Citation Nr: 1007133 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-08 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus (DM), type II, with bilateral diabetic neuropathy, cataracts, and peripheral neuropathy of the upper and lower bilateral extremities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from December 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims for service connection for PTSD and a rating in excess of 20 percent for diabetes mellitus. The Board observes that the Veteran has raised a claim of entitlement to total disability rating due to individual unemployability (TDIU rating). This claim has not yet been adjudicated by the RO and so it is REFERRED to the RO for appropriate action. 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 is seeking service connection for PTSD and a higher rating for his service-connected diabetes mellitus (and service-connected noncompensable complications thereof). The Board has determined that additional development is required for the reasons discussed below. As an initial matter, review of the Veteran's claims file reveals that the most recent VA treatment records are dated in March 2006. Accordingly, the RO must obtain any available VA treatment records from that date to the present. The Veteran should also be afforded the opportunity to submit any available private treatment records, if applicable. 1. A Rating in Excess of 20 Percent for Diabetes Mellitus (and Related Service-Connected Conditions) With respect to the issue an increased rating, the Veteran must be afforded a VA diabetes examination, to include appropriate examination of his bilateral diabetic retinopathy, cataracts, and peripheral neuropathy of the bilateral upper/lower extremities, all of which are secondary to his service-connected DM, and currently rated as noncompensable. The Veteran has submitted multiple statements indicating that his diabetes has increased in severity. For example, in July 2006 the Veteran reported that his diabetic neuropathy condition was adversely affecting his ability to walk; he further stated that his bilateral eye conditions (cataracts and retinopathy) were affecting his visual actuity and, thus, his ability to work as a photographer. See VA Form 21-4138, July 2006. Contemporaneous medical evidence of record also suggests that the Veteran's service-connected DM disability has worsened. Indeed, a June 2005 VA treatment note indicated that the Veteran diabetes and related neuropathy had limited his mobility. Another VA treatment note from Dr. Neibaur reflected that his diabetes affected his ability to walk and exercise. See VA Addendum, Dr. Neibaur, July 2006. In this regard, it is clear that the Veteran meets the criteria for the currently assigned 20 percent rating under Diagnostic Code (DC) 7913 as the records establishes that he requires alternate use of both insulin and a hypoglycemic agent and restricted diet. See 38 C.F.R. § 4.119, Diagnostic Code 7913. What is less clear, however, is whether the Veteran's diabetes requires a "regulation of activities" (i.e., avoidance of strenuous occupational and recreational activities), which is required for the next-higher rating of 40 percent. The treatment report from Dr. Neibaur at least raises the possibility that the Veteran's diabetes has progressed to the point where regulation of activities may be necessary; however, a VA examination is needed to determine whether this is medically required as indicated under Diagnostic Code 7913. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was last afforded a VA medical examination in May 2004, nearly six years ago, to assess the severity of his DM. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Reexamination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. See 38 C.F.R. § 3.327(a) (2009). Generally, reexaminations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect (emphasis added). Id. Based on the lay and medical evidence described above, the Board believes that a new VA examination must be completed as indicated in the directives below. This examination should address whether the Veteran's diabetic conditions requires a "regulation of activities" as indicated under DC 7913, and whether the service-connected diabetic cataracts/retinopathy and bilateral neuropathy of the upper/lower extremities have worsened in severity so as to warrant separate compensable ratings. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). 2. Entitlement to Service Connection for PTSD With respect to the issue of entitlement to service connection for PTSD, the Board finds that further development of the record is necessary. 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 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. 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 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) (2009). When the evidence does not establish that a veteran is a combat veteran, 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 record 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). The Veteran has a current PTSD diagnosis; however, his claim has been denied on the basis that his alleged stressors have not been verified. In particular, he contends that his PTSD is the result of several traumatic events ("stressors") he experienced while serving in Vietnam. His DD Form 214 and personnel records confirm service in the Republic of Vietnam (and a Campaign Designation of Vietnam Counteroffensive, Phase II) from July 1966 to July 1967. He does not contend, nor does the record show, that he engaged in combat with the enemy. Rather, as a "combat photographer" (MOS: Senior Process Photographer) for the Group Headquarters, he claims that he traveled extensively, often by helicopter, and routinely photographed post-combat "loss of life" and related combat damage. He also asserts that he was involved in a helicopter crash in May, June, or July of 1967. On another occasion, the date of which was not specified, the Veteran alleged that he was photographing a "Rome Plow" land clearing operation when the unit came under fire; one solider was killed and another was seriously wounded. Again, the Veteran did not provide any information as to the date or location of this alleged incident. In July 2005, the Veteran submitted additional information regarding his claimed stressors. In particular, he indicated that his unit, the 79th Engineer Group, came under attack on several occasions between July 1966 and July 1967. These incidents allegedly occurred while he was stationed at Bien Hoa Air Force Base. See VA Form 21-4138, July 2005. In support of this claim, the Veteran submitted a publication from the Office of Air Force history, titled "Air Base Defense in the Republic of Vietnam, 1961 to 1973." This document shows that USAF Ben Hoa came under attack on at least three occasions between 1966 and 1967. The dates and types of attacks are as follows: October 18, 1966 (Sapper attack); February 7, 1976 (Sabotage attack); and May 12, 1967 (Standoff attack). Again, according to his personnel records, the Veteran was serving in the Republic of Vietnam during these time periods; however, his exact location is unclear. The events outlined above are stressors that may be capable of verification, and an attempt at verification may be made on this basis. See Pentecost v. Principi, 16 Vet. App. 124 (2002) (mortar/rocket attack may in some cases be a satisfactory stressor for PTSD). As the Veteran did not engage in combat, the alleged stressors must be verified by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). Because no attempt to verify stressors through the United States Army & Joint Services Records Research Center (JSRRC) has yet been made, the RO should attempt to verify the listed stressors through JSRRC. Specifically, upon remand, the RO should attempt to confirm that the Veteran's unit, the 79th Engineer Group, was based at Bien Hoa Air Force Base during one or more of the attacks on October 18, 1966, February 7, 1976, and/or May 12, 1967. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain any available VA Medical Center treatment records dated from March 2006 to the present. All attempts to obtain these records, and any responses received there from, should be memorialized in the Veteran's claims file. The Veteran should also be afforded the opportunity to submit any private treatment records, if applicable, in support of his claim. 2. Entitlement to a Rating In Excess of 20 Percent for Service Connected Diabetes Mellitus After obtaining the aforementioned medical records, if available, the Veteran should be scheduled for a new VA diabetes examination with an appropriate expert(s). The VA examiner should thoroughly review the Veteran's claims file and a copy of this REMAND in conjunction with the examination and state this has been accomplished in the VA examination report. The examination should specifically address the following: Does the Veteran's current DM require insulin, a restricted diet and regulation of activities? If the Veteran's current DM requires insulin, a restricted diet and regulation of activities, does he also suffer from episodes of ketoacidosis or hypoglycemic reactions that required one or two hospitalizations per year or twice a month visits to a diabetic care provider? If the Veteran requires insulin, does he require more than one daily injection, a 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 complications? The examiner should also address the impact of the Veteran's service-connected diabetes mellitus on his ability to work (regardless of his age). 3. Diabetic Peripheral Neuropathy of the Bilateral Lower Extremities, Currently Rated as Noncompensably Disabling The Veteran should be scheduled for a VA neurological examination, preferably by a neurologist, to determine the severity of his service-connected diabetic neuropathy of his right and left lower extremities. All indicated tests and studies should be performed and all findings should be reported in detail. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should specifically comment upon the nerve(s) affected by the peripheral neuropathy and address the absence or presence of the following: Complete paralysis, to include foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or lost; incomplete paralysis, if paralysis is incomplete, please indicate whether the paralysis is mild, moderate, or severe. The examiner should provide derailed rationale for the requested opinions. Any indications the Veteran's complaints are not in accord with the physical findings on examination should be directly addressed and discussed in the examination report. The examiner should also address the impact of the Veteran's service-connected diabetic neuropathy of the bilateral lower extremities on his ability to obtain and maintain gainful employment. 4. Diabetic Peripheral Neuropathy of the Bilateral Upper Extremities, Currently Rated as Noncompensably Disabling The Veteran should be scheduled for a VA neurological examination, preferably by a neurologist, to determine the severity of his service-connected diabetic neuropathy of the right and left upper extremities. All indicated tests and studies should be performed and all findings should be reported in detail. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must comment on the absence or presence of the following: complete paralysis (of ulnar nerve), to include griffin claw deformity, due to flexor contraction of the ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences, loss of extension of ring and little fingers, cannot spread fingers (or reverse), cannot adduct thumb, flexion of wrist weakened; or complete paralysis (of median nerve), to include the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger, cannot make a fist, index and middle fingers extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. If paralysis is incomplete, (for the ulnar or median nerve) please indicate whether the paralysis is mild, moderate, or severe. Complete detailed rationale should be provided for all requested opinions. Any indications the Veteran's complaints are not in accord with the physical findings on examination should be directly addressed and discussed in the examination report. The examiner should also address the impact of the Veteran's service-connected diabetic neuropathy of the bilateral upper extremities on his ability to obtain and maintain gainful employment. 5. Diabetic Bilateral Retinopathy/Cataracts, Currently Rated as Noncompensably Disabling The Veteran should be scheduled for a VA eye examination to determine the severity of his service-connected diabetic retinopathy and cataracts. The claims folder must be made available to the examiner for review in conjunction with the examination. The examination should include any necessary diagnostic testing or evaluation, and the examination report should include a discussion of the extent of visual impairment, if any. The examination report should comply with all AMIE protocols for rating eye disabilities. The examiner should specifically address visual acuity or field loss, pain, rest-requirements, or episodic incapacity, and indicate/describe any active pathology. Finally, the examiner should indicate the effect the Veteran's cataracts and/or retinopathy have on his ability to obtain and maintain gainful employment. 6. Entitlement to Service Connection for PTSD a. Provide the Veteran another opportunity to supplement the record with any additional details concerning stressors, particularly the time periods reflecting the occurrences of the helicopter crash (i.e. month and year); the location of said occurrences; the names of individuals injured or killed; "buddy statements" containing verifiable information, to include time periods, regarding the events claimed as "stressors" during his military service; and any other information which could be used to substantiate the PTSD claim. b. Forward the Veteran's statements of alleged PTSD stressors, to include his claim that he was stationed at Bien Hoa Air Force Base (attached to the 79th Engineer Group) when confirmed attacks occurred on October 18, 1966, February 7, 1976, and/or May 12, 1967, as well as copies of his service personnel records and any other relevant evidence, to the United States Army & Joint Services Records Research Center (JSRRC). Request that JSRRC attempt to verify the alleged stressors. A specific request should be made for the location(s) of the Veteran's unit on or about the dates of the confirmed attacks on the Bien Hoa AF Base -- October 18, 1966, February 7, 1976, and/or May 12, 1967. Specifically request that JSRRC provide the unit history for the Veteran's unit. If more detailed information is needed for such research, the Veteran should be given the opportunity to provide it. If a negative response is received from JSRRC, the claims file must be properly documented in this regard. 7. Thereafter schedule the Veteran for a VA psychiatric examination for the purpose of ascertaining whether PTSD found present is related to service. a. The examiner should conduct the examination with consideration of the current diagnostic criteria for PTSD. The examination report should include a detailed account of all pathology present and all indicated special studies, including psychological studies, should be accomplished. b. If a diagnosis of PTSD is appropriate, the examiner should specify: (1) whether each alleged stressor was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be sufficient to produce PTSD by the examiner. Any opinions expressed by the examiner must be accompanied by a complete rationale. c. If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran's military service. The Veteran should be advised of the consequences of his failure to report for a scheduled examination, pursuant to 38 C.F.R. § 3.655 (2009). The file must be properly documented regarding any notifications to the veteran as to the scheduled examination. 8. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims for entitlement to service connection for PTSD and an increased rating for DM, to include separate, compensable ratings for cataracts, retinopathy, and/or neuropathy of the upper/lower bilateral extremities, should be readjudicated. If the benefits sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board as appropriate. The appellant has the right to submit additional evidence and argument on the matter or 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. 2009). _________________________________________________ MARJORIE A. AUER 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) (2009).