Citation Nr: 1340702 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 09-27 685A ) 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 disorder. 2. Entitlement to service connection for diverticulitis. 3. Entitlement to service connection for a thyroid disorder, claimed as secondary to service-connected diabetes mellitus, type II. 4. Entitlement to an initial rating in excess of 20 percent for diabetic peripheral neuropathy of the right upper extremity. 5. Entitlement to an initial rating in excess of 20 percent for diabetic peripheral neuropathy of the left upper extremity. 6. Entitlement to an initial compensable rating for erectile dysfunction. 7. Entitlement to an effective date prior to October 13, 2011, for the grant of service connection for diabetic peripheral neuropathy of the right upper extremity. 8. Entitlement to an effective date prior to October 13, 2011, for the grant of service connection for diabetic peripheral neuropathy of the left upper extremity. 9. Entitlement to an effective date prior to October 13, 2011, for the grant of service connection for erectile dysfunction. 10. Entitlement to an effective date prior to October 13, 2011, for the for the award of special monthly compensation (SMC) based on the anatomical loss of a creative organ. 11. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II. 12. Entitlement to a rating in excess of 10 percent for diabetic peripheral neuropathy of left lower extremity. 13. Entitlement to a rating in excess of 10 percent for diabetic peripheral neuropathy of right lower extremity. REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active duty service from April 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2006 and September 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In this regard, the March 2006 rating decision denied service connection for PTSD. The September 2012 rating decision addressed the remaining issues listed on the title page(s). In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder. As relevant to the Veteran's psychiatric claim, in his September 2009 substantive appeal (VA Form 9), he requested a Board hearing before a Veterans Law Judge sitting at the RO. The Board notes, however, in various correspondence, most recently in November 2012, the Veteran withdrew his request for a hearing. 38 C.F.R. § 20.704(e) (2013). The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claims. A review of the documents in the electronic file reveals additional VA treatment records that were associated with Virtual VA in 2012. In this regard, the Board notes that, the records are duplicates of records the Veteran and his attorney submitted to the Board with a waiver of RO initial consideration. Therefore, the Board may properly consider such records. The issue of entitlement to service connection for a psychiatric disability is decided below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the VA RO. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran has a current diagnosis of PTSD as a result of his in-service stressors related to his fear of hostile military activity coincident with his service in Vietnam. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant the Veteran's claim for service connection for PTSD is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, while psychoses are recognized under VA regulations as chronic diseases, the clinical record in this case does not indicate that the Veteran's psychiatric problems encompass a psychosis. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, is required. See 38 C.F.R§ 3.304(f). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the Veteran "engaged in combat with the enemy." See 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(d). 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, the Veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. See 38 C.F.R. § 3.304(f). Prior to July 13, 2010, VA had generally required that, where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, effective July 13, 2010, VA has 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: 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, 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 provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010, as is the case here. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41 ,092 (July 15, 2010). [While the RO did not provide the Veteran with notice of this amendment or consider it in the adjudication of this claim, this does not result in prejudice to the Veteran given the favorable resolution of the claim herein. Bernard v. Brown, 4 Vet. App. 384, 393 (1993).] Once the claimed stressor has been verified, the Veteran's personal exposure to the event may be implied by the evidence of record. A Veteran need not substantiate his actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above criteria in mind, the relevant facts will be summarized. The service treatment reports, to include the report from the December 1971 separation examination, do not reflect psychiatric symptoms or treatment. The service personnel records document service in Vietnam from December 1970 to November 1971, with duties therein listed as a Military Policeman and Senior Military Policeman while assigned to Co. C, 504th Military Police Battalion. Operational Report-Lessons Learned reveal that, from February 8 to March 6, 1971, the Veteran's unit came under eight major enemy ambushes along the main supply route (MSR) where military policeman were directly or indirectly involved. Subsequent to this time additional major ambushes occurred where military police were directly or indirectly involved. The first clinical evidence of treatment for a psychiatric disability is contained in a private psychiatric consultation summary dated in 2000 in which the psychiatrist indicated that the Veteran had a history of PTSD symptoms related to his participation in the Vietnam war. Treatment records from Dr. K.S.R. dated from January 2007 to October 2007 document the Veteran's treatment for PTSD. The Veteran reported in his initial consultation that his traumatic events in service included, "seeing people being killed," as well as "hiding every day in fear of his life." In an August 2007 statement, the Veteran reiterated that, during his time in Vietnam, he saw many dead bodies. He also stated that his unit came under attack while they were returning from delivering artillery. The Veteran submitted internet information from the Department of the Army that detailed the function, history, and duties of the 504th Military Police Battalion. It was noted that, in August 1965, the battalion landed in Qui Nhon, Republic of Vietnam, and, for the next seven years, soldiers of the 504th engaged in the seemingly endless struggle against the Viet Cong and North Vietnamese Army. During a February 2008 VA mental health consultation, the Veteran reported that, during his service in Vietnam, his unit was fired upon; he witnessed the injuries and death of U.S. military; and was responsible for the death of enemy military. PTSD, chronic, and depressive disorder not otherwise specified (NOS) were diagnosed. On an April 2009 examination on behalf of VA, the Veteran reported that his psychiatric symptoms began in 1970. He described depression and crying spells. He indicated that his symptoms were constant, and that they affect his total daily functioning which resulted in his inability to hold a job. The examiner reported that the Veteran stated that he was involved in escorting rockets to fire-bases. The examiner kept referring to the "traumatic event;" however, did not identify such event. Following the examination, the examiner diagnosed adjustment disorder, with disturbance of conduct and dysthymia. The examiner stated "the current Axis I condition does not meet the diagnostic criteria of PTSD according to DSM IV because he does not meet criteria." VA mental health treatment records dated from May 2009 to September 2013 continue to document treatment for PTSD and depressive disorder. In October 2013, private psychiatrist, M.L.C. completed a comprehensive review of the Veteran's entire claims file and then interviewed the Veteran. He determined that the Veteran has PTSD that is directly related to his experiences in Vietnam and did not have comorbid diagnoses of depressive disorder NOS, adjustment disorder, or dysthymia. In this regard, Dr. M.L.C. noted that the service records indicate exposure to multiple traumatic events, engagement with the enemy, and combat-related activities. He observed that the Veteran was diagnosed and has been treated for PTSD from providers directly within VA. Dr. M.L.C. also addressed the April 2009 VA examination. He indicated that the diagnosis of adjustment disorder with disturbance of conduct and dysthymia was incorrect as the Veteran did not meet any of the DSM-V criteria for either an adjustment disorder or dysthymia. Also, Dr. M.L.C. indicated that the April 2009 examiner obviously did not review any of the service records which show multiple engagements with the enemy, therefore the assessment that the Veteran did not experience combat related situations was incorrect. Furthermore, Dr. M.L.C. indicated that the April 2009 examiner did not address any of the symptoms of PTSD that the Veteran had been experiencing for almost 40 years. For example, the April 2009 report documented that the Veteran reported experiencing traumatic events daily; however, the examiner noted the Veteran did not have any sense of fear of death or helplessness during his experiences in Vietnam. Finally, Dr. M.L.C. noted that none of the Veteran's VA treatment providers have diagnosed an adjustment disorder or dysthymia, and in fact during the same year as the April 2009 examination, VA continued to treat the Veteran for PTSD and depression. Dr. M.L.C. further indicated that it was his expert opinion that the Veteran has PTSD with dissociative symptoms, with delayed expression. He noted that the Veteran's depressive symptoms could be ascribed to Criterion D in the DSM-V for PTSD and concluded that, while such might seem to be associated with a secondary diagnosis of a depressive disorder, such symptoms fit within the guidelines for PTSD. Dr. M.L.C. further stated that, essentially, the Veteran meets every one of the DSM-V criteria for PTSD and there is no need to add a secondary diagnosis of a depressive disorder given the updated, comprehensive, and more descriptive symptoms and criteria in the DSM-V. Furthermore, he indicated that there is no indication that the Veteran meets any of the DSM-V criteria for dysthymia or an adjustment disorder. Turning to the elements of service connection, the Board finds that, while the Veteran does not have documented combat service, he was assigned to the 504th Military Police Battalion from December 1970 to November 1971, and during that time, as documented in the "Operational Report" the Veteran's unit was involved in at least 27 enemy ambushes in which military policeman were directly or indirectly involved on the MSR. Therefore, the Veteran has presented stressors related to fear of hostile military activity during his documented Vietnam duty. Relevant to a diagnosis, the Board notes that there is conflicting evidence as to the current nature of the Veteran's psychiatric disorder. As indicated previously, the April 2009 VA examiner determined that the Veteran had adjustment disorder, with disturbance of conduct and dysthymia while Dr. M.L.C. determined that the Veteran's sole diagnosis was PTSD with the remainder of his symptoms, to include those associated with his previously diagnosed depressive disorder NOS, encompassed by such diagnosis. As the April 2009 VA examiner offered a circular and confusing statement regarding the Veteran's diagnosis, indicating that "the current Axis I condition does not meet the diagnostic criteria of PTSD according to DSM IV because he does not meet criteria," and, as noted by Dr. M.L.C., did not appear to have fully review the service records or adequately address the Veteran's alleged PTSD symptoms or the conflicting diagnoses noted in the VA treatment records, the Board accords no probative weight to such examination or opinion. Therefore, the Board finds that the Veteran's sole diagnosis is PTSD. Moreover, Dr. M.L.C. determined that the Veteran's aforementioned stressors related to his fear of hostile military activity coincident with his service in Vietnam are adequate to support a diagnosis of PTSD. Consequently, the Board finds that he as a current diagnosis of PTSD as a result of his in-service stressors and, therefore, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND As noted above, in a September 2012 rating decision, the RO denied service connection for diverticulitis and hypothyroidism; granted service connection and assigned 20 percent ratings for peripheral neuropathy of the right and left upper extremities, effective October 13, 2011; granted service connection and assigned a 0 percent rating for erectile dysfunction, effective October 13, 2011; awarded SMC based on the anatomical loss of a creative organ, effective October 13, 2011; continued the 20 percent rating for diabetes mellitus; and continued the 10 percent ratings for peripheral neuropathy of the right and left lower extremities. In September 2013, the Veteran submitted a notice of disagreement with the respect to the denial of service connection and increased rating denials, as well as the initially assigned ratings and effective dates for the newly awarded benefits. While it appears that the RO has acknowledged the notice of disagreement in a September 2013 letter, a statement of the case on such matters has not yet been issued. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on these issues is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes, however, these issues will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Provide the Veteran and his attorney with a statement of the case regarding the issues of entitlement to service connection for diverticulitis and a thyroid disorder; higher initial ratings for diabetic peripheral neuropathy of the right and left upper extremities and erectile dysfunction; effective dates prior to October 13, 2011, for the grant of service connection for diabetic peripheral neuropathy of the right and left upper extremities, erectile dysfunction and SMC; and increased ratings for diabetes mellitus, type II, and diabetic peripheral neuropathy of right and left lower extremities. Please advise them of the time period in which to perfect an appeal. If an appeal of these issues is perfected in a timely fashion, then return the case to the Board for its review, as appropriate. 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs