Citation Nr: 1018309 Decision Date: 05/17/10 Archive Date: 06/04/10 DOCKET NO. 04-22 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to December 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In January 2007, the Board remanded the claims for further development. The Board notes that VA treatment records contain diagnoses of various psychiatric disorders. The United States Court of Appeals for Veterans Claims (Court) has held that VA should consider alternative psychiatric disorders within the scope of an initial claim for service connection for a specific psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, however, the appellant has specifically limited his claim to the issues of entitlement to service connection for PTSD. He has not requested entitlement to service connection for all psychiatric symptomatology. Moreover, at this juncture, there is no competent evidence linking any diagnosed psychiatric disorder to service. Therefore, because the Veteran clearly limited his current claim to only service connection for PTSD, and not for any other psychiatric disorder, the Board's jurisdiction is limited. 38 U.S.C.A. § 7105 (West 2002). If the appellant wishes to file a claim of entitlement to service connection for a psychiatric disorder other than PTSD, he must file such a specific claim with the RO. FINDINGS OF FACT 1. The Veteran has not been diagnosed with PTSD based on an independently verified in-service stressor. 2. The appellant's active military service, which included duty on board the USS Sproston (DD-577) off the coast of Vietnam during 1966 and 1967, did not include duty in, or visitation to, the Republic of Vietnam. 3. There is no competent or credible evidence of a nexus between the post-service diagnosis of bilateral lower extremity peripheral neuropathy and service, to include exposure to Agent Orange. 4. A disorder which is due to alcohol abuse is the product of willful misconduct. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2009). 2. Bilateral lower extremity peripheral neuropathy was not incurred or aggravated while on active duty, and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 105, 1101, 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304, 3.307, 3.309(e) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April and May 2003, January 2004, February, April, and September 2007, September and December 2008, and August and December 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In April 2007, September 2007, and September 2008 correspondence the RO notified the appellant that he may submit alternative forms of evidence in support of his claim for PTSD secondary to personal assault. He was asked to provide more detailed written statements regarding the alleged sexual assault. In a December 2009 correspondence, the RO asked the claimant to detail any service on land in the Republic of Vietnam. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims being adjudicated to the extent possible, and, as warranted by law, afforded a VA examination. The RO obtained the Veteran's service treatment and personnel records, and VA treatment records. The appellant submitted private treatment records. Pursuant to the remand, the RO obtained Social Security Administration records. The RO submitted the claimant's in-service stressor to the proper agencies in an attempt to verify it. The RO prepared a memorandum in December 2009 indicating why a search of the Sproston's deck logs could not be conducted. The RO did not obtain Vet Center records. In light of the fact that the PTSD claim turns on whether there is corroborating evidence of the appellant's alleged in-service stressor, that error is harmless. The RO afforded the Veteran VA PTSD and peripheral neuropathy examinations in May 2003, but in the absence of a verified stressor or evidence that the appellant set foot on land in the Republic of Vietnam, additional VA examinations are unnecessary. VA did not obtain a medical opinion in connection with his claim of entitlement to service connection for bilateral lower extremity peripheral neuropathy. The Board finds that a medical opinion was not necessary to decide the merits of this claim. Under the VCAA, VA is obliged to provide a medical opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Admittedly, the threshold for the duty to provide a medical opinion is rather low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, however, the evidence of record is sufficient to decide the claim of entitlement to service connection for bilateral lower extremity peripheral neuropathy. There is no evidence that the Veteran set foot on land in the Republic of Vietnam. The Veteran's service treatment records do not show a diagnosis of lower extremity peripheral neuropathy, and the competent medical evidence of record preponderates against finding that lower extremity peripheral neuropathy is related to active service. In light of the absence of competent medical evidence showing that lower extremity peripheral neuropathy, or signs and symptoms of that disability may be associated with active service, there is no reason for VA to obtain an opinion in connection with this claim. There is not a scintilla of evidence that any VA error in notifying or assisting the Veteran reasonably affects the fairness of this adjudication. Entitlement to service connection for PTSD. Governing law and regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In non-combat cases of PTSD involving an allegation of personal assault, more particularized requirements are established to verify whether the alleged stressor actually occurred. See Patton v. West, 12 Vet. App. 272, 278-80 (1999). In this regard, evidence from sources other than the Veteran's service records may corroborate the appellant's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and/or statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is another type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to, a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). Analysis Since the Veteran filed his claim in July 2002, he has alleged that his PTSD is solely due to an in-service sexual assault. Therefore, the Board will limit its review to that in-service stressor alone. The Board notes, however, that there is no evidence showing that posttraumatic stress disorder is due to any independently verified in-service stressor. The Veteran alleges that he has PTSD as a direct result of being the victim of a sexual assault carried out by fellow American servicemen between September and December 1965 in Subic Bay, Philippines while on shore leave from the USS Sproston. See PTSD Questionnaires, received by VA in May and July 2003; see also May 2006 addendum to a January 2002 VA National Center for PTSD assessment. Later, in a May 1997 statement, the appellant said that the assault occurred in 1966. In an October 2008 stressor statement, the claimant acknowledged that he did recall the exact date of the assault. In the January 2002 PTSD assessment by the VA National Center for PTSD, the Veteran reported that the assault happened within a few months of his service entrance. There is no evidence corroborating the Veteran's assertion of an in-service sexual assault at any time during his military service. His service treatment and personnel records are completely negative for evidence of such an incident, and he has not supplied alternative evidence, such as statements from former fellow sailors, setting forth the details of the traumatic event. The appellant acknowledges that he decided not to seek medical treatment after the alleged assault. See hearing transcript, page 13. The claimant also reported in a May 2007 statement that he told no one about the assault. Thus, there is no record of the assault. The U.S. Army and Joint Services Records Research Center (JSRRC) (formerly U.S. Armed Services Center for Unit Records Research (CURR)) in March 2009 stated that the stressor could not be researched. In December 2009, the Naval Criminal Investigative Service indicated that there was no record of an investigation. Personnel records on file show that the Veteran was found guilty of being drunk and disorderly in March 1967 while on liberty in Yokosuka, Japan. Another record shows that while on liberty in Honolulu, Hawaii in October 1967 he was drunk while in uniform. While it is possible that he was arrested by Shore Patrol following the alleged assault and that the command of the USS Sproston chose not to prosecute the offense, there is no evidence of any non judicial punishment for being drunk or out of uniform in 1965. The service personnel records reflect that the claimant's enlisted performance ratings for military behavior essentially remained constant between the time of the alleged 1965 assault and March 1967. Beginning in March 1967, the appellant is shown to have begun to have disciplinary-related problems, primarily related to alcohol abuse. This evidence shows that there was no behavior changes immediately after the alleged assault. Significantly, the medical records reveal that the Veteran did not give a history of a sexual assault until 2002, the year in which he filed his claim. In fact, VA treatment records reflect that the appellant was reporting only a combat stressor in 2001. Private treatment records from Dr. Myers dated in 1983 shows that the claimant only had symptomatic anal fissures for the past three to four years. There is no indication in those records, however, that the anal fissures were due to a sexual assault. While VA treatment records, the May 2003 VA PTSD examination report, and 2004 statements from VA medical providers show a diagnosis of military-sexual-assault-related PTSD, that diagnosis is not based upon an independently-verified stressor. The May 2003 VA examiner stated that the Veteran used "alcohol abuse as an avoidance strategy." See May 2003 VA PTSD examination report, page 4. The Board places greater weight on the service personnel records showing no history of alcohol abuse until March 1967, over a year after the alleged assault, than on the VA examiner's determination that alcohol abuse was a result of an in-service assault. More significantly, even assuming that the Veteran began drinking to cope with, or avoid thinking about the purported sexual assault, there is absolutely no corroborating evidence that the assault even took place. The fact that the appellant did not claim a history of being assaulted until decades postservice and just a few years before filing a claim for monetary benefits raises grave and profound doubts about his credibility, let alone the veracity of his account. While the Veteran is competent to report his own experience, the Board may consider his personal interest in the outcome of a case when evaluating his credibility. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may be found to affect the credibility of testimony.) Taken together, the evidence preponderates against finding evidence verifying that the alleged stressor actually occurred. The only evidence to the contrary comes from the Veteran. As noted above, his uncorroborated statements, by themselves, are not sufficient. Absent credible corroborating evidence that the claimed in-service stressor actually occurred, the appellant cannot meet the criteria for service connection for PTSD. Accordingly, service connection is not warranted. The claim is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to herbicide exposure. Governing law and regulations Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during such service to herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to herbicide agents shall be the last date on which he served in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases includes acute and subacute peripheral neuropathy. 38 C.F.R. § 3.309(e). Analysis Personnel records show that the Veteran served on the USS Sproston from September 1965 to November 1967. There is no evidence that the USS Sproston ever came to port or had members disembark on the shore of Vietnam. Indeed, he testified that he never went ashore in Vietnam. See hearing transcript, page 9. Rather, a statement received in May 2003 reflects that the Veteran is claiming that his ship was a mile off the shore of Vietnam and that he was exposed to Agent Orange via the outside air. As the claimant did not serve on the land mass of the Republic of Vietnam, he is not entitled to the presumption that he was exposed to an herbicide agent during service. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). With regard to the Veteran's assertion that he was exposed to Agent Orange solely by breathing the air off the shore of Vietnam, the appellant does not have the scientific knowledge to opine the nature of particles in the air. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, he is not competent to render an opinion regarding what toxins were in the air off the shore of Vietnam in 1966 and 1967. An April 2003 VA vascular study report contains a comment that the Veteran has peripheral neuropathy from Agent Orange. It is evident that this notation is merely a history offered by the appellant alone. This negates its probative value because a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In short, there is no competent evidence showing that the Veteran was exposed to Agent Orange. The Board has reviewed all service treatment records, all VA treatment records dated from 1969 to 2007, private medical records dated from 1986 to 1987, Social Security Administration records, as well as the May 2003 VA peripheral nerves examination report. These records do not include any opinion linking lower extremity peripheral neuropathy to service. These records also do not reveal any competent evidence of lower extremity peripheral neuropathy during service or within a year of the Veteran's separation from active duty. Significantly, no service treatment record, including the separation examination, contains a diagnosis of lower extremity peripheral neuropathy. A report of a VA May 1991 VA electromyography shows an impression that the peripheral neuropathy is probably due to a history of heavy alcohol use in the past. The service personnel records show that the appellant abused alcohol in service. Such use of alcohol cannot be the basis of a grant of service connection. In this regard, no compensation shall be paid if the disability resulting from injury or disease in service is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 C.F.R. § 3.301. The only evidence of record supporting the claim that peripheral neuropathy of the lower extremities is due to service are the statements of the Veteran. Peripheral neuropathy is a disability for which lay evidence of etiology is not competent nexus evidence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His lay opinion does not constitute competent medical evidence and lacks probative value. Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). There is competent evidence that the Veteran now has lower extremity peripheral neuropathy; however, without competent evidence linking that disorder to service, the benefit sought on appeal cannot be granted. Therefore, the claim is denied. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to herbicide exposure, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs