Citation Nr: 1322313 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-04 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) with alcoholism. 3. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes that the psychiatric claim on appeal has been developed as a claim for PTSD with alcoholism. The Court of Appeals for Veterans Claims has held that 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. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the claim has been recharacterized to include any psychiatric disorder. Additionally, the Board notes that the claim for hypertension has been recharcterized to include consideration of secondary service connection in order to more accurately reflect the Veteran's actual arguments and assertions. Specifically, in an April 2013 brief, the Veteran's representative cited numerous medical studies to support a theory that the Veteran's hypertension developed as a result of psychiatric trauma. Finally, the Board notes that, in the course of this appeal, the Veteran requested a hearing before a member of the Board. Such a hearing was scheduled for March 2013; however, the Veteran failed to appear on the scheduled date. The Veteran and his representative have not requested that the hearing be rescheduled or provided an explanation regarding his absence. Indeed, since March 2013, the Veteran's representative has presented extensive argument concerning the appeal, yet made no mention of the Veteran's absence on the hearing date or of any pending hearing request. Thus, the hearing request is considered withdrawn at this time. See 38 C.F.R. § 20.704. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. However, no new records pertinent to this appeal were found therein. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a psychiatric disorder and hypertension 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 served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 2. The Veteran has a current diagnosis of diabetes mellitus that requires at least a restricted diet for control. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, type II diabetes is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.119 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In the decision below, the Board has granted the Veteran's claim for service connection for type II diabetes mellitus. Therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to 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 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran's personnel records reflect service in the Republic of Vietnam from June 24, 1967, to May 3, 1968. Therefore, the Board finds that the Veteran is presumed to have been exposed to herbicides coincident with his service in the Republic of Vietnam. Current VA regulations provide that the following diseases shall be service-connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease (excluding hypertension), chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2012). Except for chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, these diseases must have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The record reflects that the Veteran has a diagnosis of type II diabetes mellitus. In March 2007, the Veteran was hospitalized at a private medical facility for nonspecific chest pain. A past medical history of type II diabetes mellitus was noted. A complete blood count was taken, and the Veteran's discharge summary shows a diagnosis of non-insulin dependent diabetes mellitus (NIDDM). VA treatment records from March 2007 and June 2007 reflect also diagnoses of diabetes mellitus as Axis III diagnoses. Additionally, in April 2007, the Veteran was enrolled in a VA Patient Education Class for managing diabetes. Based on the foregoing, the Board finds that the Veteran has a current diagnosis of type II diabetes mellitus, which is presumed to be a result of exposure to herbicides. The Board notes that the RO denied this claim due to the fact that VA medical records note a history of a diabetes diagnosis, but serial blood tests in 2007 and 2008 revealed normal glucose. It appears to the Board that the Veteran was diagnosed with diabetes mellitus in approximately 2006 or 2007. There is very little medical evidence associated with the claims file dated after that time. However, regardless of the RO's interpretation of 2007 and 2008 blood testing, the law establishes that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2009). Here, the Board finds that the above-cited private and VA medical records establish a current diagnosis for purposes of VA adjudication. Further, the record shows that the requirements for a 10 percent evaluation, at minimum, have been satisfied under the applicable diagnostic code. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). The March 2007 private medical report noted the Veteran's diabetes was non-insulin dependent, but it was also noted within the treatment records that the diabetes was probably diet-controlled. He was The Veteran was enrolled in April 2007 in a VA Patient Education Class for managing diabetes. Moreover, the March 2007 VA treatment record documenting diabetes also noted "oral med." This evidence indicates that, at a minimum, the Veteran's diabetes mellitus is controlled by diet, thereby satisfying the requirements for a 10 percent evaluation under Diagnostic Code 7913, which is the code governing the rating of diabetes mellitus. For all of these reasons, the Veteran's claim is granted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for type II diabetes mellitus is granted. REMAND The Board's review of the claims file reveals that further development is needed prior to adjudication of the claims for service connection for an acquired psychiatric disorder and hypertension. The record suggests that there may be outstanding private treatment records. In this regard, the Veteran indicated in a February 2008 VA Form 21-4138 that he has received treatment at Norwalk Pioneer Medical Clinic in Norwalk, California, and at the Los Angeles County USC Medical Center in Los Angeles, California. However, the file does not contain records from these providers, and it does not appear that the RO requested such records. Therefore, an attempt should be made to obtain and associated them with the claims file. The record also suggests that there may be outstanding VA treatment records and other federal records pertinent to the Veteran's claims. In a January 2008 VA Form 21-4142, the Veteran indicated that he has received treatment at VA Medical Centers (VAMCs) in Dallas, Texas, and Oklahoma. While other VA treatment records have been obtained, records from these facilities do not appear in either the paper claims file or the Virtual VA file. In the February 2008 VA Form 21-4138 mentioned above, the Veteran also indicated that he has received treatment at Mike O'Callaghan Federal Hospital in Las Vegas, Nevada. One request for these records was made, but no response was ever received. VA is held to have constructive notice of the contents of VA records at the time of adjudication. Bell v. Derwinski, 2 Vet. App. 611 (1992). Also, 38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." Therefore, an attempt should be made to obtain any outstanding VA and federal medical records that are pertinent to the claims. Additionally, the Board finds that a VA examination and medical opinion is necessary to resolve the claims remaining on appeal. In this regard, the Board notes that the Veteran was scheduled for VA examinations in November 2009 and November 2012, but failed to appear on each occasion. The Board is cognizant, however, that the Veteran in this case is homeless, and as such, finds that another attempt should be made to schedule him for VA examinations and properly notify him of the appointments. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010) which involved the presumption of regularity in notification of VA examinations.) At this juncture, it is simply unclear from the record whether the Veteran actually received notice of the previous VA examinations. As for the psychiatric claim, the Veteran was diagnosed with PTSD in an August 2008 VA medical report. As for the in-service incurrence of a psychiatric disorder, at separation from service in May 1968, the Veteran indicated that he suffered from depression or excessive worry, and excessive drinking. The examining physician noted he suffered from chronic nervousness, but was "emotionally OK now." Further, in a September 2008 VA Form 21-0781, the Veteran alleged a stressor involving the death of a fellow serviceman named Wood or Woods while on active duty. A January 2010 response from the U. S. Armed Services Center for Research of Unit Records (CURR) corroborated that a warrant officer assigned to Company A, 1st Aviation Battalion with the last name of Woods was killed by small arms fire during a ground attack in December 1965. Further, the Veteran has alleged that he was involved in combat conditions during his tours in Vietnam, including attack missions. In April 2013, the Veteran's representative requested review of the claim under the current version of 38 C.F.R. § 3.304(f). Pursuant to the current 38 C.F.R. § 3.304(f) , 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. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). Given all of this, the Board finds that a VA medical opinion is needed to determine whether the Veteran's current psychiatric disorder may be related to service. At present, the file contains only a negative nexus opinion of the August 2008 VA physician. It does not appear, however, that this physician considered the in-service documentation of psychiatric symptoms, the Veteran's corroborated stressor, or his fear of hostile military or terrorist activity. With regard to hypertension, there is evidence showing that the Veteran has the disorder. His service treatment records also show a blood pressure reading of 150/90 in April 1964. Therefore, a VA examination and medical opinion are needed to determine whether the Veteran currently has hypertension related to his military service or to any service-connected disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should attempt to ascertain a current mailing address for the Veteran. All documentation in this regard should be associated with the claims file. The Veteran's representative (currently Disabled American Veterans), should be sent copies of all documents that are sent to the Veteran. 2. The RO/AMC should send the Veteran a notice letter in connection with his claims for service connection. The letter should inform him of the evidence necessary to substantiate a claim on both a direct and secondary basis. 3. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed disorders. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. A specific request should be made for treatment records from the Norwalk Pioneer Medical Clinic in Norwalk, California, and the Los Angeles County USC Medical Center in Los Angeles, California. 4. The RO/AMC should obtain all VA treatment records pertaining to the Veteran from the VA Medical Center in Dallas, Texas, and the Mike O'Callaghan Federal Hospital in Las Vegas, Nevada. The RO/AMC should ask the Veteran to identify the particular VA facility in Oklahoma where he received treatment. Thereafter, obtain all VA treatment records pertaining to the Veteran from that facility. 5. The Veteran is to be notified that it is his responsibility to report for VA examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. The Veteran should be afforded a VA examination to determine the nature and etiology of any current psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. For each diagnosis identified, the examiner should indicate when the disorder manifested and whether it is at least as likely as not that that the disorder is related to the Veteran's military service, including the documented symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) With respect to PTSD, the RO/AMC should provide the examiner with a summary of any verified in-service stressors, including the corroborated stressor involving the death of a warrant officer, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. In making this determination, the examiner should discuss the diagnoses documented in the claims file, including the diagnosis rendered in an August 2008 VA treatment report. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. The Veteran should be afforded a VA examination to determine the nature and etiology of any current hypertension. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran currently has hypertension that is related to his military service. In so doing, the examiner should note the April 1964 blood pressure reading of 150/90. The examiner should also provide an opinion addressing whether it is at least as likely as not that the Veteran's hypertension was caused by or aggravated (permanently made worse) by his service-connected diabetes mellitus or a psychiatric disorder. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, consistent with 38 C.F.R. § 3.310 (as revised effective in October 2006). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 8. After the development requested has been completed, the RO/AMC should review the examination reports to ensure that they are in compliance with the directives of this REMAND. If any report is deficient in any manner, the RO/AMC should implement corrective procedures. 7. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 8. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of the amended version of 38 C.F.R. § 3.304, as well as the provisions of 38 C.F.R. § 3.310. The appellant 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). 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs