Citation Nr: 9806357 Decision Date: 03/03/98 Archive Date: 03/20/98 DOCKET NO. 97-26 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for kidney stones, claimed as a residual of exposure to Agent Orange. 3. Entitlement to service connection for diabetes mellitus, claimed as a residual of exposure to Agent Orange. 4. Entitlement to service connection for a prostate disorder with urinary tract infection, claimed as a residual of exposure to Agent Orange. 5. Entitlement to service connection for irritable bowel syndrome, claimed as a residual of exposure to Agent Orange. 6. Entitlement to service connection or peripheral neuropathy, claimed as a residual of exposure to Agent Orange. 7. Entitlement to service connection for acneform disease, claimed as a residual of exposure to Agent Orange. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service with the Marines from June 1964 to December 1966. He also had periods of active service with the Navy from April 1968 to January 1970 and from October 1972 to August 1974. The veteran received an other than honorable discharge from the last period of service. This discharge was upgraded to under honorable conditions in April 1976. The veteran served in Vietnam from March to November 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, among other things, granted entitlement to a permanent and total disability rating for pension purposes. The RO has deferred action on the veteran’s claim for service connection for chronic obstructive pulmonary disease as the result of tobacco use while in service. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative essentially maintain that he has PTSD as a direct result of his combat experiences while in Vietnam. It is also alleged that he has kidney stones, diabetes, a prostate condition with urinary tract infection, irritable bowel syndrome, peripheral neuropathy, and acneform disease which are all residuals of his exposure to Agent Orange. He asserts that VA examinations have been inadequate. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the grant of service connection for PTSD. It is also the decision of the Board that the veteran has not submitted evidence of well-grounded claims for service connection for kidney stones, diabetes mellitus, a prostate condition with urinary tract infection, irritable bowel syndrome, peripheral neuropathy, or acneform disease, claimed as residuals of exposure to Agent Orange in service. FINDINGS OF FACT 1. The veteran was in combat during active service. 2. The veteran has PTSD as a result of traumatic experiences during active service. 3. There is no competent evidence of current peripheral neuropathy, irritable bowel syndrome, or kidney stones. 4. There is no competent evidence of acneform disease or diabetes mellitus within one year of service. 5. There is no competent evidence relating diabetes mellitus, acneform disease, or a prostate disorder with urinary tract infection, to service. CONCLUSIONS OF LAW 1. The veteran has PTSD which is related to traumatic experiences during active service. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1997). 2. The claims for service connection or diabetes mellitus, acneform disease, a prostate disorder with urinary tract infection, peripheral neuropathy, irritable bowel syndrome, and kidney stones are not well grounded. 38 U.S.C.A. § 5017(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service connection for PTSD. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injuries suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f). Pursuant to 38 U.S.C.A. § 5107(a), the Board finds that the veteran’s claim of entitlement to service connection for PTSD is well grounded. That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed with respect to this claim, and that no further assistance is required in order to comply with VA’s duty to assist. The United States Court of Veterans Appeals (Court) has provided detailed guidance for the development of claims for service connection for PTSD once the veteran has satisfied the initial burden of establishing a well-grounded claim. Zarycki v. Brown, 6 Vet. App. 91 (1993). In Zarycki, the Court set forth the framework for establishing the presence of a recognizable stressor, which is the essential prerequisite to support the diagnosis of PTSD. The Court analysis divides into two major components: The first component involves the evidence required to demonstrate the existence of an alleged stressful event; the second involves a determination as to whether the stressful event is of the quality required to support the diagnosis of PTSD. More recently, in Cohen v. Brown, 10 Vet. App. 128 (1997), the Court indicated that there was a shift in the diagnostic criteria, with the major effect being that the criteria had changed from an objective (“would evoke...in almost anyone”) a standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard. The criteria now require exposure to a traumatic event and response involving intense fear, helplessness, or horror. A more susceptible individual may have PTSD based on exposure to a stressor that would not necessarily have the same effect on “almost everyone.” The sufficiency of a stressor is accordingly, now a clinical determination for the examining mental health professional. It was further noted that where “there has been an ’unequivocal’ diagnosis of PTSD by mental health professionals, the adjudicators must presume that the diagnosis was made in accordance with the applicable DSM criteria as to both adequacy of symptomatology and sufficiency of the stressor (or stressors).” Id, at 134. The question of the existence of a event claimed as a recognizable stressor is the principle matter for resolution. The record reflects that the veteran has been accorded the diagnosis of PTSD by a mental health professional. When accorded a psychiatric examination by VA in March 1997, it was the examiner’s opinion that he had chronic PTSD secondary to his wartime experiences in Vietnam. Thus, the evidence of record easily meets the first element required under Section 3.304(f), that being a current diagnosis of PTSD. The question now becomes whether the evidence meets the remaining two elements: Credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f). A review of the evidence of record discloses the veteran has no awards or decorations denoting engagement in combat with the enemy or direct combat participation. However, the claims file does indicate that in 1966 the veteran was assigned to I-Company, 3rd Battalion, 4th Marines. The veteran’s personnel records reflect that his principal duty assignment with the unit was as a rifleman. Other evidence of record reflects that his unit participated in various operations against the enemy in Vietnam during 1966. Other records pertain to a history of the 3rd Battalion, 4th Marines during 1966 and reflect the unit was exposed to enemy fire. At the personal hearing before the undersigned in January 1998, and elsewhere, the veteran referred to being on a patrol one day with a soldier named Nazworthy, a squad leader, who was shot and killed right in front of him. Records available to the Board confirmed the death of a Marine Corporal named Nazworthy in May 1966. The veteran has also referred to the death of another soldier whom he has indicated was in another company in the same battalion. He stated this individual, Joseph L. Byrne, Jr., was killed in action on May 16, 1966, the same day as Corporal Nazworthy. He remarks that private Byrne was killed while taking out an enemy machine-gun nest. Records available to the Board confirm the death of a Joseph L. Byrne, Jr., a Marine Private First Class, but list the date of death as July 20, 1966, not May 16, 1966. Received at the Board in January 1998 was a copy of a July 1997 notarized statement from an individual stating that he met the veteran on a sweep operation in August 1966. The individual stated that he was with a different unit from the veteran. He recalled a time in September 1966 when his unit and the veteran’s unit were involved in heavy fighting with the enemy and three Marines, including a Captain J. J. Carroll were killed and 10 others were wounded. The evidence available to the Board confirms the death of a Captain J. J. Carroll on October 5, 1966. The above evidence contains some inconsistencies, however, it is not necessary that every detail of a claimed stressor be confirmed, only that there be corroboration of the claimed stressors. Souzzi v. Brown, 10 Vet. App. 307 (1997). Further, there is evidence from a number of sources that the veteran engaged in combat. Service department records show that the veteran’s unit was engaged in combat during Operation Hastings in July 1966. Where service department records show that a veteran engaged in combat, such evidence will be accepted as conclusive as to the occurrence of combat related stressors reported by the veteran. 38 C.F.R. § 3.304(f). As the record now stands there is a clear diagnosis of PTSD, credible supporting evidence of inservice stressors, and medical opinion linking PTSD to the inservice stressors. Since all of the necessary elements for service connection have been demonstrated, service connection for PTSD is granted. II. Service connection for disabilities claimed as secondary to Agent Orange exposure. The threshold question to be answered concerning these claimed disabilities is whether the veteran has met his mutual obligation with the submission of evidence of a well- grounded claim; that is, or much as plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1997). In addition, service connection maybe granted 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) (1997). A well-grounded claim for service connection requires (1) competent evidence of a current disability (a medical diagnosis); (2) evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence, depending on the circumstances); and (3) evidence of a nexus between the inservice injury or disease and a current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, there is no nexus between any current disorder and the veteran’s active service. The term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6) (1997), The diseases listed at 38 C.F.R. § 3.309(e) (1997) shall be service connected if they manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. The regulations pertaining to AO exposure, expanded to include all herbicides used in Vietnam, now provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6) (1997). The veteran's active duty included service in Vietnam during the Vietnam era. Consequently, it is presumed that he was exposed to AO or other herbicide agents while in Vietnam. 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 § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the refutable presumption provisions of § 3.307(d) are also satisfied. Chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, 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), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes the following: adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, malignant ganglioneuroma For purposes of this section, 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. The United States Court of Appeals for the Federal Circuit has determined that the Veteran’s Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155, 160 (1997). In this case, there is no medical evidence that the veteran currently has kidney stones, irritable bowel syndrome (although this condition was noted by history only on VA examination in March 1997), or peripheral neuropathy. Since there is no competent evidence of these disabilities currently, the claims for service connection for those conditions are not well grounded, and must be denied. Brock v. Brown. With regard to the remaining claims, the Board notes that in August 1984, the veteran was seen in VA outpatient consultation with regards to possible exposure to Agent Orange. It was stated that he had no pertinent complaints and was not having any major medical problem. He was accorded an Agent Orange examination and it was stated that he was a healthy individual. He returned in August 1985 for a review of the previous Agent Orange examination and current examination included notations of that the skin was negative, the abdomen was normal and the extremities, prostate, and neurological examinations were negative. It was not until the 1990’s that there was medical documentation of the presence of diabetes mellitus, acneform disorder, benign prostatic enlargement with history of recurrent urinary tract infections. No medical professional has linked these conditions with Agent Orange exposure, or otherwise suggested that they are related to service. Diabetes mellitus is considered a chronic disease. Service connection will be presumed if it is demonstrated to a compensable degree within one year of service. 38 C.F.R. §§ 3.307, 3.309. As noted above, there is no competent evidence of diabetes until many years after service. Similarly, acneform disease is presumed to be due to herbicide exposure if demonstrated within one year of service. However, there is no competent evidence of that disease for many years after service. In the absence of the necessary competent evidence of current disability or of a nexus to Agent Orange exposure or to any other incident of service, the claims for service connection kidney stones, diabetes mellitus, a prostate condition with urinary tract infection, irritable bowel syndrome, peripheral neuropathy, or acneform disease must be denied as not well grounded. The Board has noted the veteran’s contention that VA examinations were inadequate. However, inasmuch as he has not submitted well-grounded claims, VA has no duty to assist him with the development of those claims by affording additional examinations. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464 (1996). The veteran has not reported the existence of evidence which could serve to render his claims well grounded. Accordingly, there is no further duty on the part of VA to inform him of the evidence necessary to complete his applications for those benefits. 38 U.S.C.A. 5103 (West 1991); Epps v. Brown, 9 Vet. App. 341, 344-345 (1996). ORDER Service connection for PTSD is granted. To this extent, the appeal is allowed. Service connection for kidney stones, claimed as the residual of Agent Orange exposure, is denied. Service connection for diabetes mellitus, claimed as the residual of Agent Orange exposure, is denied. Service connection for prostate disorder with urinary tract infection, claimed as the residual of Agent Orange exposure, is denied. Service connection for an irritable bowel syndrome, claimed as a residual of Agent Orange exposure, is denied. Service connection for peripheral neuropathy, claimed as the residual of Agent Orange exposure, is denied. Service connection for acneform disease, claimed as residual of Agent Orange exposure, is denied. Mark D. Hindin Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -