Citation Nr: 0810100 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-22 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for polyarthralgias (claimed as joint pain), to include as due to herbicide exposure in Vietnam. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from February 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The veteran's appeal also initially included the issue of entitlement to service connection for fungal infections/jungle rot, but he dropped this issue from his appeal in his July 2005 Substantive Appeal. FINDINGS OF FACT 1. There is no competent and credible medical evidence of record linking current polyarthralgias (claimed as joint pain) to service, or showing an arthritic condition manifest to a compensable degree within one year following service; moreover, the veteran has not claimed service connection for a disability that the Secretary of Veterans Affairs has determined to be causally related to herbicide exposure in Vietnam. 2. The veteran does not have a diagnosis of PTSD that is predicated on a corroborated in-service stressor, and he has not been shown to have participated in combat with the enemy during service. CONCLUSIONS OF LAW 1. Polyarthralgias (claimed as joint pain) were not incurred in or aggravated by service, or presumptively incurred in service on the basis of herbicide exposure in Vietnam. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007); 72 Fed. Reg. 32395 (2007). 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued VCAA letters meeting the specific requirements of C.F.R. § 3.159(b)(1) in January and February of 2004. As these letters were issued prior to the appealed rating decision, this case raises no procedural concerns in view of the Mayfield line of decisions. Moreover, further VCAA letters were also issued in April 2004 and May 2007. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, such notification was provided in the May 2007 VCAA letter. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. For reasons described in further detail below, the Board has determined that VA examinations are not "necessary" in this case. In summary, all relevant facts have been properly developed in regard to the veteran's claims, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to these claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also 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 the veteran are to be avoided). II. Polyarthralgias Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era and has one of the diseases listed in 38 C.F.R. § 3.309(e) shall be presumed to have been exposed during such service 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 U.S.C.A. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). See 38 C.F.R. § 3.307(a)(6)(ii). The Board has reviewed the veteran's service medical records and observes that he was treated on numerous occasions for respiratory and skin symptoms (i.e., sore throat, acne), but at no time did he complain of polyarthralgias or any other joint symptoms. His October 1970 separation examination report was entirely negative for any upper extremity, lower extremity, spine, and neurological abnormalities. In the accompanying Report of Medical History from the same month, he specifically denied rheumatic fever; a history of broken bones; arthritis or rheumatism; bone, joint, or other deformities; lameness; a painful or "trick" shoulder or elbow; recurrent back pain; a "trick" or locked knee; neuritis; or paralysis. Subsequent to service, the veteran was noted to have "Cervical and Dorsal Sprain Mechanism" in a March 1972 physician's report. An insurance form from April 1974 indicates reported "muscle spasms." Private medical records from June 1979 reflect right knee swelling. A January 1998 private treatment record indicates a herniated nucleus pulposus at L4-L5 and right L3 neuropathy. The claims file also includes documentation from Thomas V. Kantor, M.D, who treated the veteran in March 2004. In a letter, Dr. Kantor specified that the veteran was seen regarding his positive rheumatoid factor and polyarthralgias, with a chief complaint of multiple joint aches. The veteran had evidence of bilateral rotator cuff tendonitis, but no active sinusitis. His positive rheumatoid factor was noted to portend to a diagnosis of rheumatoid arthritis, with an approximately 23 percent risk over five years. In the treatment report from the same month, Dr. Kantor raised the possibility of rheumatoid arthritis and described the veteran's physical examination findings. Dr. Kantor noted a differential diagnosis of seronegative spondyloarthropathies, Lyme disease, muscle disease, metabolic disease, crystal diseases, and rheumatoid arthritis. No further analysis was provided as to etiology. However, at the outset of the report, in describing the veteran's history, Dr. Kantor noted that the veteran had "chronic joint pain for many years" and further stated that "[i]t dates back to when he was in Vietnam" where "[h]e feels he got exposed to Agent Orange which may have caused some of his aches and pains, although there has been no direct correlation with exact exposure." The remaining medical evidence of record, including VA treatment records dated through June 2007, reflect further complaints of arthralgias. In the present case, the claims file does not include evidence of treatment for polyarthralgias or other orthopedic complaints in service or in the one-year period following service. The only competent medical evidence of record providing any sort of support to the veteran's claim is Dr. Kantor's commentary from the March 2004 treatment report, specifically that the veteran had "chronic joint pain for many years" that "dates back to when he was in Vietnam" where "[h]e feels he got exposed to Agent Orange which may have caused some of his aches and pains ...." It is not entirely clear from the context of this commentary whether it reflects a mere reiteration of statements from the veteran or Dr. Kantor's own opinion. Even assuming the latter, however, this opinion lacks credibility regardless of which theory of service connection is utilized. In terms of direct service connection under 38 C.F.R. § 3.303, the Board initially notes that the credibility of Dr. Kantor's opinion is substantially reduced because he did not indicate that he had reviewed the veteran's claims file, including his service medical records. See Miller v. West, 11 Vet. App. 345, 348 (1998) (bare conclusions without a factual predicate in the record are not considered probative); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Indeed, this opinion is substantially outweighed in terms of probative value by the October 1970 separation examination report and accompanying Report of Medical History, which clearly indicate that the examiner found no musculoskeletal abnormalities at that time and that the veteran denied any such abnormalities. The Board is also mindful that the veteran's service medical records, while showing treatment for multiple unrelated sore throats and other symptoms, are entirely devoid of musculoskeletal treatment at that time. The Board is next aware that, under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a), service connection may be granted on a presumptive basis in instances where arthritis is manifest within one year following service, and the separation examination does not preclude that possibility in the present case. The applicable regulations, however, further require that the disability be manifest to a compensable degree (e.g., 10 percent or more) during that period. Dr. Kantor's medical opinion does not speak to the question of the degree of severity of the claimed disorder during that one-year period, and the veteran has provided no other competent evidence suggesting that his disability was manifest to a compensable degree within one year following service. Finally, the opinion of Dr. Kantor appears to link the veteran's disability to exposure to Agent Orange in service. Such disabilities as polyarthralgias, rheumatoid arthritis, and other forms of arthritis, however, are not among the disabilities enumerated in 38 C.F.R. § 3.309(e), for which service connection may be granted on a presumptive basis as etiologically related to herbicide exposure in Vietnam. While this regulation encompasses acute and subacute peripheral neuropathy, it includes no musculoskeletal disorders. Significantly, any suggestion by Dr. Kantor of an herbicide- related cause of a current musculoskeletal disorder is substantially outweighed by medical evidence in the form of the opinion of the National Academy of Sciences (NAS) professionals who have studied this issue in depth and whose findings have served as the predicate for the list of disorders in 38 C.F.R. § 3.309(e). In this regard, VA has given notice that the Secretary of Veternas Affairs, under the authority of the Veterans Education and Benefits Expansion Act of 2001, Public Law 107-103, section 201(d), has determined that a presumption of service connection is not warranted based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era for a lengthy list of disorders that includes "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 72 Fed. Reg. 32395 (2007). As noted above, 38 C.F.R. § 3.309(e) reflects that polyarthralgias and any related diagnoses discussed by Dr. Kantor are not among the group of disorders for which a presumption of service connection is warranted. Having found Dr. Kantor's commentary to not be credible as to the matters of direct and presumptive service connection, the question becomes what, if any, further action is necessary, particularly in terms of a possible VA examination in conjunction with this claim. Such an examination, with a medical opinion as to etiology, is "necessary" under 38 U.S.C.A. § 5103A(d) when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) there is an indication the current disability or symptoms may be associated with service, and (4) there is not sufficient medical evidence to make a decision. See 38 U.S.C.A. § 5103A(c)(4). Under Guerrieri v. Brown, 4. Vet. App. 467 (1993), while the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of such statement. In the present case, given that the Board has found that: (1) Dr. Kantor's opinion was not based on a review of the pertinent evidence of record including the service medical records, (2) the opinion lacked any sort of rationale, and (3) no conclusion was provided that was phrased in terminology consistent with the benefit-of-the- doubt doctrine of 38 U.S.C.A. § 5107(b) (i.e., "at least as likely as not"), there exists no basis for finding the opinion credible in any respect. See also Winsett v. West, 11 Vet. App. 420, 424-25 (1998) (under VA law, there exists no "treating physician rule" under which a veteran's own physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor). Overall, in the absence of credible competent evidence linking the veteran's claimed disorder to service, there exists no reasonable possibility that a VA examination would result in findings favorable to the veteran. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Currently, the only other evidence of record supporting the veteran's claim is his own lay opinion, as indicated in his August 2004 Notice of Disagreement and his July 2005 Substantive Appeal. The veteran, however, has not presented a consistent service connection theory in this case. In his November 2003 application, in the section requesting information as to when his disability (exposure to Agent Orange) began, he responded with "?" and provided no additional commentary. In his Substantive Appeal, he merely stated that his joint pains "are service[-]related." The Board thus does not find his own contentions as to continuous joint symptoms since service, indicated in Dr. Kantor's March 2004 report, to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006) (holding the Board is obligated to, and fully justified in, determining whether lay testimony is credible in and of itself, and that the Board may weigh the absence of contemporary medical evidence against lay statements). Moreover, the Court has consistently held that service connection may not be predicated on lay assertions of medical causation. See Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In the present case, the Board is aware that the veteran has been employed as a nursing assistant at an endoscopy unit, as noted in Dr. Kantor's March 2004 report. The case at hand, however, addresses a musculoskeletal, rather than gastrointestinal, disorder, and the veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render either a diagnosis or a competent opinion as to medical causation for a musculoskeletal disorder. Accordingly, his lay opinion does not constitute competent medical evidence and lacks probative value as to the matter of medical diagnoses and causation. See also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report that on which he or she has personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 482 (1992) (a veteran is not competent to offer opinions on medical diagnosis or causation). Overall, the preponderance of the evidence is against the veteran's claim of service connection for polyarthralgias (claimed as joint pain), to include as due to herbicide exposure in Vietnam, and this claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). III. PTSD Service connection for PTSD requires medical evidence showing a diagnosis of the condition; a link, established by the medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)). The evidence necessary to establish the occurrence of a stressor during service to support a claim for PTSD will vary depending on whether the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If the evidence establishes that the veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service), the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Where, however, VA determines that the veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor is not related to combat or POW experiences, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence corroborating the stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after- the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). The Board observes, however, that in Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court held that a veteran's unit records constituted independent descriptions of rocket attacks that were experienced by his unit when he was stationed in Vietnam, which, when viewed in the light most favorable to him, objectively corroborated his claim of having experienced rocket attacks. The Court reiterated that although the unit records did not specifically identify the veteran as being present during the rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred suggested that he was in fact exposed to the attacks. The Board has first considered the question of whether the veteran has a medical diagnosis of PTSD. There is evidence of record suggesting this diagnosis, as an August 2004 VA screen for PTSD was "positive," and an assessment of PTSD was included in a September 2004 VA report from the veteran's primary care physician. The physician also noted that the veteran reported having nightmares and "much anxiety" due to service in Vietnam. For purposes of this decision, the Board will not call into question the diagnosis of PTSD. Nevertheless, a diagnosis of PTSD must be based upon either participation in combat with the enemy or a corroborated in- service stressor for service connection to be warranted, as noted above. Again, a favorable medical opinion is insufficient, in and of itself, to predicate the grant of service connection for PTSD. See Moreau v. Brown, 9 Vet. App. at 396. Thus, the question becomes whether the veteran either engaged in combat with the enemy during service or experienced a corroborated in-service stressor upon which the diagnosis of PTSD is predicated. With regard to the question of whether the veteran participated in combat with the enemy during service, the Board observes that his military records indicate that he was awarded medals including the National Defense Service Medal and the Vietnam Service Medal; there is, however, no indication of receipt of such combat-related citations as the Purple Heart Medal or the Combat Infantryman Badge. Additionally, the veteran's military records indicate that his principal in-service consisted of being a radar repairman. Finally, the veteran's service medical records do not suggest any combat-related wounds or other incidents of treatment reflecting combat. In short, there is no evidence of record to suggest the veteran's participation in combat with the enemy during service. As such, the Board has considered whether the veteran's diagnosis of PTSD is based upon a corroborated in-service stressor or stressors. In this regard, the Board observes that the veteran was initially furnished a PTSD questionnaire as part of his January 2004 VCAA letter, but he never submitted a completed copy of this questionnaire. In several lay submissions, including a September 2004 lay statement and his July 2005 Substantive Appeal, he made references to mortar and friendly fire but was not specific as to dates and locations; most of his contentions concerned his experiences and treatment upon returning home from Vietnam. The RO sent the veteran another VCAA letter and questionnaire in May 2007, advising him to either provide exact dates or, in the alternative, the locations and approximate times (within two months) of the specific events. The veteran again did not submit a completed questionnaire but instead provided a May 2007 lay statement focused on his post-Vietnam experiences rather than in-service stressful experiences. He also noted that he believed that his PTSD started before he went to Vietnam, as he had a wife and young son and "lost everything" in Hurricane Camille. Despite the RO's efforts, the veteran has not to date provided any specific information as to specific claimed stressors. In the absence of such information from the veteran, efforts at stressor corroboration from the United States Joint Services Records Research Center (JSRRC) (previously the U.S. Armed Services Center for Research of Unit Records) would be futile and will not be requested in this case. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not always a "one- way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). Similarly, the Board finds no basis for requesting a VA psychiatric examination in conjunction with the veteran's claim. In this case, there exists no reasonable possibility that a VA examination would result in findings favorable to the veteran, in view of the absence of a corroborated in- service stressor and confirmation of participation in combat with the enemy during service. Accordingly, the Board finds that an etiology opinion is not "necessary." See 38 U.S.C.A. § 5103A(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Overall, based upon a review of the entire claims file, the Board finds that the evidence of record indicates an assessment of PTSD. However, there is no evidence showing that the veteran's current diagnosis of PTSD is based upon a corroborated stressor from service, and the evidence of record does not reflect participation in combat with the enemy. As such, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for PTSD. Again, 38 U.S.C.A. § 5107(b) is not applicable in this case because the preponderance of the evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. at 55. ORDER Entitlement to service connection for polyarthralgias (claimed as joint pain), to include as due to herbicide exposure in Vietnam is denied. Entitlement to service connection for PTSD is denied. ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs