Citation Nr: 1028321 Decision Date: 07/29/10 Archive Date: 08/10/10 DOCKET NO. 08-11 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for Graves Disease, to include irregular heartbeat and fatigue, including as secondary to herbicide exposure. 2. Entitlement to an effective date prior to February 16, 2007 for service-connected prostate cancer, status post brachytherapy. 3. Entitlement to a compensable rating for service-connected prostate cancer, status post brachytherapy. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. G. Alderman INTRODUCTION The Veteran had active service from October 1967 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) in May 2010. A transcript of the hearing has been associated with the claims file. The issue of entitlement to a compensable rating for service- connected prostate cancer, status post brachytherapy, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Graves Disease did not have onset during service or within one year of separation from service, and is not otherwise related to service, including exposure to herbicides. 2. The Veteran was diagnosed with prostate cancer in January 2006. 3. The Veteran filed his service-connection claim for prostate cancer on February 16, 2007. CONCLUSIONS OF LAW 1. Service connection for Graves Disease is not warranted. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1132, 1137, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. There is no legal entitlement to an effective date earlier than February 16, 2007 for the award of service connection for prostate cancer, status post brachytherapy. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.157, 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 113; 38 C.F.R. § 3.303(a). In general, service connection requires (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third Caluza elements discussed above. Savage, 10 Vet. App. at 495- 496. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee, 34 F.3d at 1043 (Fed. Cir. 1994). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure of humans to an herbicide agent and the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1). If a veteran was exposed to an herbicide agent during active military service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (2007). Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the Veteran seeks service connection for Graves Disease with irregular heartbeat and fatigue, to include as secondary to herbicide exposure. The evidence shows that the Veteran served in Vietnam and that VA has already conceded the Veteran's exposure to herbicides; unfortunately Graves Disease is not listed as one of the disabilities subject to presumptive service connection based upon herbicide exposure. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Consequently, service connection for Graves Disease cannot be granted on a presumptive basis and the Board must consider the issue on a direct basis. Review of the service treatment records (STRs) fails to show treatment or diagnosis of Graves Disease or symptomatology during active service. Records dated subsequent to service include a letter from Dr. C.D.C., MD and private treatment records dated June 1992, which appear to provide the initial diagnosis of Graves Disease. The records do not indicate any relationship between Graves Disease and the Veteran's active service or his exposure to herbicides, weighing against the claim for service connection. It is noted that the initial diagnosis was rendered almost 22 years after separation from service, further weighing against the claim for service connection. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). Also of record are treatment records from 2004 to 2008 from various private treatment providers, which indicate, at most, a history of Graves Disease. Unfortunately, the treatment records do not show that the Graves Disease had onset during (or is in any way related to) the Veteran's active service or his herbicide exposure, weighing against the claim. The Board also considered the Veteran's testimony and statements. Specifically, the Veteran testified that his Graves Disease could be related to herbicide exposure because other autoimmune diseases have been linked with it. He also stated that he has no family history of the disease. Initially, with regard to lay statements, the Board has to make two separate determinations. First, is the lay person competent to make the statements, and if competent, are the statements credible. Barr v. Nicholson, 21 Vet.App. 303, 308 (2007) ("Once evidence is determined to be competent, the Board must determine whether such evidence is also credible."). According to this Court, competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet.App. 24, 25 (1991). In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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. In footnote 4 of Jandreau, the Federal Circuit provided additional guidance as to when lay evidence is competent, giving the example that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical question such as a form of cancer. This indicates to the Board that the complexity of the question at issue is a factor to be considered when determining if a layperson's opinion is competent evidence. In this case, the Veteran is competent to report symptoms of Graves Disease because this requires only personal knowledge as it comes to him through his senses. Unfortunately, the Veteran is not competent to provide credible opinions relating his Graves Disease to service or his herbicide exposure as these relationships cannot be determined by observation alone. It is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his Graves Disease is not competent evidence and is of low probative weight. In sum, the medical evidence does not support the Veteran's claim that his Graves Disease was incurred in or aggravated by his military service, including especially that it is the result of exposure to herbicides in Vietnam. The only evidence of a nexus between the condition and service and herbicide exposure is the Veteran's unsubstantiated lay allegation, but as a layman, without any medical training and/or expertise, he simply is not qualified to render this kind of medical opinion. Instead, he is only competent to comment on symptoms he may have experienced during and since service, but not on the etiology of his symptoms in terms of whether they are associated with herbicide exposure. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310. See also 38 C.F.R. § 3.159(a)(2); Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency "a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for Graves Disease, with associated fatigue and irregular heartbeat. The evidence shows no competent and credible nexus between the Veteran's condition and his active service or his exposure to herbicides. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). The appeal is denied. Effective Date In this case, the Veteran seeks an effective date prior to February 16, 2007 for service connection for prostate cancer, status post brachytherapy. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). VA treatment records show that the Veteran was diagnosed with prostate cancer on January 27, 2006. The Veteran filed his claim for service connection for prostate cancer on February 16, 2007. Based on the evidence, it appears that entitlement to service connection arose January 27, 2006, the date of diagnosis; however, because the date of filing was later, the effective date for service connection is the date of claim, February 16, 2007. Accordingly, an effective date prior to February 16, 2007 is not warranted for service-connection for prostate cancer. The Board finds not basis to award the Veteran an effective date prior to his claim. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54- 56 (1990). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a VA examination was not ordered for the service connection claim for Graves Disease as there is no competent and credible evidence of a possible nexus between the disability and service or exposure to herbicides. As noted above, the STRs fail to indicate treatment or diagnosis of the disease, the disease was diagnosed almost 22 years after separation from service, and medical treatment records fail to indicate that the disease was (or may have been) caused by service or exposure to herbicides. Therefore, a VA examination was not warranted on this issue. A VA examination was conducted in conjunction with the service connection claim for prostate cancer. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained private treatment records and the Veteran provided written statements and a supporting statement from his spouse. He was also provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for Graves Disease is denied. Entitlement to an effective date prior to February 16, 2007 for service-connected prostate cancer, status post brachytherapy is denied. REMAND The Veteran seeks a compensable rating for his service-connected residuals of prostate cancer, status post brachytherapy. During his testimony before the Board, the Veteran indicated that his voiding frequency, a residual of his service-connected prostate cancer, has worsened. In support of his allegation, the Veteran submitted a statement from his spouse that describes his increased symptoms. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since his previous examination, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Given the foregoing, the Veteran should be scheduled for VA examination to determine the current nature and severity of the residuals of his service-connected prostate cancer, status post brachytherapy. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his residuals of service-connected prostate cancer, status post brachytherapy. The claims file should be made available for review and the examiner should indicate review of the claims file in the examination report. The examiner should specifically address: voiding dysfunction in terms of daytime and nighttime frequency; indication of voiding dysfunction which requires the use of absorbent materials; and the frequency and severity of any urinary tract infections. If the Veteran has voiding dysfunction that requires the use of absorbent materials, these determinations should be expressed in terms of rate at which the absorbent materials must be changed on a per-day basis. If the Veteran has voiding dysfunction productive of urinary frequency, the examiner is asked to describe the daily frequency of daytime and nighttime voiding. Any other problems associated with this disability should be noted. All indicated tests and studies are to be performed. 2. Thereafter, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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. 2009). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs