Citation Nr: 1307167 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-11 234A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for peripheral neuropathy of all extremities, claimed as due to diabetes mellitus. 3. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Thus, in light of Clemons v. Shinseki, the Board has recharacterized the Veteran's claim as a claim for service connection for an acquired psychiatric disorder, to include PTSD, as set forth on the title page. The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and entitlement to service connection for peripheral neuropathy of all extremities, claimed as due to diabetes mellitus, 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. FINDING OF FACT A preponderance of the evidence is against a finding that there is a regulation of the Veteran's activities or retinopathy due to his diabetes mellitus. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to 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 (Fed. Cir. 2009). The Veteran's increased rating claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment 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 claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has concluded that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). Analysis Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two 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 (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the Veteran's disability warranted a rating higher than 20 percent. See Fenderson v. West, 12 Vet. App. 119 (1999). Under the provisions of Diagnostic Code 7913 for diabetes mellitus, a 100 percent rating is warranted where there is a requirement for more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. A 60 percent rating is warranted where there is a requirement for 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 evaluated. A 40 percent rating is appropriate where there is a requirement for insulin, restricted diet, and regulation of activities. A 20 percent rating is warranted where there is a requirement for insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 10 percent rating is appropriate where the diabetes is manageable by restricted diet only. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). The definition of "regulation of activities" in the criteria for a 100 percent rating, that is, the "the avoidance of strenuous occupational and recreational activities," also applies to the "regulation of activities" criterion for a 40 or 60 percent rating under Diagnostic Code 7913. In addition, the criterion of "regulation of activities" requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 363-65 (2011). Moreover, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the criteria listed in the 60 percent rating must be met in order to warrant such a rating. The provisions of 38 C.F.R. § 4.7 pertaining to a higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, do not apply. See Camacho at 366-367; see Tatum v. Shinseki, 23 Vet. App. 152, 156 (2011) (where there are successive rating criteria as in DC 7913, to grant a higher rating where only two out of three criteria are met would eviscerate the need for different ratings since symptoms established for either rating might be the same). The Board has reviewed the entire record, to include the VA examination conducted in October 2007, as well as private treatment and VA treatment records. The VA examination indicates specifically that the Veteran's activities have not been restricted by a medical professional. There is no documentation of medical evidence of a restriction of occupational and recreational activities because of the Veteran's diabetes. Thus, the Veteran's diabetes mellitus disability does not warrant a rating higher than 20 percent at any point during the relevant period. The Board additionally notes that the October 2007 VA examiner (a staff physician) diagnosed the Veteran with diabetic retinopathy, mild, in his left eye. The RO indicated such in the December 2007 rating decision; however, such condition was not determinative of the Veteran's 20 percent rating provided at that time. An October 2008 VA treatment record, an ophthalmology consult, indicates that the Veteran had no diabetic retinopathy per objective retinal imaging. The retinal imaging interpreted by an ophthalmologist in this regard is more probative than a notation by a staff physician. The Board finds that the preponderance of the evidence indicates that the Veteran does not have diabetic retinopathy. There is no indication in the private treatment records or VA treatment records that the Veteran has complained of or been treated for any other disability related to his diabetes mellitus. The Veteran's claims for service connection for peripheral neuropathy are being remanded herein for further medical evidence concerning this condition. Therefore, additional separate evaluations for complications of diabetes are not warranted here. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected diabetes mellitus but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER Entitlement to an evaluation in excess of 20 percent for diabetes mellitus is denied. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Concerning the Veteran's claim for service connection for peripheral neuropathy, the October 2007 VA examination report indicates that the Veteran has peripheral neuropathy. However, the cause is listed as multifactorial with prolonged alcohol abuse and B12 deficiency. An April 2009 letter from the Veteran's physician indicates that, the Veteran's diabetes mellitus and peripheral neuropathy are due to his alcohol dependency problems with chronic pancreatitis. The etiology of his peripheral neuropathy is unclear from the record. Thus, the RO/AMC should obtain a medical opinion concerning this issue. The Board notes that the Veteran had active service from March 1966 to March 1968. The Veteran's personnel records indicate that he served in Vietnam from September 1966 to September 1967. The Veteran served as a Field Communication Crewman and as a Wireman with the 335th Transportation Company. The Veteran submitted a stressor statement indicating that in December 1966, while he was stationed in DaNang, he returned to his barracks to find all five of his bunkmates with their throats slit. The Veteran also indicates that in January 1967 or February 1967, he shot a suicide bomber while on guard duty in DaNang. The RO/AMC should attempt to verify these stressors through official sources. A July 2008 VA treatment note indicates that the Veteran's PTSD/depression was stable with medication. The April 2009 letter from the Veteran's private physician indicates that he had previously been diagnosed with PTSD. It's unclear from the current record whether the Veteran has an acquired psychiatric disorder consistent with the DSM-IV. See DSM-IV. On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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 [PTSD] 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. The Board finds that the Veteran should be afforded an examination in order to consider the Veteran's claimed stressors consistent with the recently revised relevant regulations and to determine the nature and etiology of any other acquired psychiatric disorders present. The Board additionally notes that the personnel records in the claims file were submitted by the Veteran. The RO/AMC should request the Veteran's complete 201 file from the National Personnel Records Center (NPRC). The Veteran has received psychiatric treatment at the Atlanta VA Medical Center. It is unclear whether these records are up to date. Thus, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran should also be provided VCAA notice concerning his claim for service connection for an acquired psychiatric disorder to include PTSD. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Send the Veteran a corrective VCAA notification letter which complies with all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, 5103A and 38 C.F.R. § 3.159(b), with respect to the claim for service connection for an acquired psychiatric disorder to include PTSD are fully complied with and satisfied. 2. The Veteran's service personnel records should be obtained from official sources. 3. Attempt to verify the Veteran's claimed stressors through official sources. Specifically, he has claimed that in December 1966, while he was stationed in DaNang, he returned to his barracks to find all five of his bunkmates with their throats slit. The Veteran also indicates that in January 1967 or February 1967, he shot a suicide bomber while on guard duty in DaNang. 4. Obtain and associate with the claims file the Veteran's treatment records from the Atlanta VA Medical System dated from November 2009 to present. 5. Obtain a VA medical opinion concerning the etiology of the Veteran's peripheral neuropathy. The claims file should be provided to and reviewed by the examiner. All necessary testing should be accomplished. For any peripheral neuropathy found, the examiner should indicate whether there is a 50 percent or better probability that it was caused or aggravated by the service-connected diabetes mellitus. If aggravated, the examiner should specify the baseline level of severity of peripheral neuropathy (as established by medical evidence) and the permanent, measurable increase in the severity of the peripheral neuropathy that is attributable to the service-connected diabetes mellitus. The examiner should provide the rationale for all opinions expressed. 6. Thereafter, the RO should schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any psychiatric disability present. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All necessary special studies or tests, to include psychological testing and evaluation, such as the Minnesota Multiphasic Personality Inventory, and the Mississippi Scale for Combat-Related PTSD, should be accomplished. The examiner should determine whether the veteran currently suffers from PTSD related to either a corroborated stressor or his fear of hostile military or terrorist activity while on active duty and whether it is adequate to support a diagnosis of PTSD. 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. If a psychiatric disability other than PTSD is diagnosed, the examiner should indicate whether it is likely as not (50 percent probability or greater) related to the Veteran's active service. The examination report should include the complete rationale for all opinions expressed. The examiner should provide a rationale for the opinions. 7. Then, the RO or the AMC should readjudicate the claims. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs