Citation Nr: 20025757 Decision Date: 04/14/20 Archive Date: 04/14/20 DOCKET NO. 18-17 123 DATE: April 14, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for Hepatitis C is remanded. Entitlement to a disability rating in excess of 10 percent for diabetes mellitus type II prior to April 30, 2013, and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1969 to August 1971. In October 2019, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran’s and the Secretary’s joint motion for an order vacating and remanding the April 2019 Board decision that dismissed the Veteran’s claims for entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and PTSD; a sleep disorder; Hepatitis C; and entitlement to a disability rating in excess of 10 percent for diabetes mellitus type II. The parties agreed that the Board erred in failing to provide an adequate statement of reasons or bases for dismissing the claims. In reviewing the procedural history pertinent to the issues on appeal, a September 2013 rating decision denied entitlement to service connection for an acquired psychiatric disorder (to include PTSD, depression, panic attacks, and/or anxiety), a sleep disorder, and Hepatitis C, and awarded service connection for diabetes mellitus type II with an evaluation of 10 percent. The Veteran, through his former agent, submitted a timely notice of disagreement received by VA on October 1, 2013. A statement of the case was mailed on January 30, 2018. In an April 2018 letter, the agency of original jurisdiction (AOJ) informed the Veteran that his timely substantive appeal (VA Form 9) received by VA on March 21, 2018 could not be located. In May 2018, the Veteran’s appeal was certified to the Board for the issues of entitlement to service connection for an acquired psychiatric disorder, a sleep disorder, Hepatitis C, and entitlement to an increased rating for diabetes mellitus type II. Although the Veteran’s timely submitted VA Form 9 is not of record because it was lost by VA, the AOJ accepted his substantive appeal and certified the issues to the Board. Given the circumstances described above, the Board will accept the Veteran’s substantive appeal as timely. 1. Acquired Psychiatric Disorder In February 2012, the Veteran filed a claim for entitlement to service connection for depression and PTSD, which has been expanded to include entitlement to any acquired psychiatric disorder. See February 2012 VA Form 21-526; see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In support of his claim, the Veteran submitted statements from family members indicating that since returning from service in Vietnam, the Veteran has had continuous symptoms of anger and depression. See June 2012 statement from Ms. V.H. and Ms. S.H. Ms. S.H. indicated that over the years the Veteran has tried to cope on his own with traumatic events he experienced in Vietnam, including the loss of friends in combat, witnessing death, near death experiences, and providing aid to wounded service members wounded. See also June 2012 VA Form 21-0781a; see also November 2012 VA Form 21-4138. Ms. S.H. indicated the Veteran was reluctant to seek or receive treatment for mental health, and that she believed the Veteran concealed mental health problems that he didn’t know how to bring up without becoming agitated. The Veteran’s personnel records document the Veteran’s specialty as “rifleman” in the United States Marine Corps, and service personnel records document the Veteran participated in multiple combat operations during his service in Vietnam from January 1970 to January 1971. See Combat History reported on NAVMC 118(9); see also July through December 1970 Command Chronologies. In a December 2012 VA comprehensive assessment, the Veteran had positive depression and PTSD screenings. The Veteran was afforded a VA PTSD examination in August 2013. The examiner indicated the Veteran did not have a diagnosis of PTSD or any other mental disorder. The examiner indicated the traumatic events reported by the Veteran met the criteria to support a diagnosis of PTSD, but that the Veteran did not demonstrate any symptoms of PTSD. In February 2020 correspondence from the Veteran, he reported that he felt detached from others, that he was unable to open the blinds or curtains in his home due to being paranoid of what may be outside. The Veteran reported he was disturbed by loud noises and bright lights, that he had difficulty concentrating or handling more than one task at a time. The Veteran reported he constantly thought about losing members of his family, and that he avoided leaving his home. The Veteran reported he experienced flashbacks. The Veteran reported he was unable to disconnect from the Vietnam War, and that he watched war movies and documentaries daily. Notably, the Veteran provided VA treatment records documenting a diagnosis of major depressive disorder in June 2019. Additionally, in information submitted with the Veteran’s February 2020 correspondence, he provided a VA website that noted Veterans who served on active duty at Marine Corps Base Camp Lejeune for 30 days or more between August 1953 and December 1987 may be eligible for VA health benefits for qualifying health conditions related to potential chemical exposure at Camp Lejeune, including neurobehavioral effects. Along with the information pertaining to health conditions related to potential exposure to chemicals at Marine Corps Base Camp Lejeune, the Veteran submitted service personnel records documenting that he was stationed at Camp Lejeune before and after his combat service in Vietnam. Since the statement of the case was issued in January 2018, it appears that relevant VA treatment records indicate the Veteran has been receiving mental health treatment. The Board finds remand is necessary to obtain any outstanding private and VA treatment records, and to afford the Veteran a VA examination. 2. Sleep Disorder In October 2012, the AOJ expanded the Veteran’s February 2012 service connection claim for a mental disorder to include a separate claim for entitlement to service connection for a sleep disorder. See October 2012 VCAA letter; see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (VA must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim). In this regard, the Veteran reported he needed Tylenol PM to sleep at night. See June 2012 VA Form 21-0781a; see also January 2013 VA Form 21-4138. In recent VA treatment records that were submitted by the Veteran in support of his appeal, a June 2018 VA hepatology progress note indicated the Veteran has difficulty with his sleep-wake cycle. See also February 2020 correspondence from the Veteran. The Board finds remand is necessary as relevant VA treatment records have been associated with the claims file since the January 2018 statement of the case, and to afford the Veteran a VA examination to assess the nature and etiology of his claimed sleep disorder. 3. Hepatitis C The Veteran seeks entitlement to service connection for Hepatitis C. See February 2012 VA Form 21-526. In a June 2012 statement from the Veteran’s spouse, she reported that she sought emergency assistance in March 2002 because the Veteran was demonstrating flu-like symptoms, including chills, fever, and his leg turned fire red. The Veteran’s spouse reported that the Veteran was transported to the hospital, and follow-on testing revealed the Veteran’s liver enzymes were high. The Veteran’s spouse reported the Veteran was referred to a specialist who informed them the Veteran had Hepatitis C. In a June 2012 “Risk Factors for Hepatitis Questionnaire,” the Veteran reported that hair clippers in boot camp were not sterilized between use, nor were the air guns used for inoculations. Additionally, the Veteran reported that he assisted corpsmen in providing aid to service members wounded in combat. The Board finds the Veteran competent and credible to report that he was exposed to blood and bodily fluids while serving as a rifleman in Vietnam, to include in providing aid to wounded service members. See 38 U.S.C. § 1154. In a March 2013 VA hepatology progress note, the provider noted the Veteran’s risk factors for Hepatitis C included air gun vaccinations and combat blood exposure. The Veteran was afforded a VA examination in August 2013. The examiner opined the Veteran’s Hepatitis C was less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner’s rationale for the negative medical opinion was that the 40-year time gap between the Veteran’s separation from service in August 1971 and the mention of Hepatitis C in VA treatment records did not establish a longitudinal trend of subjective complaints and objective findings. In response to the September 2013 rating decision that denied entitlement to service connection for Hepatitis C, the Veteran’s former agent stated that there was no test for Hepatitis C at the time of the Veteran’s separation from service, and that the Veteran was exposed to blood and other bodily fluids while serving with a unit that engaged the enemy in a combat zone in Vietnam. See October 2013 notice of disagreement. Along with the notice of disagreement, the Veteran’s former agent provided an online medical article that suggests people with Hepatitis C often have no symptoms, and many people can live with an infection for decades without feeling sick. Additionally, an excerpt was submitted indicating that diagnostic testing for Hepatitis C was not developed until the late 1980’s. The Board finds the August 2013 VA medical opinion is not supported by a clinical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion). The Board finds remand is necessary to afford the Veteran a new VA examination that addresses the Veteran’s contentions. The examiner should assume as true that the Veteran was exposed to blood and other bodily fluids in combat as he so describes. Additionally, on remand, the examiner should consider and discuss the articles submitted with the Veteran’s October 2013 notice of disagreement. 4. Diabetes Mellitus Type II In a September 2013 rating decision, the Veteran was awarded service connection for diabetes mellitus type II associated with herbicide exposure with an evaluation of 10 percent from February 15, 2012. The Veteran, through his former agent, asserted that he should have been assigned an initial evaluation of 20 percent for diabetes mellitus type II requiring an oral hypoglycemic agent and restricted diet. See October 2013 notice of disagreement; see also 38 C.F.R. § 4.119, Diagnostic Code 7913. In a February 2018 rating decision, the AOJ increased the evaluation of the Veteran’s service-connected diabetes mellitus type II from 10 percent to 20 percent, effective April 30, 2013. The February 2018 rating decision, which assigned a higher evaluation for diabetes mellitus type II for separate periods during the appeal period, does not constitute a full grant of the Veteran’s appeal. Additionally, the Veteran has not expressed satisfaction with the 20 percent disability rating assigned from April 30, 2013. As the Veteran is presumed to seek the maximum available benefit for a disability, and as higher ratings for diabetes mellitus type II are available during the period on appeal both before and after April 30, 2013, the claim for a higher rating remains viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In consideration of the Veteran’s assertion that his diabetes is more severe than reflected by the evaluations assigned, the Board observes that the Veteran reportedly required oral hypoglycemic agent and restricted diet to manage his diabetes mellitus type II when it was initially diagnosed following a hospitalization in 2002. See June 2012 statement from S.H. It appears the Veteran, as opposed to a medical professional, reported he was able to manage his diabetes without medication, through strict diet and regular exercise. The Board notes the Veteran also reported that he had not seen a physician since 2002. See also May 2012 Diabetes Herbicide Presumption – Physician’s Statement. On VA examination in April 2013, the examiner noted that diagnostic testing was indicative of poor glucose control. Such evidence appears to suggest that the Veteran’s diabetes was not managed by restricted diet only. Additionally, although the April 2013 VA examiner reported regulation of activities was not required, the examiner also reported that the Veteran’s diabetes mellitus type II and/or associated conditions/complications limited the Veteran’s physical exertion. See also February 2017 VA examination (indicating Veteran was not able to engage in employment that required prolonged standing or walking). Given the medical and lay evidence of record, the Board finds remand is necessary for the issue of entitlement to a disability rating in excess of 10 percent for diabetes mellitus type II prior to April 30, 2013, and in excess of 20 percent thereafter. On remand, the Veteran should be afforded a new VA examination to address his assertion that his diabetes mellitus type II is more severe than reflected by the disability ratings assigned. The matters are REMANDED for the following action: 1. With any assistance needed from the Veteran, request and obtain any outstanding private treatment records related to the issues on appeal. Additionally, obtain any outstanding VA treatment records from November 2017 to the present, and associate them with the claims file. 2. Schedule the Veteran for the appropriate VA examination to assess the nature and etiology of any acquired psychiatric disorder. Upon review of the record, interview and examination of the Veteran, the examiner should: (a.) Identify any current acquired psychiatric disorder. (b.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that any identified acquired psychiatric disorder had onset in or is otherwise related to service, to include fear of hostile military activity. (c.) Opine as to whether it is at least as likely as not (50 percent or greater probability) that any identified acquired psychiatric disorder was caused by or is otherwise related to potential exposure to chemicals/contaminated water at Marine Corps Base Camp Lejeune. All medical opinions should be supported by a clinical explanation or rationale. 3. Schedule the Veteran for the appropriate VA examination to assess the nature and etiology of his claimed sleep disorder. Upon review of the record, interview and examination of the Veteran, the examiner should: (a.) Identify any diagnosed sleep disorder. (b.) Opine as to whether it is at least as likely as not (50 percent or greater probability) any identified sleep disorder had onset in, or is otherwise related to service. (c.) Opine as to whether it is at least as likely as not (50 percent or greater probability) any identified sleep disorder was caused or aggravated beyond natural progression by a service-connected disability. All medical opinions should be supported by a clinical explanation or rationale. 4. Schedule the Veteran for the appropriate VA examination to assess the nature and etiology of his Hepatitis C. Upon review of the record, interview and examination of the Veteran, the examiner should opine as to whether the Veteran’s Hepatitis C had onset in, or is otherwise related to service. The examiner should consider and discuss the Veteran’s identified in-service risk factors, including exposure to blood from wounded soldiers, air gun vaccinations, as well as the Veteran’s report of shared hair clippers in boot camp. Additionally, the examiner should consider and discuss the medical articles associated with the Veteran’s October 2013 notice of disagreement suggesting people can live with Hepatitis C for decades without feeling sick, and that a diagnostic test was not developed until the late 1980’s. All medical opinions should be supported by a clinical explanation or rationale. 5. Schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected diabetes mellitus type II. 6. Readjudicate the appeal. If the benefits sought remain denied, issue the Veteran a supplemental statement of the case and inform the Veteran of his appeal options. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.