Citation Nr: 1036613	
Decision Date: 09/28/10    Archive Date: 10/05/10

DOCKET NO.  07-00 346A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30 percent 
for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for diabetes mellitus (DM), 
to include as secondary to in-service herbicide exposure.

3.  Entitlement to service connection for hypertension, to 
include as secondary to diabetes mellitus.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Hannan, Counsel

INTRODUCTION

The Veteran appellant served on active duty in the United States 
Air Force from March 1965 to January 1969, including a one-year 
tour of duty in Vietnam; he was awarded the Distinguished Flying 
Cross and three Air Medals.  Thereafter, he was a member of the 
Air Force Reserve from January 1969 to March 1971.  This was 
followed by his re-entry into active duty; he served on active 
duty from May 1971 until August 1993, when he retired. 

This case comes before the Board of Veterans' Appeals (Board) on 
appeal from a February 2006 rating decision issued by the above 
Regional Office (RO) of the Department of Veterans Affairs (VA) 
which, in part, denied the appellant's claim of entitlement to 
service connection for diabetes mellitus, as well as his claim 
for hypertension secondary to diabetes mellitus.  

The Veteran is also appealing a May 2006 RO rating decision in 
which his claim for service connection for posttraumatic stress 
disorder was granted and an evaluation of 30 percent was 
assigned, effective from the date of the claim.  The Veteran 
appealed the initial evaluation that was assigned for the PTSD 
disability.  He is, in effect, asking for a higher rating 
effective from the date service connection was granted (March 15, 
2006).  See Fenderson v. West, 12 Vet. App. 119 (1999).

The issue of entitlement to service connection for hypertension, 
to include as secondary to diabetes mellitus, is herein REMANDED 
to the RO via the Appeals Management Center (AMC), in Washington, 
DC.  VA will notify the appellant when further action is 
required.


FINDINGS OF FACT

1.  Throughout the rating period on appeal, the Veteran's PTSD 
has been manifested by symptoms including nervousness and a lack 
of trust, selective social isolation, difficulty sleeping, 
nightmares, depression, intermittent anxiety, problems with his 
temper, intrusive thoughts, hypervigilance and exaggerated 
startle response.  The PTSD has been productive of occupational 
and social impairment with occasional decrease in work efficiency 
and intermittent periods of inability to perform occupational 
tasks, but not reduced reliability and productivity.

2.  There is no evidence of record to demonstrate that the 
appellant has received any treatment or medication for his PTSD 
disability since March 2006.

3.  Since March 2006, the Veteran's clinical Global Assessment of 
Functioning scores have ranged from 50 to 60.

4.  Service personnel records reflect that the Veteran served on 
the ground in the Republic of Vietnam during his first period of 
active service from March 1965 to January 1969.

5.  It is at least as likely as not that the Veteran has diabetes 
mellitus (DM) type 2 which is attributable to his active military 
service.



CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 30 
percent for PTSD have not been met at any time.  38 U.S.C.A. 
§§ 1155, 5103(a), 5103A (West 2002 & Supp. 2010); 38 C.F.R. 
§§ 4.1, 4.7, 4.22, 4.114, Diagnostic Code (DC) 9411 (2010); 
Fenderson v. West, 12 Vet. App. 119 (1999).

2.  With resolution of reasonable doubt in the appellant's favor, 
the criteria for service connection for diabetes mellitus type 2, 
to include as due to Agent Orange exposure, have been met.  
38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(a) (West 2002 & Supp. 
2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant contends that he is entitled to an evaluation in 
excess of 30 percent for his PTSD disability because his symptoms 
are commensurate with those associated with a 50 percent 
evaluation.  He also contends that he is entitled to service 
connection for DM, to include as based on his exposure to 
herbicides during his active duty in Vietnam.

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's 
duty to notify and assist claimants in substantiating their 
claims for VA benefits, as codified in pertinent part at 38 
U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 
C.F.R. §§ 3.102, 3.159, 3.326(a) (2010).

Given the fully favorable decision on the matter of service 
connection for DM contained herein, the Board finds that any 
defect in the notice or assistance provided to the Veteran in 
relation to that issue constitutes harmless error.

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and his 
representative 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, in 
accordance with 38 C.F.R. § 3.159(b)(1) (2009).  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).  In 
addition, the decision of the United States Court of Appeals for 
Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 
473 (2006), requires more extensive notice in claims for 
compensation, e.g., as to potential downstream issues such as 
disability rating and effective date.  

In a claim for increase, the VCAA requirement is generic notice, 
that is, the type of evidence needed to substantiate the claim, 
namely, evidence demonstrating a worsening or increase in 
severity of the disability and the effect that worsening has on 
employment, as well as general notice regarding how disability 
ratings and effective dates are assigned.  Vazquez-Flores v. 
Shinseki, 580 F.3d 1270 (2009).

The appellant's PTSD claim arises from his disagreement with the 
initial evaluation assigned for that disability following the 
grant of service connection.  The United States Court of Appeals 
for Veterans Claims (Court), quoting from the legislative history 
of the VCAA, has held that, in cases where service connection has 
been granted and an initial disability rating and effective date 
have been assigned, the typical service-connection claim has been 
more than substantiated - it has been proven, thereby rendering 
notice under 38 U.S.C.A. § 5103(a) notice no longer required 
because the purpose that the notice is intended to serve has been 
fulfilled.  Dingess v. Nicholson, supra, at 491.

In addition, to whatever extent the decision of the Court in 
Dingess, supra, requires more extensive notice in claims for 
compensation, e.g., as to potential downstream issues such as 
disability rating and effective date, VA letters dated in April 
2006, may 2006, and October 2006, contained the information 
required by Dingess.

The appellant has had ample opportunity to respond/supplement the 
record and he has not alleged that notice in this case was less 
than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 
(2008) (holding that "where a claim has been substantiated after 
the enactment of the VCAA, the appellant bears the burden of 
demonstrating any prejudice from defective VCAA notice with 
respect to the downstream issues").  The United States Supreme 
Court has held that an error in VCAA notice should not be 
presumed prejudicial, and that the burden of showing harmful 
error rests with the party raising the issue, to be determined on 
a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 
(2009).  In this case, neither the Veteran nor his representative 
has alleged any prejudicial or harmful error in VCAA notice, and 
the Board finds, based the factors discussed above, that no 
prejudicial or harmful error in VCAA notice has been demonstrated 
in this case.

VA must also make reasonable efforts to assist the claimant in 
obtaining evidence necessary to substantiate the claim for the 
benefit sought, unless no reasonable possibility exists that such 
assistance would aid in substantiating the claim.  38 U.S.C.A. 
§ 5103A(a); 38 C.F.R. § 3.159(c), (d).  Here, the appellant's 
service treatment records (STRs), dated between 1965 and 1993, 
have been associated with the claims file.  In addition, his VA 
treatment records, dated between 2006 and 2009, and his retired 
military treatment records dated between 1993 and 2001, have been 
associated with the claims file.  Private records are also in 
evidence.

The Veteran was afforded VA PTSD examinations in April 2006, and 
August 2009.  A medical opinion is adequate when it is based upon 
consideration of the appellant's prior medical history and 
examinations and also describes the disability in sufficient 
detail so that the Board's "evaluation of the claimed disability 
will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 
303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 
(1991)).  Both VA PTSD examinations were conducted by health care 
professionals, and the associated reports reflect review of the 
appellant's claims file.  The examinations included reports of 
the history and symptoms of the appellant's PTSD-related problems 
and demonstrated objective evaluation.  The examiners were able 
to assess and record the condition of the appellant's PTSD 
symptomatology.  The Board finds that the examination reports are 
sufficiently detailed with recorded history and clinical 
findings, opinions and supporting rationale to be adequate for 
rating purposes.  In addition, it is not shown that either 
examination was in any way incorrectly prepared or that either VA 
examiner failed to address the clinical significance of the 
appellant's psychiatric disability.  The Board finds that the 
examination reports are sufficiently detailed with recorded 
history, impact on employment and daily life, and clinical 
findings.  Therefore, the Board concludes that the Veteran was 
afforded adequate examinations.  Nieves-Rodriguez v. Peake, 22 
Vet. App. 295 (2008).  As a result, the Board finds that 
additional development by way of another examination would be 
redundant and unnecessary.  See 38 C.F.R. § 3.326 and 38 C.F.R. 
§ 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991).

The appellant was informed about the kind of evidence that was 
required and the kinds of assistance VA would provide and he was 
supplied with the text of 38 C.F.R. § 3.159.  He did not provide 
any information to VA concerning available relevant treatment 
records that he wanted the RO to obtain for him that were not 
obtained.  He had previously been given more than one year in 
which to submit evidence after the RO gave him notification of 
his rights under the pertinent statute and regulations.  Thus, it 
appears that all obtainable evidence identified by the Veteran 
relative to his claim has been obtained and associated with the 
claims file.  

Therefore, there is no duty to assist that was unmet, and the 
Board finds no prejudice to the Veteran in proceeding with the 
issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 
384, 394 (1993) (where the Board addresses a question that has 
not been addressed by the agency of original jurisdiction, the 
Board must consider whether the veteran has been prejudiced 
thereby).  Hence, no further notice or assistance to the 
appellant is required to fulfill VA's duty to assist the 
appellant in the development of the claim.  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).  Therefore, the 
Board turns to the merits of the claims.

II.  Merits of the Claims

In adjudicating a claim, the Board determines whether (1) the 
weight of the evidence supports the claim or, (2) whether the 
weight of the "positive" evidence in favor of the claim is in 
relative balance with the weight of the "negative" evidence 
against the claim.  The appellant prevails in either event.  
However, if the weight of the evidence is against the appellant's 
claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A.  Increased initial rating for PTSD

The law provides that disability evaluations are determined by 
the application of a schedule of ratings that is based upon an 
average impairment of earning capacity.  38 U.S.C.A. § 1155; 
38 C.F.R. § 4.1.  Separate diagnostic codes identify the various 
disabilities.  Where there is a reasonable doubt as to the degree 
of disability, such doubt will be resolved in favor of the 
claimant.  38 C.F.R. §§ 3.102, 4.3, 4.7.  In addition, the Board 
will consider the potential application of the various other 
provisions of 38 C.F.R., Parts 3 and 4, whether they were raised 
by the appellant or not, as well as the entire history of the 
Veteran's disability in reaching its decision, as required by 
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

In the evaluation of service-connected disabilities, the entire 
recorded history, including medical and industrial history, is 
considered so that a report of a rating examination, and the 
evidence as a whole, may yield a current rating which accurately 
reflects all elements of disability, including the effects on 
ordinary activity.  38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41.  In this 
case the evidence reviewed includes the reports of the VA PTSD 
examinations conducted in April 2006, and August 2009; the 
reports of VA medical treatment dated between March 2006 and 
December 2009; the report of a private psychiatric evaluation 
conducted in April 2006; and various written statements submitted 
by the Veteran and his representative.

While a veteran's entire history is reviewed when assigning a 
disability evaluation, 38 C.F.R. § 4.1, where service connection 
has already been established and an increase in the disability 
rating is at issue, it is the present level of disability that is 
of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).  
In determining the present level of a disability for any 
increased evaluation claim, the Board must consider the 
application of staged ratings.  See Hart v. Mansfield, 21 Vet. 
App. 505 (2007).  In other words, where the evidence contains 
factual findings that demonstrate distinct time periods in which 
the service-connected disability exhibited diverse symptoms 
meeting the criteria for different ratings during the course of 
the appeal, the assignment of staged ratings would be necessary.

Where there is a question as to which of two disability 
evaluations shall be applied, the higher evaluation will be 
assigned if the disability picture more nearly approximates the 
criteria required for that rating.  Otherwise, the lower rating 
will be assigned.  38 C.F.R. § 4.7.

Review of the appellant's VA medical treatment records dated 
between 2006 and 2009 does not reveal any treatment for PTSD.  
Likewise, his retired military treatment records, dated between 
1993 and 2001, contain no mention of any treatment for PTSD.  In 
addition, there is no indication that he was ever prescribed 
medication for PTSD.

The appellant underwent a private psychiatric evaluation in April 
2006.  He complained of having trouble sleeping and of 
nightmares.  The appellant said that he woke up several times a 
night and that half of the time he would awake all frightened.  
His wife stated that the appellant would check and triple-check 
the doors and windows; that he had very few friends; that he had 
increased temper problems and would get quite angry at times; and 
that he was quite jumpy with loud noises.  The appellant himself 
complained of nervousness and a lack of trust.  The examiner 
noted that the appellant's appearance and hygiene were 
appropriate.  On mental status examination, the appellant was 
alert and oriented times four.  His behavior was somewhat 
withdrawn and his mood was subdued.  The appellant was able to 
communicate effectively and his speech was normal in rate and 
volume.  The examiner stated that the appellant had no difficulty 
with concentration; no history of, or evidence of, delusions, 
hallucinations, illusions, suicidal ideation, homicidal ideation 
or obsessional rituals; no impairment of judgment or abstract 
thinking; and intact recent and remote memory.  No panic attacks 
were noted or described by the appellant.  The appellant's 
thought processes were intact and goal-oriented. The psychiatrist 
rendered an Axis I diagnosis of PTSD and assigned a GAF score of 
50 on Axis V for both the current and past year period. 

The appellant underwent a VA PTSD examination in April 2006; the 
examiner reviewed the claims file.  The examiner described the 
Veteran as being neatly groomed and dressed.  He complained of 
recurrent intrusive thoughts and nightmares; exaggerated startle 
response; hypervigilance; selective social isolation and 
withdrawal; intermittent anxiety and insomnia; intermittent 
feelings of hopelessness, helplessness and despair; and worsening 
of symptoms due to the recent Iraq war.  He reported having 
difficulty falling asleep and waking frequently due to 
nightmares.  He also said that he slept with a weapon in his 
nightstand and that he heard and responded to every sound.  The 
examiner noted that the appellant was not getting any treatment 
and that he had never received any psychiatric treatment.  The 
appellant reported that he was employed as a teacher and that he 
and his wife had been married for 36 years; he said that the 
marriage was good and that his wife was supportive.  On mental 
status examination, the appellant was alert and oriented times 
four.  He had logical, coherent and relevant speech.  His affect 
was somewhat constricted.  The appellant denied, and there was no 
evidence of, hallucinations; delusions; suicidal ideation; or 
homicidal ideation.  The appellant's immediate, recent and remote 
memory functions were intact.  The appellant's insight, ability 
to abstract, judgment and reality testing were all within normal 
limits.  The appellant exhibited no inappropriate ritualistic or 
obsessive behaviors.  The examiner rendered an Axis I diagnosis 
of PTSD and assigned a current GAF score of 50 on Axis V.

At another VA PTSD examination in August 2009; the examiner 
reviewed the claims file and noted that the Veteran was not 
currently in receipt of any psychiatric treatment.  His wife 
stated that he got emotional and cried a lot.  She said that his 
memory and concentration were poor and that he forgot a lot.  She 
further reported that the appellant was very talkative; that he 
had trouble focusing; that he isolated at times; that he 
frequently got upset; that she thought that he was depressed 
every day; that he did not sleep well at night; that he would 
have violent nightmares and wake up to check the door and locks; 
that his appetite and interest were fine; that his energy was 
good when he exercised; and that he had mild anxiety during 
stressful situations.  The appellant reported that he had stopped 
working in 2007, when he retired; the examiner noted that the 
retirement was not due to the PTSD.  The appellant also reported 
being married for 39 years, and having a good relationship with 
his wife.  He stated that he got along well with others.  The 
appellant denied suicidal ideation, homicidal ideation, history 
of suicide attempts and history of violence or assaultiveness.  
On mental status examination, the appellant was oriented times 
three and exhibited a depressed mood.  His thought processes and 
content were unremarkable.  There were no delusions, 
hallucinations, inappropriate behaviors, or obsessive or 
ritualistic behaviors.  He had good impulse control.  The 
examiner described the appellant as cooperative, friendly, 
relaxed and attentive.  The examiner indicated that the 
appellant's remote memory was normal and that his recent memory 
and his immediate memory were mildly impaired.  The examiner also 
indicated that the appellant occasionally had mild anxiety 
problems and that he had no problems with his activities of daily 
living.  The examiner noted that the appellant still had mild 
symptoms of PTSD and that, on some days, he had no symptoms.  The 
examiner rendered a diagnosis of PTSD and assigned a GAF score of 
60 on Axis V.  The examiner stated that the appellant had some 
cognitive problems that were not related to PTSD, that he had no 
reduced reliability or productivity due to PTSD and that his PTSD 
symptoms were not severe enough to interfere with his 
occupational or social functioning.  The examiner concluded that 
the PTSD had not gotten worse.

When evaluating a mental disorder, the rating agency shall 
consider the frequency, severity, and duration of psychiatric 
symptoms, length of remissions, and the veteran's capacity for 
adjustment during periods of remission.  38 C.F.R. § 4.126(a).  
The rating agency shall assign an evaluation based on all the 
evidence of record that bears on occupational and social 
impairment rather than solely on the examiner's assessment of the 
level of disability at the moment of the examination.  Id.  
However, when evaluating the level of disability from a mental 
disorder, the rating agency will consider the extent of social 
impairment, but shall not assign an evaluation on the basis of 
social impairment.  38 C.F.R. § 4.126(b).

The current regulations state that, under the General Rating 
Formula for Mental Disorders, a 30 percent evaluation will be 
assigned for occupational and social impairment with occasional 
decrease in work efficiency and intermittent periods of inability 
to perform occupational tasks (although generally functioning 
satisfactorily, with routine behavior, self-care, and 
conversation normal), due to such symptoms as: depressed mood, 
anxiety, suspiciousness, panic attacks (weekly or less often), 
chronic sleep impairment, mild memory loss (such as forgetting 
names, directions, recent events).

A 50 percent rating is assigned for occupational and social 
impairment with reduced reliability and productivity due to such 
symptoms as: flattened affect; circumstantial, circumlocutory, or 
stereotyped speech; panic attacks more than once a week; 
difficulty in understanding complex commands; impairment of 
short- and long-term memory (e.g., retention of only highly 
learned material, forgetting to complete tasks); impaired 
judgment; impaired abstract thinking; disturbances of motivation 
and mood; difficulty in establishing and maintaining effective 
work and social relationships.

A 70 percent rating is assigned for occupational and social 
impairment, with deficiencies in most areas, such as work, 
school, family relations, judgment, thinking, or mood, due to 
such symptoms as: suicidal ideation; obsessional rituals which 
interfere with routine activities; speech intermittently 
illogical, obscure, or irrelevant; near-continuous panic or 
depression affecting the ability to function independently, 
appropriately and effectively; impaired impulse control (such as 
unprovoked irritability with periods of violence); spatial 
disorientation; neglect of personal appearance and hygiene; 
difficulty in adapting to stressful circumstances (including work 
or a worklike setting); inability to establish and maintain 
effective relationships.

A total occupational and social impairment, due to such symptoms 
as gross impairment in thought processes or communication; 
persistent delusions or hallucinations; grossly inappropriate 
behavior; persistent danger of hurting self or others; 
intermittent inability to perform activities of daily living 
(including maintenance of minimal personal hygiene); 
disorientation to time or place; memory loss for names of close 
relatives, own occupation, or own name, will be rated as 
100 percent disabling.

Under 38 C.F.R. § 4.130, the nomenclature employed in this 
portion of the rating schedule is based upon the DIAGNOSTIC AND 
STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, of the 
American Psychiatric Association (DSM-IV).  As indicated in 
Carpenter v. Brown, 8 Vet. App. 240, 242 (1995), the GAF is a 
scale reflecting the psychological, social and occupational 
functioning on a hypothetical continuum of mental health-illness 
and a 51-60 rating indicates moderate difficulty in social, 
occupational or school functioning.  The DSM-IV describes a GAF 
score of 51 to 60 as reflecting a moderate level of impairment, 
e.g., flattened affect, circumstantial speech, occasional panic 
attacks, or moderate difficulty in social, occupational or school 
functioning, e.g., having few friends or having conflicts with 
peers or co-workers.  See 38 C.F.R. § 4.130.  See also, Cathell 
v. Brown, 8 Vet. App. 539 (1996); and Richard v. Brown, 9 Vet. 
App. 266, 267 (1996), wherein the Court stated that a "GAF of 50 
is defined as 'Serious symptoms (e.g., suicidal ideation, severe 
obsessional rituals, frequent shoplifting) OR any serious 
impairment in social, occupational, or school functioning (e.g., 
no friends, unable to keep a job).'"  Between March 2006 and 
August 2009, the appellant's GAF score ranged from 50 to 60.

Based on a review of the evidence of record, lay and clinical, 
the Veteran is not entitled to an initial evaluation in excess of 
30 percent.  There is no evidence of any suicidal ideation and 
the appellant was able to work until he retired in 2007, for 
reasons unrelated to the PTSD disability.  There is no evidence 
that his reported short-term memory loss involves retention of 
only highly learned material and forgetting to complete tasks.  
The appellant's symptomatology does not reflect any past or 
current homicidal ideation; speech intermittently illogical, 
obscure, or irrelevant; near-continuous panic or depression 
affecting the ability to function independently, appropriately 
and effectively; impaired impulse control (such as unprovoked 
irritability with periods of violence); spatial disorientation; 
or neglect of personal appearance and hygiene. 

Moreover, the evidence of record reveals no impairment of the 
thought process or communication.  The appellant has not 
exhibited any inappropriate behavior, and has been able to 
maintain his personal hygiene and other activities of daily 
living.  He has never been noted to be other than alert and 
oriented.  While he has had some difficulty in adapting to 
stressful circumstances and problems maintaining effective 
relationships, the Board finds that an initial evaluation in 
excess of 30 percent is not warranted.  The evidence of record 
does not establish that he has demonstrated such symptoms as: 
circumstantial, circumlocutory, or stereotyped speech; panic 
attacks more than once a week; difficulty in understanding 
complex commands; impairment of short- and long-term memory 
(e.g., retention of only highly learned material, forgetting to 
complete tasks); impaired judgment; or impaired abstract 
thinking.  

While the appellant has evidenced some disturbances of motivation 
and mood and some difficulty in establishing and maintaining 
effective work and social relationships, the evidence of record 
shows that he has maintained his marital relationship over 
decades, and that he has appeared for medical treatment without 
any serious psychiatric complaints.  The evidence of record does 
not demonstrate that he exhibited any memory loss that was more 
than mild, any loss of impulse control or any diminished 
judgment.  In fact, testing for recent and remote recall and for 
concentration (e.g., serial 7s) on private and VA examination did 
not reveal any significant deficiencies.  The evidence of record 
did demonstrate that the appellant experienced such symptoms as 
nightmares, hypervigilance and recurring memories and that he did 
demonstrate some disturbances of motivation and mood and 
difficulty in establishing and maintaining effective social 
relationships.  However, as previously noted, when evaluating the 
level of disability from a mental disorder, an evaluation is not 
to be assigned solely on the basis of social impairment.  
38 C.F.R. § 4.126(b).

Furthermore, the report of the VA psychiatric examinations of 
record and the private psychiatric evaluation report contained no 
evidence that the Veteran's symptoms were ever so incapacitating 
as to result in total occupational and social impairment.  Nor 
has the Veteran himself reported such incapacitation.  While the 
evidence does indicate that he has demonstrated some symptoms 
contemplated by the criteria for a50 percent rating evaluation, 
such as disturbances of motivation and mood and difficulty in 
establishing and maintaining social relationships, these symptoms 
were noted to not affect his job functioning.  

Moreover, there is no indication the Veteran ever had any 
suicidal or homicidal ideation.  He has never reported any 
instance of violence towards others, and no instances toward 
animals.  He has never presented with anger or rage during 
treatment visits.  At all times, the Veteran has been found to be 
oriented in all tested spheres and capable of expressing himself 
in a coherent and logical manner and he has retained good 
communication skills.  Despite some significant psychiatric 
symptoms, the Veteran's speech and behavior have essentially been 
appropriate.  In addition, while the appellant has reported 
social isolation, he has been able to have a good relationship 
with his longtime wife and to maintain his personal hygiene and 
other activities of daily living.  Therefore an evaluation in 
excess of  30 percent evaluation is not warranted under the 
applicable rating criteria.

Notwithstanding the above discussion, a rating in excess of the 
assigned 30 percent schedular evaluation for the Veteran's 
service-connected PTSD disability may be granted when it is 
demonstrated that the particular disability presents such an 
exceptional or unusual disability picture with such related 
factors as marked interference with employment or frequent 
periods of hospitalization as to render impractical the 
application of the regular schedular standards.  See 38 C.F.R. 
§ 3.321(b)(1).  See Barringer v. Peake, 22 Vet. App. 242 (2008).

The Board finds no evidence that the Veteran's service-connected 
PTSD disability addressed above has presented such an unusual or 
exceptional disability picture at any time as to require 
consideration of an extraschedular evaluation pursuant to the 
provisions of 38 C.F.R. § 3.321(b).  The schedular rating 
criteria are designed to compensate for average impairments in 
earning capacity resulting from service-connected disability in 
civil occupations.  38 U.S.C.A. § 1155.  "Generally, the degrees 
of disability specified [in the Rating Schedule] are considered 
adequate to compensate for considerable loss of working time from 
exacerbations or illnesses proportionate to the severity of the 
several grades of disability."  38 C.F.R. § 4.1.

The Board finds that there is no evidence that the schedular 
evaluation in this case (30 percent) is inadequate.  As discussed 
above, there are higher ratings for the Veteran's PTSD 
disability, but the required manifestations have not been shown 
in this case.  The Board further finds that no evidence has been 
presented suggesting an exceptional disability picture in this 
case.  The Veteran has not required any hospitalization or 
extended treatment for his service-connected PTSD disability, and 
he has not demonstrated marked interference with his capacity for 
employment due to such disability.  There is no objective 
evidence of any symptoms due to the service-connected PTSD 
disability that are not contemplated by the pertinent rating 
criteria.  Consequently, the Board concludes that referral of 
this case for consideration of the assignment of an 
extraschedular rating is not warranted.  See Floyd v. Brown, 8 
Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-
339 (1996).  (When evaluating an rating claim, it is well 
established that the Board may affirm an RO's conclusion that a 
claim does not meet the criteria for submission for an 
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may 
reach such a conclusion on its own.)

Furthermore, although the Veteran experiences occupational 
impairment, there is no indication in the record that the average 
industrial impairment from the PTSD disability addressed herein 
would be in excess of that contemplated by the currently assigned 
rating.  The Court has held that, "if the criteria reasonably 
describe the claimant's disability level and symptomatology, then 
the claimant's disability picture is contemplated by the rating 
schedule, the assigned schedular evaluation is, therefore, 
adequate, and no referral is required."  Thun v. Peake, 22 Vet. 
App. 111, 115 (2008).  

In this case, the various symptoms described by the Veteran fit 
squarely within the criteria found in the relevant diagnostic 
code for the PTSD disability on appeal.  The rating criteria 
contemplate not only his symptoms but the severity of his PTSD 
disability. For these reasons, referral for extraschedular 
consideration is not warranted for the PTSD disability.

The Board acknowledges that the Veteran, in advancing this 
appeal, believes that the PTSD disability has been more severe 
than the initially assigned disability rating reflects.  There 
are no clinical findings congruent with the next higher (50%) 
evaluation.  Medical evidence is generally required to 
probatively address questions requiring medical expertise; lay 
assertions do not constitute competent medical evidence for these 
purposes.  Espiritu v. Derwinski, supra.  However, lay assertions 
may serve to support a claim by supporting the occurrence of lay-
observable events or the presence of symptoms of disability 
subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. 
§ 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 
2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 
2006) (addressing lay evidence as potentially competent to 
support presence of disability even where not corroborated by 
contemporaneous medical evidence).  See also Davidson v. 
Shinseki, 581 F.3d 1313 (Fed Cir. 2009).

Competency of evidence differs from weight and credibility.  The 
former is a legal concept determining whether testimony may be 
heard and considered by the trier of fact, while the latter is a 
factual determination going to the probative value of the 
evidence to be made after the evidence has been admitted.  Rucker 
v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 
465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 
25 (1991) ("although interest may affect the credibility of 
testimony, it does not affect competency to testify").  In this 
case, the Veteran is competent to report symptoms because this 
requires only personal knowledge as it comes to him through his 
senses.  Layno, 6 Vet. App. at 470.  In fact, the grant of the 30 
percent evaluation is based in large part on the Veteran's 
reports about his PTSD symptomatology.  He is not, however, 
competent to identify a specific level of disability of his PTSD 
disability according to the appropriate diagnostic code.  See 
Robinson v. Shinseki, 557 F.3d 1355 (2009).  The same analysis 
holds true for the statements of the Veteran's spouse.

Such competent evidence concerning the nature and extent of the 
PTSD disability has been provided by the medical personnel who 
have examined the Veteran during the current appeal and who have 
rendered pertinent opinions in conjunction with the evaluations.  
The medical findings (as provided in the examination report, 
treatment plan and therapy notes) directly address the criteria 
under which psychiatric disabilities are evaluated.  

The Board has carefully considered the appellant's contentions 
and arguments; however, the competent medical evidence offering 
detailed descriptions of the PTSD symptoms and specialized 
determinations pertinent to the rating criteria are the most 
probative evidence with regard to evaluating whether an 
evaluation in excess of 30 percent is warranted.  The lay 
statements have been considered together with the probative 
medical evidence clinically evaluating the severity of the PTSD-
related symptoms.  The preponderance of the most probative 
evidence does not support assignment of any higher rating.  The 
findings needed for the next higher evaluation are not currently 
demonstrated.  Since the preponderance of the evidence is against 
an allowance of an initial evaluation in excess of 30 percent for 
PTSD under the schedular criteria, the benefit of the doubt 
doctrine is inapplicable.  38 U.S.C.A. § 5107(b).  See Ortiz v. 
Principi, 274 F.3d 1361 (Fed. Cir. 2001).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that 
a claim for a total disability rating based on individual 
unemployability due to service-connected disability (TDIU) is 
part of an increased rating claim when such claim is raised by 
the record.  The Court further held that when evidence of 
unemployability is submitted at the same time that a veteran is 
appealing the initial rating assigned for a disability, the claim 
for TDIU will be considered part and parcel of the claim for 
benefits for the underlying disability.  Id.  In this case, the 
Veteran has not raised the issue of unemployability and he only 
has a combined disability evaluation of 50 percent.  Neither the 
statements of the Veteran or any third party nor the evidence of 
record reasonably raises the question of whether the Veteran is 
unemployable due to his PTSD disability.  Therefore a claim for a 
total rating based on individual unemployability is not part and 
parcel of the appellant's PTSD increased disability rating claim.  
Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

Finally, based upon the guidance of the Court in Hart v. 
Mansfield, 21 Vet. App. 505 (2007), the Board has considered 
whether any staged rating is appropriate for the PTSD disability.  
As reflected in the decision above, the Board has not found 
enough variation in the Veteran's symptomatology or clinical 
findings for the manifestations of the PTSD disability that would 
warrant the assignment of any staged rating, as the Court has 
indicated can be done in this type of case.  Based upon the 
record, the Board finds that at no time during the 
claim/appellate period has the PTSD disability been more than 30 
percent.

B.  Service connection for diabetes mellitus (DM)

The Veteran is seeking an award of service connection for 
diabetes mellitus, which he claims is due to his exposure to 
herbicide agents in Vietnam.  The appellant served in Vietnam 
during his first period of active service; he was awarded the 
Distinguished Flying Cross and three Air Medals.  As indicated 
above, he is service-connected for PTSD based on stressors 
related to his combat service as a pararescue specialist who 
landed in enemy territory to pick up downed fliers/crewmembers.

To establish service connection for a disability, symptoms during 
service, or within a reasonable time thereafter, must be 
identifiable as manifestations of a chronic disease or permanent 
effects of an injury.  Further, a present disability must exist 
and it must be shown that the present disability is the same 
disease or injury, or the result of disease or injury incurred in 
or made worse by the Veteran's military service.  Rabideau v. 
Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a).  
See McClain v. Nicholson, 21 Vet. App. 319 (2007), holding that 
the presence of a chronic disability at any time during the 
claims process can justify a grant of service connection, even 
where the most recent diagnosis is negative.

Service connection may be granted for a chronic disability 
resulting from a disease or injury incurred in or aggravated by 
active service.  38 U.S.C.A. §§ 1110, 1131.  Certain listed 
diseases, including diabetes mellitus, will be considered to have 
been incurred in service if manifest to a degree of 10 percent or 
more within one year following the date of separation from 
service even though there is no evidence of such disease during 
service.  38 C.F.R. § 3.307.  In addition, service connection may 
be granted for any disease diagnosed after service when all the 
evidence establishes that the disease was incurred in service.  
38 C.F.R. § 3.303(d).

The resolution of an issue of service connection must be 
considered on the basis of the places, types and circumstances of 
a veteran's service as shown by service records, the official 
history of each organization in which the claimant served, his 
medical records and all pertinent medical and lay evidence.  
Determinations relative to service connection will be based on 
review of the entire evidence of record.  38 C.F.R. § 3.303(a).

In addition, service connection can be presumed if a veteran was 
exposed to Agent Orange or other herbicide agents during active 
service.  Presumptive service connection is warranted for the 
following disorders: chloracne or other acneform disease 
consistent with chloracne; type 2 diabetes; Hodgkin's disease; 
multiple myeloma; non-Hodgkin's lymphoma; acute and subacute 
peripheral neuropathy; porphyria cutanea tarda; prostate cancer; 
respiratory cancers (cancer of the lung, bronchus, larynx, or 
trachea), and soft-tissue sarcoma (other than osteosarcoma, 
chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 

Presumptive service connection for these disorders as a result of 
herbicide exposure is warranted if the requirements of 38 C.F.R. 
§ 3.307(a)(6) are met.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).  
The governing law provides that a "veteran who, during active 
military, naval, or air 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 
during such service to an herbicide agent . . . unless there is 
affirmative evidence to establish that the veteran was not 
exposed to any such agent during that service."  38 U.S.C.A. § 
1116(f).

Review of the Veteran's service medical treatment records 
includes no mention of diabetes mellitus or any problem with 
elevated blood sugar during his active service.  The appellant 
underwent a service separation medical examination in April 1993; 
on physical examination, his endocrine system was found to be 
clinically normal.  His fasting blood sugar was 86 mg/dl and his 
urinalysis testing for glucose was also normal (negative) at that 
time.

Review of the appellant's retired military medical treatment 
records, dated between 1993 and 2005, indicates that he carried a 
diagnosis of diabetes as far back as March 2003.  Repeated 
entries dated thereafter list DM as a diagnosis.  For example, an 
October 2004 entry states that the appellant's DM II was diet-
controlled.

Review of the appellant's private medical records, dated between 
2004, indicates that he underwent repeated laboratory testing 
related to DM.  In particular, the evidence of record includes 
multiple instances of elevated Hemoglobin A1C levels.

Review of the appellant's VA medical treatment records, dated 
between 2006 and 2009, indicates that the appellant was noted to 
have a diagnosis of DM.  For example, there is a March 2006 
notation of diet-controlled diabetes.

The Veteran underwent a VA medical examination in August 2009.  
The examining physician reviewed the claims file and noted that 
the appellant's medical records contained a diagnosis of type 2 
diabetes mellitus.  The physician, in his February 2010 addendum, 
stated that the appellant did not have DM based on the results of 
his August 2009 glucose tolerance testing.  However, the examiner 
did not discuss any of the appellant's prior laboratory results 
and did not provide any explanation or rationale for concluding 
that, despite diagnoses of DM in private records, retired 
military record and VA records, he did not have DM as opposed to 
having diet-controlled DM.

Here, the Board finds that the evidence of record is in relative 
equipoise as to whether the Veteran has pre-diabetes or type 2 
diabetes mellitus.  The Board observes that there is conflicting 
medical evidence in the record as to nature of the appellant's 
diabetes, specifically whether it is type 1 or type 2.  Numerous 
private and VA reports show clinical impressions of type 1 
diabetes mellitus, as well as diagnoses of type 2 diabetes 
mellitus.  Attributes of both type 1 and type 2 diabetes mellitus 
are found in the appellant's medical history, and there are 
competent medical opinions on both sides of the question.  Where 
there exists an approximate balance of positive and negative 
evidence regarding the merits of an issue material to the 
determination of the matter, the Veteran shall prevail upon the 
issue.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, supra.  
Thus, the Board finds that it is at least as likely as not that 
the appellant has type 2 diabetes mellitus.

In addition, the Board notes that there is no affirmative 
evidence to rebut the presumption that the appellant's type 2 
diabetes mellitus is attributable to his service in Vietnam.  See 
38 C.F.R. § 3.307(a)(6)(iii); 3.307(d).  Therefore, the Board 
finds that service connection for diabetes mellitus is warranted, 
resolving reasonable doubt in favor of the Veteran. 


ORDER

An initial evaluation in excess of 30 percent for PTSD is denied.

Service connection for type 2 diabetes mellitus is granted.


REMAND

A determination has been made that additional development is 
necessary with respect to the remaining issues on appeal.  
Accordingly, further appellate consideration will be deferred and 
this case is REMANDED to the AMC/RO for action as described 
below.

The Veteran submitted his claim for service connection for 
hypertension in August 2005.  His hypertension claim was denied 
by the RO on a direct basis and on a secondary basis; the claim 
was denied on a secondary basis because the RO had denied service 
connection for DM.  However, service connection for type 2 
diabetes mellitus has now been granted in the decision above.

When a veteran is found not to be entitled to a regulatory 
presumption of service connection for a given disability, the 
claim must nevertheless be reviewed to determine whether service 
connection can be established on a another basis.  See Combee v. 
Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).  Further 
development of the medical evidence relating to secondary service 
connection is necessary, and adjudication on this basis is 
therefore indicated.

Under 38 C.F.R. § 3.310(a), service connection may be established 
on a secondary basis for a disability which is proximately due to 
or the result of service-connected disease or injury.  
Establishing service connection on a secondary basis requires 
evidence sufficient to show (1) that a current disability exists 
and (2) that the current disability was either (a) proximately 
caused by or (b) proximately aggravated by a service-connected 
disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en 
banc).  Where a service-connected disability aggravates a non-
service-connected condition, a veteran may be compensated for the 
degree of disability (but only that degree) over and above the 
degree of disability existing prior to the aggravation.  
Aggravation will be established by determining the baseline level 
of severity of the non-service-connected condition and deducting 
that baseline level, as well as any increase due to the natural 
progress of the disease, from the current level.  38 C.F.R. 
§ 3.310(b).

During the pendency of this claim and appeal, an amendment was 
made to the provisions of 38 C.F.R. § 3.310.  71 Fed. Reg. 
52,744-47 (Sept. 7, 2006).  The amendment sets a standard by 
which a claim based on aggravation of a non-service-connected 
disability by a service-connected one is judged.  Although VA has 
indicated that the purpose of the regulation was merely to apply 
the Court's ruling in Allen, supra, it was made clear in the 
comments to the regulation that the changes were intended to 
place a burden on the claimant to establish a pre-aggravation 
baseline level of disability for the non-service-connected 
disability before an award of secondary service connection may be 
made.  This had not been VA's practice, which suggests that the 
recent change amounts to a substantive change.  The present case 
predates the regulatory change.  Given what appear to be 
substantive changes, the RO's analysis of secondary service 
connection in the present appeal should consider the version of 
38 C.F.R. § 3.310 in effect before the change, which version is 
more favorable to the claimant because it does not require the 
establishment of a baseline before an award of service connection 
may be made.

These considerations require further investigation by medical 
professionals, inasmuch as the Board is prohibited from 
substituting its own unsubstantiated medical opinions.  See 
Colvin v. Derwinski, Vet. App. 171, 175 (1991).  In addition, the 
duty to assist includes obtaining medical records and 
examinations where indicated by the facts and circumstances of an 
individual case.  See Murphy v. Derwinski, 1 Vet. App. 78 (1990).  
The Court has stated that the Board's task is to make findings 
based on evidence of record - not to supply missing facts.  Beaty 
v. Brown, 6 Vet. App. 532 (1994).  Thus, where the record before 
the Board is inadequate to render a fully informed decision, a 
remand to the RO is required in order to fulfill its statutory 
duty to assist the appellant to develop the facts pertinent to 
the claim.  Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).

Therefore, to ensure full compliance with due process 
requirements, this case is REMANDED to the AMC/RO for the 
following:

1.  Assure that all notification and 
development action required by 38 U.S.C.A. 
§§ 5102, 5103, and 5103A, the implementing 
regulations found at 38 C.F.R. § 3.159 and 
any other applicable legal precedent has 
been completed.

2.  Contact the appellant to determine the 
names, addresses, and recent dates of 
treatment by any physicians, hospitals or 
treatment centers (private or government) 
who provided him with relevant evaluation 
or treatment for his hypertension and for 
his service-connected DM.  After obtaining 
the appropriate release forms from the 
appellant, the RO should contact each 
physician, hospital, or treatment center 
specified by the appellant to obtain any 
and all medical or treatment records or 
reports relevant to the hypertension claim, 
including all VA treatment, all retired 
military treatment and all private 
treatment, to the extent not already on 
file.  In particular, the records from the 
Northeast Internal Medicine Associates (Dr. 
Randy Bergman) must be obtained.

3.  All items of correspondence, as well as 
any medical or treatment records obtained, 
should be made a part of the claims file.  
If private treatment is reported and those 
records are not obtained, the appellant and 
his representative should be provided with 
information concerning the negative 
results, and afforded an opportunity to 
obtain the records.

4.  After completing the development 
actions listed above and any other 
indicated development, the AMC/RO should 
arrange for a comprehensive review of the 
appellant's claims file by an appropriate 
VA physician, for example, a cardiologist 
or an endocrinologist, to determine the 
nature and etiology of the appellant's 
hypertension.  

Specifically, the reviewer must address the 
questions of:

	(a) what cardiac pathology does the 
appellant currently have and when was said 
cardiac pathology initially manifested?  In 
particular, discuss his hypertension (HTN).
	(b) whether, based on what is 
medically known about causes or possible 
causes of cardiac pathology, including HTN, 
any signs or symptoms noted in service or 
within one year of service separation (in 
August 1993) were the first manifestations 
of the appellant's current HTN?
	(c) whether, based on what is 
medically known about causes or possible 
causes of cardiac pathology, including HTN, 
any current cardiac pathology was caused by 
the Veteran's diabetes mellitus as opposed 
to some other factor or factors, such as 
dyslipidemia or obesity?  
	(d) whether diabetes mellitus 
aggravated, contributed to, or accelerated 
any existing cardiac or cardiovascular 
pathology, including HTN? and 
	(e) if the appellant's diabetes 
mellitus aggravated, contributed to, or 
accelerated any cardiac or cardiovascular 
pathology, including HTN, to what extent, 
stated in terms of a percentage, did the DM 
so contribute as compared to the natural 
progress of the disease itself or as 
opposed to other possible contributing 
factors?

In assessing the relative likelihood as to 
origin and etiology of the hypertension 
currently present, the reviewer should apply the 
standard of whether it is at least as likely as 
not (i.e., to at least a 50/50 degree of 
probability) that any claimed disorder is 
causally or etiologically related to the 
Veteran's service-connected disability or to 
treatment thereof, or whether such a causal or 
etiological relationship is unlikely (i.e., less 
than a 50/50 probability), with the rationale 
for any such conclusion set out in the report.

Note:  The term "aggravation" in the above 
context refers to a permanent worsening of the 
underlying condition, as contrasted to temporary 
or intermittent flare-ups of symptomatology 
which resolve with return to the baseline level 
of disability.

Note:  As used above, the term "at least 
as likely as not" does not mean merely 
within the realm of medical possibility, 
but rather that the weight of medical 
evidence both for and against a conclusion 
is so evenly divided that it is as 
medically sound to find in favor of 
causation as it is to find against it.

If any opinion and supporting rationale cannot 
be provided without invoking processes relating 
to guesses or judgment based upon mere 
conjecture, the examiner should clearly and 
specifically so specify in the report, and 
explain why this is so.  

In this regard, if the examiner concludes 
that there is insufficient information to 
provide an etiologic opinion without result 
to mere speculation, the examiner should 
state whether the inability to provide a 
definitive opinion was due to a need for 
further information (with said needed 
information identified) or because the 
limits of medical knowledge had been 
exhausted regarding the etiology of the 
Veteran's left hip disorder.  See Jones v. 
Shinseki, 23 Vet. App. 382 (2010).

5.  Upon receipt of the VA reviewer's 
report, the AMC/RO should conduct a review 
to verify that all requested opinions have 
been provided.  If information is deemed 
lacking, the AMC/RO should refer the report 
to the VA reviewer for corrections or 
additions.

6.  If any additional development is 
necessary to re-adjudicate the hypertension 
issue, especially in light of any newly 
received records, that development should 
be done.

7.  Thereafter, the AMC/RO should re-
adjudicate the appellant's claim for 
service connection for hypertension.  The 
readjudication should reflect consideration 
of all the evidence of record and be 
accomplished with application of all 
appropriate legal theories, including 
38 C.F.R. § 3.310(b); Allen v. Brown, 7 
Vet. App. 439 (1995).

8.  If the benefit sought on appeal remains 
denied, the appellant should be provided a 
supplemental statement of the case (SSOC).  
The SSOC must contain notice of all 
relevant actions taken on the claim for 
benefits, 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 matter the Board has remanded.  Kutscherousky v. 
West, 12 Vet. App. 369 (1999).

The appellant is hereby notified that it is the appellant's 
responsibility to report for any scheduled examination and to 
cooperate in the development of the case, and that the 
consequences of failure to report for a VA examination without 
good cause may include denial of the claim.  38 C.F.R. §§ 3.158 
and 3.655.

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate outcome 
of this case.  The appellant need take no action until notified.

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).



___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs