Citation Nr: 1008069 Decision Date: 03/04/10 Archive Date: 03/11/10 DOCKET NO. 07-34 665A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to inservice exposure to herbicides. 2. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. 3. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. 4. Entitlement to service connection for hearing loss. 5. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.J. Bakke-Shaw, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to December 1969. This appeal arises before the Board of Veterans' Appeals (Board) from an August 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The issues of entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder, hearing loss, and tinnitus are addressed in the Remand portion of the decision below are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The medical evidence does not show that the Veteran is currently diagnosed with diabetes mellitus. 2. The medical evidence does not establish that the Veteran's hypertension is the result of his active service, or of a service-connected disability. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by, nor may it be presumed to be the result of, active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309(e) (2009). 2. Hypertension was not incurred in or aggravated by, nor may it be presumed to the be result of active military service or of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Letters dated in December 2005 and March 2006 satisfied the duty to notify provisions for the issues of service connection for diabetes mellitus and hypertension, after which the claim for service connection was adjudicated. See 38 C.F.R. § 3.159; Kent v. Nicholson, 20 Vet. App. 1 (2006); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the Veteran what was necessary to substantiate his claims for service connection and as such, the essential fairness of the adjudication was not affected. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records have been obtained. It is noted that the Veteran identified private treating providers who treated him for his diabetes mellitus in his initial claim. However, while requested by the RO, the Veteran failed to provide a completed authorization and consent to release form to enable the RO to obtain these private medical records. VA treatment records were identified, but concerned treatment for his claimed posttraumatic stress disorder (PTSD) only. The Veteran has also submitted private treatment records on his own. No VA examination was provided to the Veteran in connection with these claims. However, VA examinations are not required in all cases. The Veteran has not submitted medical evidence of a diagnosis of diabetes mellitus. Concerning his claimed hypertension, he has not submitted evidence or has averred that such evidence exists to establish that his hypertension had its onset during active service or of continuity of symptomatology from service to the present, or that there is an etiological link, or nexus, between his active service and his currently diagnosed hypertension. Rather, he argues that his hypertension is the result of his diabetes mellitus. In this circumstance, VA examination is not required. See 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). There is no other indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 493. Service connection may be established for disability resulting from injury or disease incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran argues that he has developed diabetes mellitus as the result of inservice exposure to the herbicide Agent Orange, and that his hypertension is the result of his diabetes mellitus. The regulations provide for the presumptive service connection of certain diseases associated with exposure to certain herbicide agents, including Agent Orange. Type II diabetes mellitus is one of the specified diseases. See 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). A veteran who, during active military service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that he was not. Service in the Republic of Vietnam is defined by the regulations as service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii). Secondary service connection may be granted for disability that is proximately due to, or the result of, a service- connected disease or injury. 38 C.F.R. § 3.310(a). However, the Board will also consider whether direct service connection may be granted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). In this vein, the regulations provide that continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as diabetes mellitus and hypertension to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1137; 38 C.F.R. §§ 3.307, 3.309. Service personnel records reflect that the Veteran served in Vietnam from August 1968 to August 1969. Exposure to Agent Orange is conceded. Diabetes mellitus Private medical treatment records dated from 1999 to 2006, include some laboratory findings of elevated glucose from June to November 2005. However, these records do not show that the Veteran has been diagnosed with diabetes mellitus. Absent a diagnosis of diabetes mellitus, service-connection for the disability cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ( "in the absence of proof of a present disability, there can be no valid claim.") Hypertension The Veteran reported complaints of high blood pressure on entrance to active service. The examiner noted that the Veteran stated he had a history of high blood pressure occurring once. Physical examination revealed his blood pressure at entrance to active service was measured at 120 over 80 and no other heart or vascular defects, diagnoses or other abnormalities were noted. There were no complaints or findings of high blood pressure during active service. At discharge form active service, the Veteran again complained of high blood pressure. The examiner reported a history of high blood pressure 1964, but noted that it was within normal limits at present. The Veteran's blood pressure was measured at 130 over 86 at discharge. At the outset, the Board notes that to the extent that the notations of a history of high blood pressure one time and in 1964 (pre-service) may be interpreted as a pre-existing condition, such notations do not meet the clear and unmistakable standard required to rebut the presumption of soundness at entrance into active service. No preexisting hypertension was noted upon entrance into service. No abnormalities in the Veteran's heart or vascular system was found, and blood pressure was measured at 120 over 80 at entrance to active service and specifically found to be within normal limits at discharge from active service. Moreover, the notations of a history of high blood pressure appear to be based solely on the Veteran's reported history, absent any medical evidence of same. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1111; LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Hence, the Veteran is presumed to have been sound on entrance to active duty. Moreover, his service treatment records are completely silent as to any findings or diagnosis of hypertension during service. Following the Veteran's discharge from active service in 1969, the earliest documentation of treatment for hypertension is an April 1999 private treatment note. However, the condition was not among those conditions diagnosed at that time. A December 2005 private medical record shows a diagnosis of hypertension. The record contains no medical findings or opinions establishing that the Veteran's diagnosed hypertension is causally related to his active service or, in the alternative, that it had its onset within the year following his active service. The Veteran asserts that he has diabetes mellitus that is the result of his active service, and that his hypertension is the result of his diabetes mellitus or, in the alternative, of his active service. However, as a layperson, lacking in medical training and expertise, the Veteran's statements are not competent evidence to establish that he is diagnosed with diabetes mellitus, or that an etiologic relationship exists between his hypertension and any service-connected disability, or between his hypertension and active service. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). It is noted that the earliest medical evidence of record showing a diagnosis of hypertension is dated in 2005. Even assuming, without finding, that treatment records dated in 1999 establish the onset of hypertension then, this is still decades beyond the one-year presumptive period following his discharge from active service in 1969. Moreover, this thirty year period without any diagnosis or treatment for hypertension having been shown goes against granting service connection based upon continuity of symptomatology. As there is no medical evidence to establish that the Veteran is diagnosed with diabetes mellitus, and that his diagnosed hypertension is the result of a service-connected disability or the result of his active service or, in the alternative, had its onset within one year following his active service, the preponderance of the evidence is against these claims for service connection. Therefore, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for diabetes mellitus and hypertension is not warranted. The Veteran is encouraged to resubmit his claims should he be diagnosed with diabetes mellitus. ORDER Service connection for diabetes mellitus is denied. Service connection for hypertension is denied. REMAND The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD; hearing loss; and tinnitus. Private medical records dated in 2005 show that the Veteran has been diagnosed with anxiety. His private treating physician submitted a statement in February 2006 indicating that in her opinion, the Veteran exhibited significant anxiety and depression, and was possibly suffering from PTSD. Private medical records dated in 2005 also include the results of hearing acuity tests. Although shown in graphical format, it appears to show hearing loss in both right and left ears. It is thus determined that the record also demonstrates current hearing impairment. While the record does not show a diagnosis of PTSD, per se, the U.S. Court of Appeals for Veterans Claims (Court) held that claims for service connection for PTSD necessarily include claims for service connection for all psychiatric disabilities reasonably raised by the Veteran or the evidentiary record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue is thus recharacterized as shown on the front page of this decision. Moreover, while the record demonstrates hearing impairment, it cannot be determined if such hearing impairment meets the criteria for hearing loss under 38 C.F.R. § 3.385 (2009). Service medical and personnel records document the Veteran served in Vietnam from August 1968 to August 1969. He was assigned as a personnel records specialist to Alpha Company, 7th Support Battalion, 199th Infantry Brigade. His report of discharge reflects that he was awarded the Army Commendation Medal. The Veteran has submitted several stressor statements that allege exposure to general and specific combat-related stressors including the aftermath of a suicide, the death of a specific individual, and exposure to enemy 122 millimeter rocket fire which hit the barracks or living quarters at long Binh in December 1968. While the RO attempted to verify the death of the named individual, the RO did not make a determination as to whether the Veteran's unit was exposed to combat, as required under Pentecost v. Principi, 16 Vet. App. 124, 128-9. (2002). Accordingly, remand is required to provide appropriate stressor development and to afford the Veteran VA examination to determine the nature, extent, and etiology of his claimed psychiatric and hearing disabilities. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO must attempt to obtain the Veteran's complete service personnel records, to include copies of orders, awards citations, and evaluation reports. 2. The RO must attempt to obtain unit histories, Operating Reports/Lessons Learned, and Morning Reports for Alpha Company, 7th Support Battalion, 199th Infantry Brigade from November 1968 through January 1969. The RO must make all attempts to verify the specific stressors provided by the Veteran. In particular, the RO must take all appropriate action to determine whether the Veteran's unit participated in combat operations or combat support operations within the meaning of Pentecost v. Principi, 16 Vet. App. 124, 128-9. (2002). The RO must ask the Veteran for additional information if needed. Request assistance from the National Personnel Records Center, the National Archives, and the Service Department as appropriate. 3. For #1-2, the RO must perform all follow up indicated, document negative responses, and refer to the service department for assistance where necessary. The RO must ask the Veteran to submit any and all copies of his service treatment records that he may have. If after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 4. The RO must obtain any additional VA and non-VA treatment records identified by the Veteran. In particular, the RO must ask the Veteran to identify the VA Medical Facility at which he had been treated and to identify and provide an executed release and consent form for private treatment records concerning any private treatment he has received, including from Lynn Greenhouse, M.D. of Elko, Nevada. The RO must perform all follow up indicated and document negative responses. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 5. Thereafter, the Veteran must be afforded a VA examination to determine the nature, extent, and etiology of any acquired psychiatric disorder, to include PTSD. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the service and post service medical records, as well as the Veteran's statements and other lay statements in the claims file, the examiner must state whether any acquired psychiatric disorder found, to include PTSD, is related to the Veteran's military service. A complete rationale must be provided for all opinion expressed. If the requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report prepared must be typed. 6. Thereafter, the Veteran must be afforded a VA examination to determine the nature, extent, and etiology of any hearing loss and tinnitus found. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the service and post service medical records, as well as the Veteran's statements and other lay statements in the claims file, the examiner must state whether any hearing loss and tinnitus found are related to the Veteran's military service. A complete rationale must be provided for all opinions expressed. If the requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report prepared must be typed. 7. The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.158, 3.655. In the event that the Veteran does not report for the scheduled examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. After undertaking any other development deemed essential in addition to that specified above, the RO must readjudicate the Veteran's claims for service connection for an acquired psychiatric disorder, to include PTSD; hearing loss; and tinnitus, with application of all appropriate laws and regulations, including Pentecost v. Principi, 16 Vet. App. 124, 128-9 (2002), and consideration of any additional information obtained as a result of this remand. If the issues on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative, and they must be provided an opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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). ______________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs