran was subjected to hostile fire in the Republic of Vietnam and sustained injury. The veteran has provided consistent statements with respect to the stressors he was exposed to in service and there is no reason shown to doubt his credibility. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The personnel records, particularly the military occupational specialty he had in Vietnam, and the service medical records noting exposure to combat further corroborate the veteran's statements. While specific documentation of the events the veteran experienced in service are not shown, based on the veteran's credible statements, personnel records, and service medical records, and with no evidence to the contrary, these events are presumed to have taken place. A June 2006 private biopsychosocial assessment notes the veteran's stressors including being buried alive in a booby trapped tunnel complex discovered near his fire base. The "dead-fall" booby trap included dead body parts; and a member of his supported Vietnamese LLDB unit was able to free him by pulling him out by his feet. The veteran reported that he avoided discussion or reminders of his experiences in the military noting that to do so brought on episodes of combat-related nightmares, intrusive thoughts, hypervigilance, and avoidance of stimuli reminding him of those experiences. He had the occasional sense of reliving the experiences and exaggerated startle response; he also described sleep disturbances, difficulty concentrating, and increased amounts of irritability and anger. He reported problems with fear of enclosed spaces after being buried alive during a booby-trapped tunnel cave-in and also feared flying due to a sense of being closed in when the airplane doors were sealed prior to takeoff. The examiner diagnosed the veteran with chronic PTSD based on the veteran's stressors. A February 2007 VA examination report shows the veteran continued to suffer severe, chronic depression, anxiety, anger, irritability, labile mood swings, periodic flashbacks, disillusionment, survivor guilt, and social withdrawal resulting from his traumatic combat experiences while serving in the Field Artillery in Vietnam. The veteran provided the examiner with detailed written statements that outlined his stressors. The examiner found that there was no evidence of manipulation or malingering on the veteran's part; nor did he suffer from a personality disorder. The examiner then diagnosed the veteran with PTSD based on the veteran's reported stressors. The examiner noted that although one could certainly admire the stoic courage and nobility the veteran had shown over the years in coping with his many severe, chronic PTSD symptoms, this should in no way lessen the understanding of the depth of suffering he has had to endure over most of his adult life, directly resulting from serving his country during a time of war. The record shows a diagnosis of PTSD related to the veteran's reported stressors, and the veteran is entitled to a presumption that the incidents reported as in-service stressors occurred. Therefore, service connection for PTSD is warranted. See 38 C.F.R. § 3.102. The veteran's service connection claim for PTSD has been considered with respect to VA's duty to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). ORDER The appeal with respect to the claim for entitlement to an initial evaluation in excess of 0 percent for bilateral hearing loss is dismissed. The appeal with respect to the claim for entitlement to an initial evaluation in excess of 10 percent for tinnitus is dismissed. Entitlement to service connection for PTSD is granted, subject to the rules and payment of monetary benefits. REMAND The veteran has not received a notice letter with respect to his initial increased rating claims for diabetes mellitus, degenerative disc disease of the cervical spine, or erectile dysfunction. In Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008), the U.S. Court of Appeals for Veterans Claims highlighted additional notice requirements for increased rating claims, particularly notice that the veteran should submit evidence demonstrating a worsening of disability and the effect the worsening has on the veteran's employment and every day life; and if the veteran's disability is the type that an increased rating would not be substantiated by him generally demonstrating a worsening in disability, a copy of the rating criteria used to rate the disability. Proper notice letter should be provided to the veteran, addressing all the criteria for his increased rating claims. The veteran seeks service connection for hypertension, to include as secondary to diabetes mellitus type II. A VA medical opinion was provided in November 2004, which found that the veteran's essential hypertension was not related to diabetes, with normal renal function at that time. The examiner, however, did not offer an opinion on whether the diabetes mellitus type II had aggravated the veteran's hypertension disability beyond its normal progress. And, since the veteran has been granted service connection for PTSD, the medical opinion should also address whether the PTSD has aggravated the hypertension disease beyond the normal progress. Additionally, the examiner did not state whether the hypertension was related to the veteran's service. The service medical records show the veteran reported two dizzy spells related to exertion in May 1976. A February 1979 blood pressure reading also shows a diastolic blood pressure reading of 90. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm, or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), under Diseases of the Arteries and Veins. These must be confirmed by readings taken two or more times on at least three different days. Id. The veteran should be provided another examination to determine whether his hypertension was aggravated by his diabetes mellitus type II or PTSD, or whether the hypertension is related to service. 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 initial increased rating claims for diabetes mellitus rated as 20 percent disabling, degenerative disc disease of the cervical spine rated as 10 percent disabling, effective July 2, 2003 and 20 percent, effective September 25, 2007, and erectile dysfunction rated as 0 percent disabling. 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 disabilities and the effect that worsening has on the veteran's employment and daily life. (b) Copies of the rating criteria for diabetes mellitus type II (Diagnostic Code 7913), degenerative disc disease of the cervical spine, both the new and old criteria (Diagnostic Codes 5290, 5293, 5295, effective prior to September 26, 2003, and the General Rating Formula for Diseases and Injuries of the Spine, effective September 26, 2003), and erectile dysfunction (Diagnostic Codes 7599-7522). (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 following: (a) Whether the veteran's hypertension was at least as likely as not aggravated by his diabetes mellitus type II beyond the normal progress of the disease. (b) Whether the veteran's hypertension was at least as likely as not aggravated by his PTSD beyond the normal progress of the disease. (c) Whether the veteran's hypertension is at least as likely as not related to the veteran's service. The examiner should review the claims file and specifically note the findings of dizzy spells with exertion in May 1976 and the diastolic blood pressure reading of 90 in February 1979. 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. 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 Department of Veterans Affairs