Citation Nr: 1339964 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 07-24 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder and posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to June 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO) and a May 2006 rating decision of the St. Petersburg, Florida RO. The Veteran's claims file remains in the jurisdiction of the St. Petersburg RO. In September 2009 and May 2011, the Board remanded the claims for further development of the evidence. The matters of entitlement to an increased rating for diabetes mellitus and TDIU are REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) during the appeal period. 2. The Veteran's acquired psychiatric disorder, diagnosed as bipolar disorder, has not been shown to be related to his active service or to any incident therein. CONCLUSION OF LAW An acquired psychiatric disorder, to include bipolar disorder and PTSD, was not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1) (2013). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was issued a VCAA letter in February 2006, which was prior to issuance of the May 2006 rating decision on appeal. This letter specifically advised him of the evidence needed to substantiate his service connection claim, and outlined his responsibilities and those of VA in obtaining relevant evidence. A May 2006 letter, issued in conjunction with the May 2006 rating decision, described in detail how VA assigns disability ratings and effective dates. A May 2007 statement of the case (SOC), along with October 2010 and May 2012 supplemental SOCs (SSOCs) readjudicated the matter after the Veteran responded and further development was completed. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim). Therefore, VA satisfied its duty to notify. Regarding VA's duty to assist, all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, VA and private treatment records, Social Security Administration (SSA) records, the report of an August 2011 VA examination; and multiple lay statements. The Veteran has not identified any outstanding relevant evidence. There is also substantial compliance with the Board's September 2009 and May 2011 remand directives in that the Veteran was sent a letter in June 2011 asking him if he'd received any further treatment for his psychiatric disability, a VA psychiatric examination was completed in August 2011, and the appeal was readjudicated by a May 2012 SSOC. Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2011 examiner reviewed the Veteran's claims file, considered his lay statements, and thoroughly responded to the questions asked by the Board. Therefore, that opinion is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board's remand also requested that the AOJ make an express determination regarding the nature of the Veteran's stressors, e.g., whether he engaged in combat with the enemy, whether his stressors were related to the fear of hostile military or terrorist activity, or if further corroboration of his stressors was required. 38 C.F.R. § 3.304(f) (2013). The record does not reflect that such a determination was expressly made. However, the record shows the VA examiner considered the Veteran's statements regarding his stressors in determining whether the criteria for a diagnosis of PTSD were met. The importance of making an express determination regarding the nature of the Veteran's stressors would be to determine whether his lay testimony alone is sufficient to establish the occurrence of them, without further corroboration. Id. Since the examiner accepted the Veteran's lay testimony regarding his alleged stressors, an express determination by the AOJ did not end up being necessary for examination purposes. As explained below, the Veteran's claim for PTSD is being denied based on the absence of a PTSD diagnosis, not based on the sufficiency or veracity of his stressors. Therefore, the Board concludes that the AOJ substantially complied with the Board's remand directives. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Legal Criteria and Analysis This appeal arises out of the Veteran's contention that he currently suffers from an acquired psychiatric disorder, to include bipolar disorder and PTSD, resulting from stressful events he experienced while stationed in Vietnam during service. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)]; (2) a link, established by medical evidence, between current symptoms and a stressor event in service; and (3) credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f) (2013). Here, the record does not reflect the Veteran has a diagnosis of PTSD in accordance with DSM-IV criteria at any time during the appeal period. Specifically, on August 2011 VA examination, the examiner noted that the Veteran served in Vietnam and experienced stressors that he still remembered; however, the examiner found that his symptoms did not meet the full criteria for PTSD. There are no other private or VA treatment records or examinations of record that reflect a diagnosis of PTSD during the appeal period. Without a diagnosis of PTSD, service connection for that disability cannot be granted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding that the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability). Therefore, in the absence of credible evidence of a diagnosis of PTSD, the first element of a claim for service connection for PTSD has not been met and the Veteran's claim fails on this basis alone. The question remains as to whether the Veteran has any other acquired psychiatric disability that is related to his service pursuant to the general criteria to establish service connection. 38 C.F.R. § 3.303 (2013). The record clearly shows the Veteran has a diagnosis of bipolar disorder during the pendency of the appeal. For example, the Axis I diagnosis provided on August 2011 VA examination was bipolar disorder. Additionally, VA treatment records throughout the appeal period consistently reflect the Veteran is receiving VA treatment for bipolar disorder. The record does contain an August 2005 Virginia Department of Rehabilitative Services (VDRS) general medical consultant report that shows diagnoses of schizophrenia and anxiety. However, these diagnoses were provided prior to when the Veteran filed his claim of service connection for a psychiatric disorder in January 2006. Since that time all treating and examining providers have only diagnosed the Veteran with bipolar disorder. See McClain, 21 Vet. App. at 321. Additionally, the report does not reflect that the physician who provided the consultation had specialized expertise in psychology as he recommended a psychological evaluation be completed based on the Veteran's history of psychiatric problems. As such, the diagnoses appear to be based solely on the Veteran's history, rather than on a clinical evaluation of the Veteran's mental status. It is also notable that a July 2005 VDRS psychological evaluation, completed just prior to the August 2005 consultation, reflects a diagnosis of bipolar disorder, but does not show diagnoses of schizophrenia or anxiety. The Board thus places little weight on the August 2005 diagnoses of schizophrenia and anxiety and concludes that the only diagnosed psychiatric disorder during the appeal period is bipolar disorder. As there is a confirmed diagnosis of an acquired psychiatric disorder during the appeal period, the first element of the claim for service connection for an acquired psychiatric disorder is met. The Veteran has alleged that he has a psychiatric disorder related to his exposure to certain events during his service in Vietnam. More specifically, he has indicated that while serving as a "storekeeper" on the U.S.S. Fort Marion en route to Vietnam he saw dozens of body bags on the landing craft waiting to be taken to an air base. He also alleges that he encountered on-shore fighting in Da Nang harbor. The Veteran is competent to report the circumstances of his service that he can observe and describe. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.159(a)(2) (2013). The Veteran's service personnel records indicate that he served aboard the U.S.S. Fort Marion with amphibious construction battalion one. His DD Form 214 indicates he received the Vietnam Service Medal with one bronze star. The Vietnam Service Medal was awarded to all members of the Armed Forces who served in Vietnam or its contiguous waters or airspace or in Thailand, Laos, or Cambodia in direct support of opertaions in Vietnam after July 3, 1965 and before March 28, 1973. See Department of Defense, Manual of Military Decorations and Awards: DoD Service Awards - Campaign, Expeditionary, and Service Medals, vol. 2, at 67 (rev. May 31, 2013). Hence, the Board finds that the Veteran's statements regarding the circumstances of his service are also credible as his service personnel records lend support to them. What remains to be established is whether his bipolar disorder is etiologically related to the events he experienced in service. There are of record two medical opinions that address this question. When evaluating the evidence of record, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Although the Board may appropriately favor the opinion of one competent medical authority over another, see Wensch v. Principi, 15 Vet. App. 362, 367 (2001), it must consider and weigh all medical evidence, keeping in mind the command of Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), that the benefit of the doubt in resolving such issues shall be given to the Veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). A July 2005 psychological evaluation completed by N.W., Psy.D., for VDRS indicates that the Veteran reported having a nervous breakdown three years previously as a result of financial difficulties and problems in his personal relationships. The Veteran reported that he worked in the amphibious unit in Vietnam for one year and that while he was not in direct combat he saw the results of such combat. Although this evaluation discusses events the Veteran experienced in service, it does not provide an opinion as to whether the bipolar disorder diagnosed at the evaluation is etiologically related to these events. Therefore, the Board places no weight on this report regarding the etiology of the Veteran's bipolar disorder. On August 2011 VA examination, the examiner, a clinical psychologist, concluded that it was less likely than not that the Veteran's bipolar disorder was incurred or aggravated by military service. She discussed the events the Veteran described as occurring during his service. She also noted that there was no evidence that any mental disorder or psychiatric symptoms were treated or evaluated during service. She explained that her opinion was based on her review of the claims file, including the Board's remand, review of VA records, a clinical interview with the Veteran, review of medical literature regarding diagnostic criteria for bipolar disorder, and her clinical experience and expertise. The Board places substantial weight on this probative opinion. The examination report reflects that the examiner thoroughly reviewed the claims file, reviewed pertinent medical literature, and provided a rationale regarding her opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). Further, the opinion reflects that the examiner considered pertinent evidence, including VA records and the Veteran's statements, in reaching her medical conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that it is the reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion). The Veteran has also alleged a continuity of symptomatology of psychiatric symptoms since service. However, the Veteran's disability is not a chronic disease listed in 38 C.F.R. § 3.309. See 38 C.F.R. § 3.384 (defining "psychoses"). Thus, service connection is not available on the basis of continuity of symptoms after discharge, pursuant to 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no evidence in the record indicating a relationship between the Veteran's service and his bipolar disorder. As explained above, the record also does not contain a diagnosis of PTSD under DSM-IV criteria during the appeal period. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder, the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for an acquired psychiatric disability, to include bipolar disorder and PTSD, is denied. REMAND The Veteran seeks a rating in excess of 20 percent for his service-connected diabetes and entitlement to TDIU. Unfortunately, before the Board can adjudicate these claims on the merits, additional development is required. The claim for an increased rating for diabetes mellitus was previously remanded in September 2009 and May 2011, in part, to obtain a VA examination to determine the current nature and severity of the disability, to include all diabetes mellitus-related disabilities. Examinations to assess diabetes and erectile dysfunction were appropriately secured in September 2011. However, the record reflects that the Veteran is also service-connected for diabetic retinopathy and hypertension as secondary to diabetes. See January 2006 rating decision; May 2011 Board decision; June 2011 rating decision. The AOJ did not secure an examination to address these diabetes-related disabilities. Since the Veteran has generally disagreed with the rating for diabetes mellitus, his disagreement is broad enough to include the question of ratings for diabetic complications, including the already service-connected disabilities of diabetic retinopathy and hypertension. Although the September 2011 VA examination indicated the Veteran did not have diabetic retinopathy, since he has previously been service-connected for this disability, a separate examination should have been secured to appropriately assess any diabetic retinopathy. Additionally, as noted, the Board's prior remands specifically instructed that all diabetes mellitus-related disabilities should be assessed on examination. Since there has not been substantial compliance with the Board's remand instructions, the Board finds that a further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). The record also reflects the Veteran receives VA treatment for his diabetes and related disabilities. The most recent VA treatment records are from November 2010. On remand, all updated pertinent VA treatment records should be obtained. In December 2011, the Veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, alleging that his service-connected diabetes and hypertension prevent him from securing or following any substantially gainful occupation. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits but is instead 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, here diabetes, it is part of the claim for benefits for the underlying disability. Id. at 453-54. Since this issue is not yet ripe for review, it must be remanded for additional development. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from November 2010 to the present. If any of these records are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After the development requested in item 1 is completed, schedule the Veteran for an examination to determine the current nature and severity of his service-connected diabetic retinopathy. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA and VBMS eFolder) should be made available to and be reviewed by the examiner in conjunction with this request. A report of the examination should be prepared and associated with the Veteran's VA claims file. 3. After the development requested in item 1 is completed, schedule the Veteran for an examination to determine the current nature and severity of his service-connected hypertension. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA and VBMS eFolder) should be made available to and be reviewed by the examiner in conjunction with this request. A report of the examination should be prepared and associated with the Veteran's VA claims file. 4. After the aforementioned development has been completed, and after performing any necessary development for the claim for TDIU, to include providing a duty to notify and assist letter and scheduling any necessary VA examination, adjudicate the Veteran's claim for TDIU. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran with an SSOC and afford him a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2013). ____________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs