Citation Nr: 0721135 Decision Date: 07/13/07 Archive Date: 07/25/07 DOCKET NO. 03-04 522 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an increase in a 20 percent rating for diabetes mellitus. 3. Entitlement to an earlier effective date for the award of service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from September 1968 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 RO rating decision that reopened and denied the veteran's claim for service connection for PTSD and denied an increase in a 10 percent rating for diabetes mellitus. The veteran provided testimony at a personal hearing at the RO in April 2003. In a February 2005 decision, the Board reopened and denied the veteran's claim for service connection for PTSD and denied an increase in a 20 percent rating for diabetes mellitus. The veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2006, the parties (the veteran and the VA Secretary) filed a joint motion which requested that the Court vacate and remand that part of the Board's decision that denied service connection for PTSD and denied an increase in a 20 percent rating for diabetes mellitus. A June 2006 Court order granted the motion. The Board notes that in a January 2007 statement, the veteran's representative raised the issue of entitlement to service connection for peripheral neuropathy of the legs, claimed as secondary to the veteran's service-connected diabetes mellitus. In a January 2007 report of contact, the veteran raised the issue of entitlement to service connection for a heart disorder, claimed as secondary to his service- connected diabetes mellitus. Those issues are not before the Board at this time and are referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that there is a further VA duty to assist the veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e. under the criteria of DSM-IV]; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships 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). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather his alleged service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The Board notes that the veteran claims service connection for PTSD based on alleged stressors occurring during his period of service while serving in Vietnam. He has reported multiple stressors. For example, in his May 2002 PTSD Questionnaire, he stated that when he was assigned to Tan Son Nhut Air Base in Vietnam in December 1969, the lights went out all over the fire base. He reported that he was issued a machine gun with ammunition and told to guard the base perimeter over by the flight line and to shoot anyone who did not know the password when challenged. He stated that he became paralyzed with fear and felt completely alone. The veteran noted that while guarding the perimeter, he almost accidentally shot and killed a fellow serviceman. The veteran provided the names of three individuals who were present at that time. He also identified an additional in- service stressor of seeing cargo planes filled with the caskets of dead servicemen. Such stressors are generally not verifiable, but the veteran should be offered the opportunity to present buddy statements to corroborate his claim. In recent statements, the veteran has referred to additional stressors. In a January 2007 statement, the veteran reported that he was part of the ground crew at Tan Son Nhut Air Base during the Tet Offense, he remembered people yelling that their perimeter had been breached. He stated that he remembered that they got shelled in advance with mortars and rockets. The Board notes that an April 2004 response from the U.S. Army and Joint Services Environmental Support Group, presently designated as the U.S. Army and Joint Services Records Research Center (JSRRC), indicated that the historical report submitted for the veteran's unit, the 377th Combat Support Group, the higher headquarters of the 377th Civil Engineering Squadron, covering the period from October 1969 to December 1969, had been reviewed. It was noted that the history documented that there was one rocket attack against Tan Son Nhut during the quarter on December 19, 1969. The response also indicated that four rockets impacted no the base killing two Vietnamese and injuring ten Vietnamese and five Army personnel. It was noted that there were no Air Force casualties. The response indicated that the December 19, 1969 attack was unlike other rocket attacks as the impacts were clustered in the heavily populated area near Republic Avenue, the principle east-west artery in the southern portion of the base, rather than scattered over a large area. The Board observes that the veteran underwent a VA psychiatric examination in September 2002. At that time, he did not report stressors involving mortar and rocket attacks. The diagnoses included PTSD and alcohol abuse. The Board notes that the veteran has not been afforded a VA psychiatric examination with an etiological opinion provided after a review of the entire claims file as to his claim for service connection for PTSD. As to the veteran's claim for an increased rating for diabetes mellitus, the Board observes that the veteran was last afforded a VA diabetes mellitus examination in October 2003. The Board notes that the veteran has received treatment for diabetes mellitus subsequent to the October 2003 VA diabetes mellitus examination. Additionally, the June 2006 joint motion specifically indicated that the veteran should be provided with a new examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Since the Board has determined that a medical examination is necessary in the instant case, the veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with a claim for increase or a claim reopened after prior denial, the claim shall be denied. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the claims on appeal. Thus, on remand the RO should provide corrective VCAA notice. Finally, the joint motion for remand raises the issue of entitlement to an earlier effective date for the award of service connection for diabetes mellitus. The Board notes that the veteran filed a notice of disagreement in August 2003 as to a June 2003 RO decision, issued on June 11, 2003, that granted an earlier effective date of May 8, 2001, for service connection for diabetes mellitus. A statement of the case was issued in October 2003. No substantive appeal was received by June 11, 2004. Thus, the June 2003 decision on this issue is final. A June 18, 2004 RO memorandum indicated that no change was warranted in the previous June 2003 RO decision that granted an earlier effective date of May 8, 2001, for service connection for diabetes mellitus. In July 2004, the veteran's representative filed a vague VA Form 646 that mentioned the issue of entitlement to an earlier effective date, but provided no argument. However, construing the document liberally, the Board concludes that such constitutes a timely notice of disagreement with the June 18, 2004 decision by the RO, which included appellate rights with the notice. Accordingly, the Board is required to remand this issue to the RO for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claim should be returned to the Board only if the veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following: 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2002) are fully complied with and satisfied with respect to claim on appeal. The notice should include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice should also specifically notify the veteran that he may submit buddy statements in support of his stressors for his claim for PTSD. 2. Ask the veteran to identify all medical providers who have treated him for psychiatric problems and diabetes since December 2006. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. Specifically, VA treatment records since December 2006 should be obtained. 3. Schedule the veteran for a VA examination by a psychiatrist to determine whether he suffers from PTSD as a result of a confirmed service-related stressor, specifically the veteran's allegations of witnessing mortar and rocket attacks. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examination report should include a detailed account of all pathology found to be present. The report should include a complete rationale for all opinions expressed. All studies or tests deemed necessary should be accomplished. 4. Schedule the veteran for a VA diabetes examination to determine the severity of his service-connected diabetes mellitus. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All signs and symptoms of the service-connected diabetes mellitus should be reported in detail. The examiner should specifically indicate whether the veteran's diabetes mellitus requires regulation of his activities (avoidance of strenuous occupational and recreational activities) to control the disorder. 5. Thereafter, review the claims for entitlement to service connection for PTSD and for entitlement to an increase in a 20 percent rating for diabetes mellitus. If the claims are denied, issue a supplemental statement of the case to the veteran and his representative, and give an opportunity to respond before the case is returned to the Board. 6. Undertake all actions required by 38 C.F.R. § 19.26, including issuance of a statement of the case on the issue of entitlement to an earlier effective date for the grant service connection for diabetes mellitus, so that the veteran may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. 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. 2006). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006).