Citation Nr: 0809973 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-28 500A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for prostate cancer as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1960 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. The evidence of record demonstrates the veteran's PTSD is not a result of any established event, injury, or disease during active service. 3. The evidence of record demonstrates the veteran's prostate cancer is not a result of any established event, injury, or disease during active service. CONCLUSION OF LAW 1. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 2. Prostate cancer was not incurred in or aggravated by active service, nor may service incurrence of prostate cancer be presumed. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in correspondence from the RO dated in August 2004 and November 2004. Those letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claims, identified the veteran's duties in obtaining information and evidence to substantiate his claims, and requested that the veteran send in any evidence in his possession that would support his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, and all available evidence has been obtained in this case. Thus, the content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Because of the decision in this case any deficiency in the initial notice to the veteran of the duty to notify and duty to assist in claims involving a disability rating and an effective date for the award of benefits is harmless error. Further attempts to obtain additional evidence would be futile. The Board notes the veteran has not been afforded a VA examination in connection with this claim but is of the opinion that such an examination is not required. See 38 C.F.R. § 3.159(c)(4)(i). As will be discussed further below, there is no competent evidence that the veteran served in the Republic of Vietnam or was exposed to herbicides. There is also no competent evidence of a verifiable PTSD stressor. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Law and Regulations 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 injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). PTSD For PTSD claims VA law provides that service connection "requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. . . ." 38 C.F.R. § 3.304(f) (2007). Section 4.125(a) of 38 C.F.R. incorporates the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) as the governing criteria for diagnosing PTSD. In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court held that VA had adopted the 4th edition of the DSM-IV and noted that the major effect was that the criteria changed from an objective "would evoke ... in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard requiring exposure to a traumatic event and response involving intense fear, helplessness, or horror. The Court further held the sufficiency of a stressor was now a clinical determination for an examining mental health professional. Id. at 140, 141. The Court has held that credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). In this case, the veteran's service personnel records show that he served in New Jersey, Texas, Okinawa, and California. Medals, decorations, and citations only include the rifle marksman and rifle expert badges. The service treatment records are negative for any signs, symptoms, or diagnoses of PTSD. On the May 1962 separation examination, the examiner noted no psychological problems. In his May 1962 Report of Medical History, the veteran indicated that he had never had nervous trouble of any sort. Statements bearing signatures of members of the veteran's family, G.W.R., W.R., B.A.R., B.E.R. (the veteran's spouse) and from D.H., dated November 2004 stated that the veteran displayed agitated behavior, intense fear, clinical distress, and depression since serving in Vietnam. It was mentioned that the veteran had intense violent nightmares and anti- social behavior. The statement bearing B.E.R.'s signature indicated that the veteran saw fellow soldiers and Vietnamese being killed or maimed. On his PTSD questionnaire submitted in December 2004, the veteran asserted that while working with fellow soldiers and Vietnamese workers clearing land with herbicides, he saw fellow soldiers shot or blown apart with landmines. He said that one of his buddies had his head blown half off and died in the veteran's arms. He also stated that Vietnamese workers were constantly stepping on mines and losing feet and legs. He indicated he frequently sought medical attention while on active duty without a specific ailment, and he recalled making sudden requests for changes in his duty assignment to avoid stress in Vietnam. He acknowledged alcohol abuse and a disregard for military authority. He asserted that he had episodes of depression, panic attacks, and anxiety, and he said he had lost many jobs. In February 2005, the veteran submitted lay statements bearing the signatures of R.M., G.N.R., and M.M.. These statements indicated that the veteran went with a detachment of soldiers to Vietnam in 1962 to use defoliants to clear land for buildings for an air base. The veteran also submitted numerous photographs which he said he sent his parents and girlfriend from Vietnam in 1962. VA outpatient treatment records include a "Psychiatry Initial Assessment MHC" in which the veteran related to the social worker that he was having trouble sleeping and had nightmares from Vietnam. He related that he was in Vietnam in 1962. Based totally on the history reported by the veteran, the social worker diagnosed PTSD. Additional VA outpatient treatment records dated in March, April, and July 2005, and signed by a VA psychiatrist diagnosed PTSD. It appears that the diagnosis was based entirely on statements made by the veteran and not on a review of the claims folder. Additional VA outpatient records dated through June 2007 show intermittent treatment for PTSD. A VA treatment record from February 2007 repeated the veteran's statements that he had problems sleeping and nightmares of Vietnam. The examiner gave a diagnosis of PTSD. Additional lay statements bearing the signatures of R.M., G.N.R., and M.M. were submitted in September 2005. These statements reiterated that the veteran went with other soldiers for temporary duty in Vietnam in 1962 and indicated that there were plenty of daily attacks against American troops. The veteran provided additional copies of these lay statements in February 2006. The veteran stated in September 2005 that his service treatment records were incomplete. He recounted medical treatment that he received while on active duty that was not recorded. He also said the buddy statements he had submitted were credible. In January 2007 the veteran provided additional lay statements with the signatures of G.N.R., R.M., K.R., and M.M.. The veteran said that these statements had been legally notarized. Based on the evidence of record, the Board finds that the veteran's PTSD is not a result of any established event, injury, or disease during active service. The evidence clearly shows that the veteran currently has a diagnosis of PTSD. However, while the VA treatment records recount the veteran's assertions that he experiences nightmares of his experiences in Vietnam, no medical diagnosis has been provided establishing a diagnostic link between the veteran's currently demonstrated PTSD and any verified stressor from active service. Further, the statements were based on the history related by the veteran and not on a review of the claims folder. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). None of the evidence of record contains a statement given by a medical examiner which provides a nexus between the veteran's diagnosed PTSD and a verified in-service stressor. Without a link, established by medical evidence, between current symptoms and an in-service stressor, service connection for PTSD cannot be granted. See 38 C.F.R. § 3.304(f). Additionally, the Board finds that there is no verified in- service PTSD stressor. The Board has carefully considered all of the lay statements that the veteran has submitted. In the September 2005 statement from R.M. submitted the first time, the signature misspelled R.M.'s name. In the September 2005 statement from R.M. submitted the second time, the signature spelled R.M.'s name correctly, but it appears to be a different signature. The two statements from M.M. each dated in September 2005 appear to have different signatures. The veteran submitted statements with the signatures of G.N.R., R.M., K.R., and M.M. in January 2007, and he said that the statements had been legally notarized. The veteran indicated that the statement from G.N.R. had been notarized by M.T., Notary Public, State of Hawaii. The statement from R.M. said it had been notarized by J.M., Notary Public, State of Florida. K.R's and M.M's statements appear to have been notarized by C.H. and H.A., Notaries Public, Commonwealth of Virginia. However, none of these statements followed the laws of their respective states regarding how a document should be legally notarized. See HAW. REV. STAT. ANN. §§ 456- 1-456-19, 502-41-502-84, 603-1, 621-12, 621-13 (West 2007); FLA. STAT. ANN. §§ 117.01-117.20 (West 2007); §§ 47.1-47.1- 33, VA. CODE ANN. 55.118-118.1-55.118-6 (West 2007). While all of the statements contained a signature ostensibly from a notary public, none of the statements contained a proper attestation clause. None of the alleged notaries indicated the location where the statements were sworn to be correct. None of the notaries indicated that the people signing the statements were who they said they were. None of the notaries indicated when their commission expires. None of the notaries used a rubber stamp in addition to their raised stamp. The Board finds there are some serious questions as to the authenticity of these records. The Board is not under an obligation to accept fake evidence or a fraud upon the United States Government. Due to the inconsistent signatures and lack of legal notarization, the Board finds that the veteran's submitted lay statements are not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the Board, as fact finder, "is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006) (when subject is one to which lay person is "competent" to testify, such "testimony can be rejected only if found to be mistaken or otherwise deemed not credible"). As the Board has found the lay statements to not be credible, they cannot provide competent evidence of an in-service PTSD stressor. Additionally, the veteran's actions in asserting that these statements were legally notarized call into question the truth and veracity of all statements he has made concerning his claim. The veteran's service personnel records do not show that he served in Vietnam. Rather, he served in Okinawa. The National Personnel Records Center (NPRC) indicated in August 2004 that there was no evidence in the veteran's file to substantiate any service in the Republic of Vietnam. The Board finds the service records and NPRC statement persuasive evidence that the veteran did not serve in the Republic of Vietnam as they reflect official records that were created at the time of the veteran's service. The veteran provided an article entitled "The Military Assistance Command, Vietnam: February 1962 July 1965." Unfortunately, the veteran was not mentioned in the article, and so the article does not provide creditable proof that the veteran served in the Republic of Vietnam. The Board has carefully considered the veteran's statements alleging that his PTSD is caused by an in-service stressor. While he may sincerely believe he has PTSD as a result of service, he is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, the Board finds entitlement to service connection is not warranted. When all the evidence is assembled VA is then 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. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. Prostate Cancer Service connection shall be granted to a veteran if the veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and a malignant tumor, although not otherwise established as incurred in or aggravated by service, is manifested to a compensable degree within one year following the requisite service. 38 C.F.R. §§ 3.307, 3.309 (2006) Certain disorders associated with herbicide agent exposure in service, including prostate cancer, may also be presumed service connected. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (e) (2007). Veterans diagnosed with an enumerated disease who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (2007). Evidence which may be considered in rebuttal of service incurrence of a disease will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary'' will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d)(1) (2007) The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the veteran's service treatment records are negative for any signs, symptoms, or treatment for prostate cancer. The veteran's May 1962 separation physical indicated he had a normal abdomen, viscera, anus, and rectum. The veteran noted in his May 1962 RMH that he did not have any tumors, growths, cysts, or cancer. A private treatment record from July 1997 stated that a biopsy revealed a focal high grade prostatic intraepithelial neoplasia. A biopsy from August 1997 showed benign prostate tissue. In May 2003, a private biopsy report noted adenocarcinoma, and a private treatment record from July 2003 indicated that the veteran had a strong family history of prostate cancer. The veteran underwent prostate brachytherapy with perctaneous transperineal placement of radioactive prostate seeds in September 2003. In July 2004, the veteran participated in the Veterans Administration's Agent Orange Registry. The veteran stated that he was involved in handling or spraying Agent Orange, he was directly sprayed with Agent Orange, he ate food or drink that could have been sprayed with Agent Orange, and he was exposed to herbicides other than Agent Orange. He also stated that he had prostate cancer due to Agent Orange exposure. A VA treatment record from July 2004 indicated that the veteran was treated with radon seeds for his prostate cancer. A history of being a grunt in Vietnam was listed. The examiner provided a diagnosis of prostate cancer due to Agent Orange exposure. Additional medical records reflect treatment for prostate cancer. Based on the evidence of record, the Board finds that the veteran's prostate cancer is not a result of any established event, injury, or disease during active service. The record clearly shows that the veteran has a current diagnosis of prostate cancer. However, the service treatment records were negative for any signs, symptoms, or treatment for prostate cancer. None of the current competent medical evidence provides a nexus between the veteran's current diagnosis of prostate cancer and any event from the veteran's active service. Additionally, the first evidence of record of a tumor is a private treatment record from 2003-over 41 years after the veteran left active duty. The passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Without evidence of an in- service event and competent medical evidence that provides a link between that in-service event and a current diagnosis, service connection cannot be granted on a direct basis. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board has considered whether service connection could be granted on a presumptive basis. However, there is no evidence of malignant tumors existing to a compensable degree within one year of the veteran's discharge from active duty. Without evidence of malignant tumors being present to a compensable degree within one year of separation of active duty, service connection cannot be granted on a presumptive basis for a chronic disease. See 38 C.F.R. §§ 3.307. Additionally, the Board has considered whether service connection for prostate cancer could be granted secondary to herbicide exposure. As mentioned in the discussion on PTSD, the Board finds no competent evidence of record that proves that the veteran served in Vietnam. All official records do not show Vietnam service. Without competent proof that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, exposure to herbicides cannot be presumed. See 38 C.F.R. §§ 3.307. The Board has carefully considered the veteran's statements to the Agent Orange registry and the July 2004 VA treatment note which indicated that the veteran had prostate cancer due to Agent Orange exposure. However, the veteran's claims of Agent Orange exposure are not substantiated by the official record, and the July 2004 diagnosis appears to be based on the veteran's own recitation of his medical and military history. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion on when it is based exclusively on the recitations of a claimant that have been previously rejected.). Therefore, the Board finds the veteran's statements to the Agent Orange registry and the July 2004 VA treatment note to be of less persuasive value. The Board has carefully considered the veteran's statements alleging that his prostate cancer is due to herbicide exposure. While he may sincerely believe he has prostate cancer as a result of service, he is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, the Board finds entitlement to service connection is not warranted. When all the evidence is assembled VA is then 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. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to service connection for PTSD is denied.. Entitlement to service connection for prostate cancer is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs