Citation Nr: 1301514 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-05 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to an initial rating in excess of 10 percent for diabetes mellitus with peripheral vascular disease of both lower extremities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to October 1972 and from November 1981 to December 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the claims file is currently held by the RO in Atlanta, Georgia. The December 2008 statement of the case (SOC) included the issue of entitlement to service connection for a heart condition, to include heart attacks. In a June 2011 rating decision, the Veteran was awarded service connection for coronary heart disease (CAD) associated with herbicide exposure. An initial 30 percent evaluation was assigned effective March 23, 2006. The award of service connection constitutes a full grant of the benefits sought on appeal and the claim for entitlement to service connection for a heart condition is not before the Board. In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. During the September 2012 hearing, the Veteran testified that he experienced worsening neurological impairment in the bilateral lower extremities and increased symptoms associated with service-connected CAD. The issues of entitlement to increased ratings for peripheral neuropathy of the lower extremities and an increased rating for CAD have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's claim for service connection for a psychiatric disability, to include PTSD and a mixed personality disorder, was initially denied by the RO in an unappealed May 1991 rating decision. 2. The evidence received since the May 1991 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The Veteran has PTSD due to verified combat stressors. 4. The Veteran's diabetes mellitus is managed by a restricted diet only. 5. Peripheral vascular disease of the right lower extremity manifests calf pain, intermittent claudication with walking, slightly reduced peripheral pulses, and coldness in the extremity. 6. Peripheral vascular disease of the left lower extremity manifests calf pain, intermittent claudication with walking, slightly reduced peripheral pulses, and coldness in the extremity. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. An acquired psychiatric disorder, diagnosed as PTSD, was incurred as a result of active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304(f). 3. The criteria for an initial rating in excess of 10 percent for diabetes mellitus are not met. 38 U.S.C.A. § 1151; 38 C.F.R. § 4.119, Diagnostic Code 7913. 4. The criteria for a separate 20 percent rating, but not higher, for peripheral vascular disease of the right lower extremity are met. 38 U.S.C.A. § 1151; 38 C.F.R. § 4.104, Diagnostic Code 7114. 5. The criteria for a separate 20 percent rating, but not higher, for peripheral vascular disease of the left lower extremity are met. 38 U.S.C.A. § 1151; 38 C.F.R. § 4.104, Diagnostic Code 7114. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran's claim for entitlement to service connection for a psychiatric disorder, diagnosed as PTSD and a mixed personality disorder, was initially denied in an unappealed May 1991 rating decision. The RO found that the record did not establish that the Veteran had been diagnosed with PTSD. The record did establish a diagnosis of a mixed personality disorder, but the RO also found that service connection was not warranted for the personality disorder as there was no evidence of aggravation during service. The Veteran did not appeal the May 1991 denial of the claim and the rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence received since the May 1991 denial of the claim includes the report of an October 2007 mental health examination at the Atlanta VA Medical Center (VAMC). The Veteran was diagnosed with PTSD due to his combat experiences during service in the Republic of Vietnam. This evidence is new as it was not previously considered and is also material as it relates to a previously unestablished fact in the claim-competent medical evidence diagnosing the condition. Thus, new and material evidence has been received and reopening of the claim for entitlement to service connection for an acquired psychiatric disorder is warranted. Reopened Claim for Service Connection The Veteran contends that service connection is warranted for an acquired psychiatric disorder as it was incurred due to various traumatic combat experiences during active duty service in Vietnam. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran testified in September 2012 that he served in Vietnam at a supply depot and was subject to incoming rockets and hostile fire on a nightly basis. In a February 1991 statement, the Veteran reported that from June 1970 to January 1971 he participated in daily ordinance convoys that were also subject to enemy fire. On one such run in 1970, he incurred a shrapnel injury. The medical evidence of record establishes that the Veteran was diagnosed with PTSD at the Atlanta VAMC in October 2007. In addition, the diagnosis of PTSD was based on the Veteran's combat experiences in Vietnam. The record therefore establishes a diagnosis of PTSD and a link between the disorder and the Veteran's reported in-service stressors. Thus, the determinative issue in this case is whether the evidence supports a finding that the Veteran's claimed in-service stressors occurred. In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service will vary depending on whether a veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence. No further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d),(f) (2012); Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Veteran has reported exposure to enemy fire during his service in Vietnam. Service records confirm that the Veteran served in Vietnam from June 1970 to May 1971. While none of his awards or decorations verify combat service, personnel records document the Veteran's service at a supply depot and participation in several Vietnam campaigns, to include the Sanctuary Counteroffensive in December 1971. In addition, service medical records verify the Veteran's testimony that he incurred a shrapnel injury to his left knee in 1970. The United States Court of Appeals of Veterans Claims (Court) has held that receiving enemy fire can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. VAOPGCPREC 12-99 (1999). Evidence submitted to support a claim that a veteran engaged in combat may include the Veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The Board therefore finds that the Veteran's credible testimony as well as the contents of the service records weighs the evidence in favor of a finding that he engaged in combat. In light of the foregoing, the Board concludes that the record contains credible supporting evidence that the Veteran's claimed combat stressors occurred. Accordingly, service connection is warranted for PTSD. Increased Rating Diabetes Mellitus Service connection for diabetes mellitus with peripheral vascular disease in both lower extremities was granted in the January 2007 rating decision on appeal. An initial 10 percent evaluation was assigned effective March 23, 2006. The Veteran is in receipt of separate compensable ratings for complications of diabetes including peripheral neuropathy of the bilateral lower extremities, bilateral nuclear cataracts, and erectile dysfunction. This decision is limited to consideration of the appropriate rating assigned the diabetes mellitus and peripheral vascular disease. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's diabetes mellitus is currently rated as 10 percent disabling under Diagnostic Code 7913. This diagnostic code provides that when diabetes mellitus is manageable by restricted diet only, a 10 percent evaluation is appropriate. If the disability requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet, a 20 percent evaluation is merited. When insulin, restricted diet, and regulation of activities are required, it is evaluated as 40 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated 60 percent disabling. Note (1) following the rating criteria provides that compensable complications of diabetes mellitus are rated separately unless they are used to support a total disability rating. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). After review of the evidence of record, the Board finds that the Veteran's diabetes does not most nearly approximate the criteria associated with an increased evaluation. All the competent evidence, including the Veteran's September 2012 testimony, indicates that his diabetes mellitus is managed by a restricted diet only. Treatment records from the Atlanta VAMC dated throughout the claims period show that the Veteran's diabetes is treated by diet and in January 2006, the Veteran's private physician specifically noted that the disability was manageable by restricted diet only. A VA contract examination conducted in January 2006 also described treatment by diet with no medication, no episodes of ketoacidosis or hypoglycemic reactions, and visits to a diabetic provider limited to three times a year. The Veteran's service-connected diabetes also includes peripheral vascular disease of the bilateral lower extremities. The Board must determine whether the Veteran's vascular disease is a compensable complication of diabetes as noncompensable evaluations are part of the criteria for a 60 percent evaluation under Diagnostic Code 7913. Peripheral vascular disease is rated by analogy under Diagnostic Code 7114 pertaining to arteriosclerosis obliterans. Under this diagnostic code, a 20 percent evaluation is warranted for claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of .9 or less. A 40 percent evaluation is assigned for claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour; and, trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less. Note (1) following the rating criteria provides that the ankle/brachial index is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Note (3) provides that these evaluations are for involvement of a single extremity. If more than one extremity is affected, evaluate each extremity separately and combine using the bilateral factor is applicable. 38 C.F.R. § 4.104, Diagnostic Code 7114. The Board finds that the Veteran's peripheral vascular disease is separately compensable from his diabetes mellitus and warrants a 20 percent evaluation for each extremity. The Veteran was diagnosed with peripheral vascular disease upon VA contract examination in August 2006 with symptoms including calf pain, weakness, and persistent coldness in the extremities. The August 2006 examiner also found that the Veteran had some decrease in peripheral pulses. The examiner observed that the Veteran experienced intermittent claudication with walking 25 yards on a level grade at 2 miles per hour. This manifestation of the disability is associated with a 40 percent evaluation under Diagnostic Code 7114; however, the Board notes that the record is wholly negative for any trophic changes or other skin abnormalities. Additionally, peripheral pulses were only slightly decreased upon examination and a September 2006 Doppler study demonstrated a normal ankle/brachial index greater than 1.0. The Board also notes that the Veteran's private and VA treatment records dated throughout the claims period are negative for complaints or treatment for vascular disease. The Veteran's testimony in September 2012 regarding his symptoms of diabetes was also limited to discussion of neurological impairment of the lower extremities. Therefore, while the Veteran manifests symptoms that are contemplated by noncompensable, 20 percent, and 40 percent evaluations, the Board finds that the Veteran's peripheral vascular disease most nearly approximates 20 percent ratings for each lower extremity. In sum, the Veteran's diabetes is contemplated by the currently assigned 10 percent evaluation under Diagnostic Code 7913. The competent medical and lay evidence clearly establishes that the disability is managed by restricted diet only and the diabetes has no noncompensable complications. The Veteran's peripheral vascular disease also warrants separate 20 percent evaluations for each lower extremity under Diagnostic Code 7114. The Board has considered whether there is any other schedular basis for granting higher ratings, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the assignment of higher ratings other than those discussed above. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Other Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's diabetes mellitus is manifested by symptoms including abnormal blood sugar levels that are controlled by a restricted diet without medication or regulation of activities. His peripheral vascular disease manifests leg pain, weakness, and coldness in the extremities. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. The Court has recently held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. In this case, the record is negative for evidence that the Veteran is unemployable due to service-connected disabilities. He is not in receipt of Social Security disability benefits, and during a January 1991 VA examination the Veteran reported that he stopped working as a truck driver due to nonservice-connected back and knee disabilities. There is also no medical evidence that the Veteran's service-connected disabilities have rendered him unable to obtain or maintain employment. Therefore, remand or referral of a claim for TDIU is not necessary. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) defined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With respect to the claims to reopen and allow service connection for an acquired psychiatric disorder, VA has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to reopen and grant the claim. The Veteran has also initiated an appeal regarding the initial rating assigned his diabetes mellitus following an award of service connection. The claim for service connection for the disability on appeal is now substantiated and the filing of a notice of disagreement as to the January 2007 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the AOJ must take development or review action it deems proper under applicable regulations and issue a statement of the case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The December 2008 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disabilities at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluations that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran was provided an adequate VA contract examination in August 2006 in response to his claim for an increased rating. VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. The Veteran is in receipt of retirement benefits from the Social Security Administration (SSA), but the SSA database indicates that the award of compensation was not based on a disability determination. The Board therefore finds that a remand to request records from the SSA is not required as there is no reasonable possibility such records would be relevant to the Veteran's claim. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER New and material evidence having been submitted, reopening of the claim for entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for an acquired psychiatric disorder diagnosed as PTSD is granted. Entitlement to an initial rating in excess of 10 percent for diabetes mellitus is denied. Entitlement to a separate 20 percent rating, but not higher, for peripheral vascular disease of the right lower extremity is granted. Entitlement to a separate 20 percent rating, but not higher, for peripheral vascular disease of the left lower extremity is granted. REMAND The Board finds that additional development is necessary with respect to the claims for entitlement to service connection for hearing loss and tinnitus. Specifically, the Veteran should be provided a VA audiological examination to determine the nature and etiology of the claimed hearing loss and tinnitus. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the nature and etiology of the claimed hearing loss and tinnitus. The claims file must be made available to the examiner for review in connection with the examination. After performing all necessary tests, the examiner should determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any hearing loss disability and/or tinnitus was incurred in or aggravated by any incident of active duty service, to include the Veteran's noise exposure during combat service in Vietnam. A rationale for all expressed opinions (to include specific reference to evidence from the claims file) must also be provided. 2. Readjudicate the claims on appeal. If the benefits sought are not fully granted, issue a supplemental statement of the case (SSOC) before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs