Citation Nr: 1411687 Decision Date: 03/20/14 Archive Date: 04/02/14 DOCKET NO. 10-34 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, to include as due to exposure to herbicides during service. 2. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides during service. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In June 2009, the RO denied the Veteran's claim for service connection for diabetes mellitus, to include as due to exposure to herbicides during service. In July 2010, the RO denied the Veteran's claim for ischemic heart disease, to include as due to exposure to herbicides during service. In January 2013, the Board remanded the claims for additional development. FINDINGS OF FACT 1. The evidence of record does not show that Veteran has diabetes mellitus that is related to active duty service. 2. The evidence of record does not show that Veteran has heart disease that is related to active duty service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in, or as a result of, active duty service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. Heart disease was not incurred in, or as a result of, active duty service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that he is entitled to service connection for diabetes mellitus, and heart disease. Specifically, he has argued that he has these disabilities due to exposure to Agent Orange during service in Vietnam. With regard to exposure to Agent Orange, the Veteran has asserted that he was in Vietnam on multiple occasions. See Veteran's stressor statement (VA Form 21-0781), received in January 2010 (in which he reported a stressor of "Flying in and out of Southeast Asia had to go to Vietnam for stops and always worried about being mortared or shot at while on ground and taking off or landing."). In another instance, he reported deplaning in Vietnam during a stopover. See statement received in March 2010 (claiming a stopover at Tan Son Nhut, Vietnam, on a flight from the Clark Air Force Base in the Philippines to George Air Force Base in California). He has also asserted that he had Agent Orange exposure in both Thailand and Korea. See "statement in support of claim" (VA Form 21-4138), received in January 2010 (reporting service at Ubon Air Force Base in Thailand, and in Korea between January and August of 1968); Veteran's statement, received in March 2010 (reporting being on TDY (temporary duty) in Korea between January and August of 1968); "statement in support of claim" (VA Form 21-4138), received in May 2010 (reporting service in Korea); cf. Veteran's claim (VA Form 212-526) received in January 2009 (denying service in Vietnam). Notwithstanding the characterization of one of the claims as a claim for "ischemic heart disease," the Board has construed the Veteran's claim broadly, as a claim for any type of heart disease. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for cardiovascular-renal disease, to include hypertension, and diabetes mellitus, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following 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: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). Recently, changes have been made to the regulation for presumptive service connection for veterans shown to have been exposed to Agent Orange. See 75 Fed. Reg. 14391 (March 25, 2010); 38 C.F.R. § 3.309(e). These changes add ischemic heart disease, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," and Parkinson's disease, as presumptive disorders. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment reports do not show treatment for, complaints of, or a diagnosis involving, heart symptoms, or diabetes mellitus. The Veteran's separation examination report, dated in August 1968, shows that his heart, and endocrine system, were clinically evaluated as normal. Urinalysis was negative for sugar. In an associated "report of medical history," he denied having a history of pain or pressure in his chest, or "palpitation or pounding heart." As for the post-service medical evidence, it consists of VA reports, dated in 1985, and between 2001 and 2010. This evidence includes an October 2001 VA progress note which shows that the Veteran reported a two-year history of diabetes mellitus, that he smoked, and that his brother and sister both had diabetes. The assessments were diabetes mellitus, and borderline hypertension. A January 2002 VA progress note contains impressions of diabetes mellitus, not controlled, and stable hypertension. A February 2002 VA progress note contains an impression of non-insulin dependent diabetes mellitus. An April 2002 report notes diabetes mellitus coming under better control, and resolved chest pain with persistent tachycardia. Thereafter, VA progress notes show that the Veteran received ongoing treatment for diabetes mellitus, and that there were multiple notations of hyperlipidemia. Reports, dated in February and March and October of 2005, note that he was still smoking. A December 2006 report notes that he was smoking two to three packs of cigarettes per week. "Problem lists" in VA progress notes, dated beginning in 2008, include notations of a history of tobacco use disorder. An April 2009 progress note indicates that he smoked one pack of cigarettes per day. A June 2009 report notes that he did not have a previous history of congestive heart failure, myocardial infarction, or cardiac catheterization, but that he had a family history of CAD (coronary artery disease) and one-vessel CAD with 100 percent chronic total occlusion of mid-LAD (left anterior descending artery), and a failed attempt at PCI (percutaneous coronary intervention). Reports, dated in November 2010, show that the Veteran received emergency room treatment for complaints of chest pain. The reports contain assessments of atypical chest pain, rule out myocardial infarction, essential hypertension, dyslipidemia, diabetes mellitus, and cigarette smoking, and note a history of single-vessel CAD, mid-LAD by cardiac catheterization in 2009, and an unsuccessful PCI attempt. The Board finds that the claims must be denied. Service treatment reports do not show treatment for, complaints of, or a diagnosis involving heart disorder, or diabetes mellitus. His August 1968 separation examination report shows that his heart, and endocrine system, were clinically evaluated as normal. Urinalysis was negative for sugar. In an associated "report of medical history," the Veteran indicated that he did not have a history of pain or pressure in his chest, or "palpitation or pounding heart." Given the foregoing, and a chronic condition is not shown during service. See 38 C.F.R. § 3.303(b). The earliest post-service medical evidence of either of the claimed conditions is dated in 2001. This is about 42 years following separation from service. The Veteran has been found not to be a credible historian (discussed infra), and this lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, there is no competent medical evidence to show that either of the claimed conditions are related to service on a direct or presumptive basis (i.e., not involving exposure to herbicides). Finally, there is no medical evidence to show the existence of either cardiovascular-renal disease, to include hypertension, or diabetes mellitus, to a compensable degree within one year of separation from service. Accordingly, the claims must be denied. With regard to the possibility of service connection based on exposure to Agent Orange, in June 2010, the RO issued a memorandum in which it determined that the Veteran's claimed service in Vietnam could not be verified. In January 2013, the Board remanded the claim. The Board noted the following: The Veteran's official service department records show that he had service with the 8th FM Sq(uadron), Ubon, AFD, Thailand (PACAF), between January 31, 1966 and January 31, 1967, with a duty title of jet engine mechanic. There is no indication of service in Korea or Vietnam, with one exception, noted infra. In March 2009, the RO attempted to verify the Veteran's claim of exposure to Agent Orange while in Thailand with VA's Compensation and Pension service (VAVBAWAS/CO/211/AGENTORANGE). A memorandum, titled "Herbicide use in Thailand during the Vietnam Era," apparently received that same month, essentially states that there are no records to show use of tactical (i.e., non-commercial) herbicides in Thailand after 1964, but that in some cases an additional attempt to verify exposure to Agent Orange with the JSRRC (U.S. Army and Joint Services Records Research Center) may be warranted. The provisions of the VA Adjudication Procedure Manual, M21-1MR provide the specific steps necessary in verifying herbicide exposure on a factual basis in locations other than the Republic of Vietnam. Specifically, Part IV, subpart ii.2.C.10.o. states that if a veteran alleges exposure in other locations, the RO must ask the veteran for the approximate dates, location, and nature of the alleged exposure. See VA Manual M21-1MR, Part IV, subpart ii, 2.C.10.o. If such information is received, the RO must furnish the Veteran's detailed description of exposure to Compensation Service via e-mail at [address omitted], and request a review of the DoD's inventory of herbicide operations to determine whether herbicides were used as alleged. Id. If the Compensation Service's review does not confirm that herbicides were used as alleged, the RO must refer the case to the U.S. Army and Joint Services Records Research Center ("JSRRC") coordinator to make a formal finding that sufficient information required to verify herbicides exposure does not exist. Id. In this case, it does not appear that an attempt to verify the Veteran's claimed exposure to Agent Orange with the JSRRC has been made. Both coronary artery disease, and diabetes mellitus type 2, are shown by the medical record, and these disorders are afforded presumptive service connection for veterans who are shown to have been exposed to Agent Orange, see 38 C.F.R. § 3.307, 3.309. Therefore, on remand, an attempt should be made to verify the Veteran's claimed exposure to Agent Orange with the JSRRC. Finally, attempt to further verify the Veteran's period of temporary duty in Korea. In this regard, the Board notes that, to the extent that the Veteran has alleged that he was exposed to Agent Orange while in Korea, he has stated that he served in Korea while on temporary duty with the 4531st Field Maintenance Squadron, based at Homestead Air Force Base, but that he cannot remember the names of any bases that he served at. See Veteran's statement, received in May 2010. However, a performance report (AF Form 910), dated in June 1968, states that he arrived at Kunsan Air Base, Republic of Korea, in January 1968. The Board parenthetically notes that the aforementioned performance report states that the Veteran was deployed to Kunsan Air Base in support of Operation Fox, where he was assigned to the jet engine shop, and that the following month, the squadron deployed to Kwang-ju Air Base in Korea. In January 2013, the Appeals Management Center (AMC), attempted to verify the Veteran's claimed service in Korea, Thailand, and Vietnam, with the Air Force Historical Research Agency (AFHRA). In March 2013, the AFHRA replied, stating that the 4531st Tactical Fighter Wing sent a contingent of 500 men to Kunsan Air Force Base, Korea, in 1968, in response to the capture of the U.S.S. Pueblo, in a deployment knows as "Operation Fox." The AFHRA stated that there was no evidence to show that the 8th Tactical Fighter Wing ever sent any of its personnel to the Republic of Vietnam between January 1966 and January 1967. In March 2013, the AMC attempted to verify with the U.S. Army and Joint Services Records Research Center (JSRRC) if, at any time, members of the 8th FM Squadron were required to come in contact with the perimeter to test aircraft engines or pickup and deliver aircraft parts. That same month, the AMC also requested that the JSRRC attempt to verify whether members of the 4531st Tactical Fighter Wing were reported to be at or near the Korean DMZ (demilitarized zone) while on TDY (temporary duty) to Kunsan Air Base in 1968 while participating in Operation Combat Fox. In June 2013, a reply was received from DPRIS (Defense Personnel Records Information Retrieval System) in which that agency stated that there was no information specifically on the Veteran's duty assignment, however, historical information did state that the 8th FMS was responsible for the repair and overhaul of aircraft and accessories, organizational and filed maintenance of aerospace ground equipment, field maintenance of personal equipment, fabrication of parts, testing, calibration, reclamation, crash recovery, and repair of other aeronautical and non-aeronautical units. The squadron also provided flight line maintenance on base support and transient aircraft and operated the transient alert facilities. The report states, "Lastly, the information states that supply problems, parts, and facilities presented problems to the unit." A unit history for the 4531st Tactical Fighter Wing was attached that is consistent with the DPRIS report. In June 2013, a reply was received from the JSRRC, in which it was stated that historical information for the 4531st Tactical Fighter Wing did not report on the Veteran's temporary duty to Kunsan Air Base or his potential exposure to herbicides. It was stated that available historical records do not document the spraying, testing, transporting, storage, or usage of Agent Orange at Kunsan Air Base. In July 2013, the AMC issued a memorandum in which it concluded that there was a lack of information to corroborate that Veteran's claim of exposure to herbicides during service. The AMC concluded that all procedures to obtain this information had been properly followed, have been exhausted, and that any further attempts would be futile. The AMC further noted that the Veteran's unit is not one of the units which served in Korea and which is presumed to have been exposed to Agent Orange along the Korean DMZ, and that although he served at Ubon RTAFB (Royal Thai Air Force Base) he did not serve as one of the specified military occupational specialists. Citing M21-MR, Part IV.ii.2.C.10.p., and Part IV.ii.2.C.10.q. The AMC concluded that no further development was warranted. The Board finds that the claims must be denied. As an initial matter, in its decision, dated in January 2013, the Board determined that the Veteran is not credible. There was no appeal, and the Board's decision became final. See 38 U.S.C.A. § 7104(b) (West 2002). Given the foregoing, the Veteran may not be considered to be a credible historian. See King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55(2006) (holding that res judicata generally applies to VA decisions). The Veteran has asserted that he was exposed to Agent Orange during service in Vietnam, Thailand, and Korea. However, with regard to Vietnam, the Board finds that the evidence is insufficient to show that he served in Vietnam. With regard to Thailand, although he served at Ubon Air Base, the evidence is insufficient to show that he was exposed to Agent Orange during that service. The evidence shows that his military occupation specialty was jet engine mechanic, with duties on or near the flight line. Thus, his duties are not shown to have involved the military police, and the evidence is insufficient to show that he was otherwise near the air base perimeter, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. See MR212-MR, Part IV.ii.2.C.10.q. Of particular note, there is nothing in the June 2013 DPRIS report which provides a basis to find that the Veteran performed duties on or near the perimeter of Ubon Air Base. In this regard, while it is possible that some members of his unit passed through the perimeter while participating in crash recovery, the Veteran has not claimed to have performed such duties. With regard to service in Korea, the Veteran is not shown to have been a member of one of the units presumed to have been exposed to Agent Orange. See M21-MR, Part IV.ii.2.C.10.p. To the extent that the Veteran served at Kunsan Air Base, the JSRRC has concluded that available historical records do not document the spraying, testing, transporting, storage, or usage of Agent Orange at Kunsan Air Base. Finally, in July 2013, following obtaining responses from the AFHRA and JSRRC, the AMC issued a memorandum in which it concluded that exposure to Agent Orange was not established. Given the foregoing, exposure to Agent Orange during service is not shown, and the Veteran may not be afforded service connection on this basis. See 38 C.F.R. §§ 3.307, 3.309; Combee. Accordingly, the claims must be denied. The Board notes that VA Fast Letter 09-20 outlines the procedures for adjudicating claims involving an assertion of in-service herbicide exposure while on active service in Thailand. VA Fast Letter 09-20 provides that, in cases where the Veteran asserts that he or she was exposed to herbicides while on active service in Thailand, the DOD memorandum concerning herbicide use in Thailand (found in the M21-MR provision cited above) will be placed in the claims file. This has been done. See M21-MR, Part IV.ii.2.C.10.r. The DOD memorandum provides no basis to find that the Veteran was exposed to herbicides during his service. In reaching this decision, the Board has considered the notation in a March 2010 VA progress note, which shows that a physician's assistant, J.K.R. PA-C, stated that the Veteran had diabetes mellitus type 2, and ischemic heart disease, and that these disorder are related to exposure to Agent Orange "as well as documented in past research." However, this notation is not shown to have been based on a review of the Veteran's claims file, or any other detailed and reliable medical history, it did not include citation to any inservice or post-service medical findings, or other evidence, and as previously stated, the Veteran is not shown to have been exposed to Agent Orange during his service, such that it is based on an inaccurate history and it is afforded no probative value. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Accordingly, this evidence does not warrant a grant of either of the claims. With regard to the appellant's own contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The issues on appeal are primarily based on the contentions that the Veteran has diabetes mellitus, and heart disease, due to exposure to Agent Orange during service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, whether or not the Veteran was exposed to Agent Orange during service, and, if so, whether it caused heart disease or diabetes mellitus, or whether these disorders are otherwise related to service, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that he has heart disease, and diabetes mellitus, that were caused by his service. There is no indication that the Veteran is competent to diagnose either of the claimed conditions, or to link any current diagnosis to his service. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). This lay evidence does not constitute competent medical evidence and lacks probative value. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). II. Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in January 2009 and February 2010. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112(2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA medical records. In January 2013, the Board remanded these claims, and directed that an attempt be made to verify temporary duty (TDY) service in Korea, between January and August of 1968, and any duty in Vietnam, through the U.S. Army and Joint Services Records Research Center (JSRRC), the National Archives and Records Administration (NARA), or any other appropriate official channel. After that development was completed, the Board directed that an attempt be made to verify the Veteran's claimed exposure to Agent Orange through the JSRRC, per current M21-1MR provisions. After that development was completed, it was directed that the issues be readjudicated. As discussed supra, VA subsequently carried out all development requested by the Board, and in July 2013, the AMC readjudicated the claims. Given the foregoing, the Board finds that there has been substantial compliance with its January 2013 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against these claims. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has not been afforded VA examinations, and etiological opinions have not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran's service treatment reports do not show any relevant complaints, treatment, or findings, providing evidence against these claims. The Board has also determined that the Veteran is not shown to have been exposed to Agent Orange. Therefore, the second McLendon criterion is not satisfied. With regard to the third McLendon criterion, the earliest medical evidence of any of the claimed conditions is dated no earlier than 2001, the Veteran has been found not to be credible, and there is no competent and probative evidence to show that either of these conditions is related to service, which ended in 1968. Therefore, examinations and etiological opinions need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4)(2013); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board therefore concludes that decisions on the merits at this time do not violate the VCAA, nor prejudice the Veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs