Citation Nr: 1327167 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-10 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include major depressive disorder and posttraumatic stress disorder. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from November 1965 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In February 2012, the Veteran testified during a videoconference Board hearing before the undersigned Veterans Law Judge. At that time, he submitted additional evidence with a waiver of RO review. FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran currently has PTSD that is causally related to his fear of hostile military activity during service. 2. The Veteran served in the Republic of Vietnam during the Vietnam Era; thus, exposure to herbicide agents in service may be presumed. 3. There is an approximate balance of positive and negative evidence as to whether the Veteran currently has diabetes mellitus type 2. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012); 38 C.F.R. § 3.304(f) (effective July 13, 2010). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for diabetes mellitus type 2 have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection for certain chronic diseases, including psychoses and diabetes mellitus, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). PTSD Service connection for PTSD requires (1) medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) consistent with the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders, 4th Ed. 1994 (DSM-IV); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). During the pendency of this claim, effective July 13, 2010, VA amended the regulations pertaining to the adjudication of disability compensation claims for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor in certain cases. 75 Fed. Reg. 39,843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). When the claimed in-service stressor is related to the veteran's fear of hostile military or terrorist activity, the following shall be demonstrated to establish service connection for PTSD: (1) the claimed stressor is consistent with the places, types and circumstances of the veteran's service; (2) a VA psychiatrist or psychologist, or contract equivalent, confirms the claimed stressor is adequate to support a diagnosis of PTSD; and (3) the veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3) (2012). The regulatory change eliminated the requirement for corroborating evidence of the claimed in-service stressor if it is related to the veteran's fear of hostile military or terrorist activity. 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) (2012). In this case, the Veteran claims that he has PTSD due to his service in the Republic of Vietnam where he was assigned to COMNAVFORV as a communications staff working in a windowless facility. He asserts that the equipment was rigged with thermite explosives and he was under orders to blow up the equipment if the enemy infiltrated the compound and entered the facility, noting that the orders in effect told him that neither he nor the equipment was to fall into enemy hands. He also asserts that the facility was often placed on high alert during the first four to five weeks of his assignment. Thus, the claimed stressor is related to his fear of hostile military action. The Veteran's service personnel records show that he served in the Republic of Vietnam from June 1968 to June 1969 and he was assigned to COMNAVFORV (Commander United States Naval Forces Vietnam). They also show that he was given a class on self-protection, escape, and evasion. Thus, the claimed stressor is consistent with the places, type, and circumstances of the Veteran's service After review, the Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran currently has PTSD that is causally related to his fear of hostile military activity during service. A July 1999 VA treatment note indicates a diagnosis of PTSD with depression due to combat service in Vietnam. A September 1999 VA treatment note shows a diagnosis of PTSD. A June 2005 VA treatment note shows positive depression and PTSD screens and in September 2005 the Veteran was diagnosed with depression by a licensed clinical social worker. In October 2005, a VA psychiatrist diagnosed the Veteran with panic disorder with agoraphobia and PTSD. VA treatment notes dating from March 2006 acknowledge prolonged PTSD and depressive disorder as active problems. As there was evidence indicating a diagnosis of PTSD related to his service in Vietnam, the Veteran was afforded a VA examination to determine whether his PTSD was related to his fear of hostile military activity. An August 2010 VA examination report found no Axis I diagnosis of a psychiatric disorder and the psychologist's conclusion was that the Veteran's symptoms of PTSD are not severe or frequent enough to warrant a clinical diagnosis. The examiner noted that the claimed stressor marginally met the criteria for PTSD and indicated that the Veteran exhibited symptoms of depression and anxiety that were not related to service. Thus, although the psychologist confirmed that the Veteran's claimed stressor was adequate to support a diagnosis of PTSD, the psychologist opined that the Veteran's symptoms are not related to the claimed stressor. However, a subsequent November 2010 VA treatment note, authored by a licensed clinical social worker, shows that the Veteran continued to have symptoms of PTSD including intrusive and distressing memories and dreams, avoidance, emotional numbing, and arousal, all associated with his experiences in Vietnam. In a VA treatment note dated later that month, a psychiatrist confirmed the diagnosis of PTSD. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that he currently has a diagnosis of PTSD by a VA psychiatrist that is causally related to his fear of hostile military activity during service. Accordingly, the appeal is granted. 38 C.F.R. § 3.102 (2012); 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Board notes that the scope of a mental health disability claim includes any mental health 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). In this case, the Veteran's specific contention is that he suffers from a chronic mental disorder due to in-service stressful events. The chronic mental disorder resulting from the in-service stressful events has been clinically identified as PTSD. As the Board has found that service connection for PTSD is warranted, a full grant of the benefit sought on appeal has been awarded. To the extent he may assert a separate service connection claim for other psychiatric disorders, including major depressive disorder and panic disorder with agoraphobia, the Board finds that any symptoms of any other disorders are part of the PTSD granted herein. 38 C.F.R. § 4.130 (2012). Diabetes Mellitus Service connection for diabetes mellitus type 2 may be presumed if a Veteran served on the land mass or in the inland waters of the Republic of Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(e) (2012). Moreover, Veterans who served on active duty on the land mass or in the inland waters of 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 to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any herbicide agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2012). In this case, the Veteran claims that he is entitled to presumptive service connection for diabetes mellitus type 2. The Veteran's service personnel records show that he served in the Republic of Vietnam from June 1968 to June 1969. As he served in the Republic of Vietnam during the Vietnam Era, exposure to herbicide agents in service may be presumed. The remaining question is whether he has diabetes mellitus type 2. After review, the Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran currently has diabetes mellitus type 2. VA treatment notes show that the Veteran was diagnosed with glucose intolerance in February 2007 and subsequently placed on Metformin, a diabetes medication. The treatment notes then show a diagnosis of diabetes mellitus, type 2 or unspecified type. A May 2009 addendum shows that two glucose readings of 125 or greater are required for a diagnosis of diabetes, but the Veteran's VA medical records do not document such readings and thus he did not have diabetes. However, a June 2009 note carries forward the diagnosis of diabetes mellitus type 2 but without discussion of the above addendum. As there was conflicting medical evidence regarding the diagnosis, the Veteran was afforded a VA examination. A December 2009 VA examination report shows the examiner's conclusion that there is insufficient clinical evidence to warrant a diagnosis of any type of diabetes mellitus or residuals thereof. However, a subsequent October 2010 VA treatment note shows that the Veteran meets the American Diabetes Association definition for diabetes, which includes hemoglobin A1C being greater than 6.5, which the Veteran has, and he was likely to meet the fasting blood sugar criteria if he were not on Metformin. A letter indicating that was sent to the Veteran that same day. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that he currently has diabetes mellitus type 2, which is presumed to be related to herbicide exposure during service in Vietnam. Accordingly, the appeal is granted. 38 C.F.R. § 3.102 (2012); 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is granted. Service connection for diabetes mellitus type 2 is granted. ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs