Citation Nr: 1032040 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 06-07 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from February 1987 to January 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's diabetes mellitus did not have onset during active service, did not manifest within one year of separation from active service, and is not otherwise related to his active service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303,3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). The Veteran contends that the results of laboratory tests during service include glucose readings that show that his diabetes had onset during service. He submitted a copy of a service treatment record from September 1991 which shows that his glucose result was 110 mg/dl and that the normal range for glucose is 65 to 110. In his December 2005 substantive appeal he stated that he had been treated for diabetes mellitus by a civilian physician within the presumptive period for chronic diseases. Service treatment records are absent for any mention that the Veteran had diabetes, symptoms of diabetes, or that any test results showed that he had diabetes. A separation physical examination was conducted in September 1996 and indicated no abnormalities. Most importantly, in his report of medal history from that same month, the Veteran checked boxes indicating that he did not then have nor had previously had any of a number of conditions, indicated that he was in good health, taking no medication, and had never had any illness, providing factual evidence against this own claim. As noted above, the Veteran served on active duty from February 1987 to January 1997. However, the earliest medical evidence showing that the Veteran has diabetes is found in February 2001 VA treatment notes which indicate a diagnosis of diabetes mellitus type 2. Notes from August 2001 document the Veteran's report that he had seen a Dr. "S" one month earlier and Glyburide was started. These notes also indicated that laboratory testing at VA was planned for September 2001. Notes from September 2001 include a finding that laboratory tests showed a glucose of 134. Notes from November 2002 include an assessment of diabetes mellitus. Notes from November 2002 document a history of diabetes for about three years and that he was followed by Dr. S. These notes tend to show that, even by the Veteran's report, his diabetes had onset in November 1999. He was separated from active service in January 1997, some one year and ten months earlier than he reported having a history of diabetes. Even by his own account he did not have diabetes during service or within the one year presumptive period, providing highly probative factual evidence against his own claim. Other than the Veteran's statement made after he filed his claim, there is no evidence that diabetes mellitus manifested to a compensable degree within one year of separation from active service. As between that statement and the earlier statement, from November 2002, the Board assigns greater probative weight to the November 2002 statement. This is because there is no reasonably discernable motivation for providing other than an accurate history in the clinical setting, and, indeed, he would have a motivation to provide an accurate history as such could reasonably affect his health. Further, these early statements are consistent with his service treatment records, which fail to note the disability at issue. His later statements are more likely to be tainted by a motivation to fit manifestation of diabetes to a time frame that would aid in securing VA compensation benefits. Moreover, while the Board does not doubt the sincerity of the Veteran's current belief, the evidence contains some inconsistencies that diminish the reliability of the Veteran's current recollections. Based on the Veteran's conflicting statements, the Board finds that the Veteran is not credible to the extent that he reports the onset of his disability. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." In October 2009, the Veteran underwent a VA examination with regard to his diabetes mellitus. The examiner indicated that he had reviewed the Veteran's claims file. The examiner stated that the September 1991 blood sugar result of 110 was normal, that diabetes mellitus is diagnosed when the blood sugar is 126, and that therefore his opinion was that the Veteran did not have diabetes during active service. He also stated that the Veteran was eventually diagnosed with diabetes mellitus in 2002. As between the Veteran's statement that his laboratory result during service shows that he had diabetes and the VA examiner's report, the Board places greater probative value on the examiner's report because the examiner explained his opinion and the examiner, by training and education, has greater knowledge than the Veteran as to what laboratory results are indicative of diabetes. The Board is aware that notes from 2001 mentioned diabetes and is also aware that it is well documented in the claims file what tests were performed by VA and when assessments were entered. The examiner has stated that the Veteran was diagnosed with diabetes mellitus in 2002 and even a very liberal reading of the record does not show a diagnosis prior to 2001. Moreover, even if the Board considers the Veteran statement from November 2002 as accurate, his diabetes mellitus did not manifest within one year of separation from active service. Based on the above, the preponderance of the evidence is against the Veteran's claim. Treatment notes, the more probative historical statement of the Veteran, the VA examination report, and the Veteran's service treatment records all are evidence unfavorable to the claim. On the other side is the Veteran's later statement that he had diabetes within one year of separation from service and that his laboratory readings during service showed diabetes (which the medical expert indicated is not accurate). The preponderance of the evidence is unfavorable to a grant of service connection for diabetes mellitus. Hence, the appeal must be denied. The evidence is not so evenly balanced so as to allow application of the benefit-of- the- doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service- connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Most of the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2004. In that letter the RO informed the Veteran of what evidence was required to substantiate the claim for service connection for diabetes mellitus and of the Veteran's and VA's respective duties for obtaining evidence. In a July 2006 letter, the RO provided the Veteran notice as to how VA assigns disability ratings and effective dates in the event that service connection is established. Though that letter was sent after the initial adjudication by the RO no prejudice can result to the Veteran because of the timing of the letter because, as service connection is not established for diabetes mellitus, neither an effective date nor a disability rating will be assigned. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and afforded the Veteran an adequate examination (including a relevant opinion supported by rationale) in October 2009. The Board is aware of the Veteran's identification of a Dr. "J.E.S." as providing treatment for diabetes mellitus between 1997 and 2000. In April 2006, and again in July 2006, the RO sent a letter to Dr. J.E.S. requesting that he provide treatment records to VA. The RO informed the Veteran in July 2006 that it had made a second request for this evidence and informed him that it was ultimately his responsibility to see that the evidence was received by VA. VA did not receive a reply from Dr. J.E.S. In a letter received July 2009 the Veteran informed VA that he wanted VA to disregard his information pertaining to Dr. J.E.S. Based on the RO's efforts and the Veteran's response, VA has no further duty to obtain evidence from Dr. J.E.S. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal as to service connection for diabetes mellitus is denied. REMAND The Veteran claims that he suffers from PTSD as the result of service aboard the U.S.S. Raleigh. He stated in his March 2004 PTSD Questionnaire, that he handled dead bodies and escorted wounded Iranian Revolutionaries onboard the U.S.S. Raleigh in August 1987. Service personnel records show that the Veteran had duty aboard the U.S.S. Raleigh apparently beginning in September 1987. He has submitted newspaper articles which document that show that U.S. forces attacked an Iranian ship laying mines on September 21, 1987and that at least six Iranian crewman survived and were picked up by a U.S. patrol boat. Two of those persons died and another was said to have serious injuries. He has also submitted a photograph of a person who he identified as himself alongside two objects he identified as mines aboard a ship. Additionally, he submitted a photograph of a ship and text about the U.S.S. Raleigh and photographs of persons receiving medical attention. Of record are treatment records from a Vet Center dated between 2004 and 2006. These include a report from the Veteran that he was exposed to friendly or hostile fire "Iran/Iraq/terrorist." In those records are a social worker's assessments that the Veteran has PTSD. In a July 2009 letter, the Veteran stated that a VA psychiatrist diagnosed him with PTSD in July 2009. There are no VA treatment records from 2009 associated with the claims file. As these records are relevant to his claim, the records must be associated with the claims file and considered by the RO/AMC prior to the Board deciding his appeal. In a letter received in February 2010, the Veteran stated as follows: "Other incidents that I incurred, were the killing of my friend, Porter, in Norfolk, VA, beach, on or about 1988 and 1989, and observed a comrade attempted to take his life, aboard the USS Raleigh, LPD1 off shore Iraq waters, during Desert Shield." On remand, the RO should send the Veteran a letter asking him to provide more specific information as to the person he states was killed in 1988 or 1989 and the person who he states he observed attempted suicide aboard the USS Raleigh. This claim for service connection for PTSD is potentially subject to the revision to 38 C.F.R. § 3.304 effective July 13, 2010. That revision, in pertinent part, provides as follows: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2009 & 75 Fed. Reg. 39843 (July 13, 2010)). The Veteran's claimed stressor related to the Iranian incident of 1987, arguably, falls into this category. The Veteran has provided evidence of the event, has presented evidence of a current disability, and there is an indication of an association between the event and the claimed disability. Therefore, VA has a duty to afford him an examination and obtain a medical opinion. 38 U.S.C.A. § 5103A. This must be accomplished on remand. Depending on the evidence obtained with regard to the other events that he has mentioned, the death of a friend and witnessing a suicide, the opinion may need to encompass findings related to those events. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records not already associated with the claims file and associate all such obtained records with the claims file. In particular, ensure that records of mental health treatment from the Corpus Christi VA facility are obtained and associated with the claims file. 2. Send a letter to the Veteran requesting that he provide additional details, including the names, dates, and places, and any corroborating evidence of the events and his observation of the events that he described in his VA Form 21-4138 received in February 2010; i.e., the killing of his best friend and the attempted suicide. 3. Then, conduct additional development consistent with regulation and VA practice to verify the apparently alleged stressors of the Veteran's friend's death and the attempted suicide. If these stressors are verified, inform the examiner (addressed below) that the events are verified and instruct the examiner to render the opinion requested in subsection (c) below. If the stressors are not verified instruct the examiner that the only stressor he or she is to consider is the one related to the injured or dead Iranians described by the Veteran. 4. Ensure that the Veteran is scheduled for an examination by a VA psychiatrist or psychologist or a psychiatrist or psychologist with whom VA has contracted, to determine whether the Veteran has PTSD or any other psychiatric disease, and, if so, the etiology of his PTSD or other diagnosed psychiatric disease. The claims file must be made available to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must indicate in his or her report whether the claims file was reviewed. The examiner must provide a rationale for all opinions rendered. The examiner is asked to complete the following: (a) Identify any and all psychiatric illnesses suffered by the Veteran. (b) If the Veteran has PTSD, provide an opinion as to whether it is as likely as not (a 50 percent or greater probability) that the incident involving injured or dead Iranians, described by the Veteran, is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to this claimed stressor. In this regard, it is important that the examiner be aware of the fact that the Veteran is sometimes not an actuate historian (see above). (c) If the RO/AMC has verified that the occurrence of the killing of the Veteran's friend on a beach and/or that the Veteran observed a comrade attempting to commit suicide aboard the U.S.S. Raleigh, provide an opinion as to whether it is as likely as not (a 50 percent or greater probability) that the Veteran has PTSD as the result of either incident. (d) If the examiner diagnoses the Veteran has suffering from a psychiatric disease other than PTSD, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disease had onset during the Veteran's active service or was caused by his active service. 5. Then readjudicate the issue on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs