Citation Nr: 0810274 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-02 429 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for chloracne. 2. Entitlement to service connection for memory loss. 3. Entitlement to service connection for keratosis pilaris (KP). 4. Entitlement to service connection for residuals of a left foot injury. 5. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran served on active duty from May 1965 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) from a February 2004 rating decision by which the RO denied entitlement to the benefits sought herein. The veteran withdrew a request for a travel Board hearing in October 2004. See 38 C.F.R. § 20.704(e) (2007). Accordingly, the Board will proceed with consideration of the veteran's claim based on the evidence of record, as he has requested. FINDINGS OF FACT 1. The veteran is not shown to be suffering from chloracne. 2. The veteran does not suffer from abnormal memory loss. 3. KP is not shown to be related to the veteran's active duty service. 4. Residuals of a left foot injury are not shown. 5. PTSD is shown to have resulted from verified in-service stressors. CONCLUSIONS OF LAW 1. Service connection for chloracne is not warranted. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 2. Service connection for memory loss is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 3. Service connection for KP is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 4. Service connection for residuals of a left foot injury is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). 5. Service connection for PTSD is warranted. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Here, the VCAA duty to notify was satisfied by way of a letters sent to the veteran in July and September 2003 that fully addressed all four notice elements and were sent prior to the initial AOJ decision in this matter. The letters informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, service personnel records, and VA medical records. The veteran was provided an opportunity to set forth his contentions at a hearing before a Veterans Law Judge, but he waived that right. The veteran was afforded VA medical examinations relevant to the issues on appeal. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the positive and negative evidence as to a claim is in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. Law and Regulations Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), 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). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, 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. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.304(f). A veteran who, during active military, naval, or air 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 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma and diabetes mellitus (Type 2). See 38 C.F.R. § 3.309(e). The foregoing diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 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 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. A disease associated with exposure to herbicide agents listed in § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during service, provided that the disease listed shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, see 38 C.F.R. § 3.309(e), but must also determine whether his current disability is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). Discussion By way of introduction, the veteran served in Vietnam during the Vietnam era. Chloracne The service medical records make no reference to chloracne. Only acne vulgaris is noted on May 1959 pre-induction medical examination report. There are no further in-service references to the skin. Because the veteran served in Vietnam during the Vietnam era, if chloracne is found, he is entitled to service connection for that condition on a presumptive basis. 38 C.F.R. §§ 3.309, 3.307. The record is equivocal as to whether the veteran suffers from chloracne. A December 2003 notation by a dermatology resident at VA noted complaints of a back rash and wart-like lesions on the inner thighs, right inner elbow, left lateral peri-orbital, and left temple for many years. Specifically, the resident described follicular papules on the chest, shoulders, upper arms, and back and papule lesions on the inner thighs, right inner elbow, left lateral peri-orbital, and left temple. There was a small hyperpigmented region on the right shoulder. The resident diagnosed, in pertinent part, chloracne but indicated that treatment would be postponed until a VA dermatologic examination took place. On January 2004 VA skin examination, the examiner noted two to three millimeter dark perifollicular macules with occasional small keratotic papules on the back, shoulders, and central chest. On the right shoulder, there was a ten by eight millimeter speckled hyperpigmented patch with a slightly irregular border. On the left arm, there were a few well-demarcated slightly hyperpigmented patches and macules, several in the shape of the two sides of a Band-Aid application. The examiner, a VA physician, specifically diagnosed "no chloracne." The Board notes that chloracne manifests as an acne-like condition with blackheads, pustules, cysts, and oily skin. The lesions are most frequently found on the cheeks, behind the ears, in the armpits, and in the groin region. See http://www1.va.gov/agentorange/docs/D2AOBRIEF82005. The Board further notes that such manifestations are not apparent from the above descriptions of the veteran's symptoms, which involve primarily the back, shoulders, and chest. The Board will credit the diagnosis of the January 2004 VA examiner because he is a physician and likely has more experience than the resident who diagnosed chloracne. The Board is especially confident of its credibility finding because classic symptoms associated with chloracne have not been described by any medical professional. Indeed, the face does not seem to be implicated, and an acne-like condition of the face, armpits, and groin has not been found. The Board reminds the veteran that VA decision makers have discretion to accept or reject pieces of evidence provided that sufficient reasons and bases are set forth explaining such actions. Hayes v. Brown, 5 Vet. App. 60, 69- 70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992). Because the Board has found that the veteran does not suffer from chloracne, service connection for that disability is denied. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes). Although there is evidence for and against the claim, the evidence against it is more persuasive because it is the product of a physician's findings and is consistent with the lack of symptoms characterizing chloracne. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not for application. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. Memory Loss The service medical records reflect no complaints or findings regarding memory loss. On August 2003 VA neurologic examination, the veteran complained of short-term memory loss consisting of misplacing or losing his keys and locking himself out of the house. He also had a tendency to forget appointments unless reminded. He reported trouble remembering names, and he had to maintain a to do list. The veteran, however, continued to conduct all of the activities of daily living such as bill paying and complex decision making. Neurologic history did not include strokes. On examination, the veteran was alert and oriented to time and place. Basic language function was intact to include naming, repetition, and comprehension. The examiner diagnosed subjective memory complaints and testing suggestive of intact retention and memory on basic screening measures. Complaints regarding retention were normal in people the veteran's age and were attributable to the normal aging process, according to the examiner. The granting of service connection is premised upon the presence of an actual disability. It is indeed well settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service- connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (service connection may not be granted unless a current disability exists). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). The veteran is not shown to be suffering from any abnormal memory loss. His complaints of memory loss are subjective, and both his memory and retention are normal for a person his age. It appears, therefore, that a disability manifested by memory loss is not present and that service connection for such disability must be denied. Id.; 38 C.F.R. § 3.303; Brammer, supra; Rabideau, supra. To the extent that memory loss does exist, however, it is attributable to the normal aging process and not to service and does not, therefore, warrant a grant of service connection on a direst basis. 38 C.F.R. § 3.303. The preponderance of the evidence weighs against the veteran's claim, as there is no competent medical evidence reflecting a diagnosis of memory loss that is attributable to service. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not for application. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. KP In a May 1959 pre-induction physical examination report, acne vulgaris was noted. No further complaints or findings concerning the skin are contained within the service medical records, and KP is not mentioned therein. Current evidence indicates that the veteran has KP. On examination in January 2004, the examiner noted two to three millimeter dark perifollicular macules with occasional small keratotic papules on the back, shoulders, and central chest. On the right shoulder, there was a ten by eight millimeter speckled hyperpigmented patch with a slightly irregular border. On the left arm, there were a few well-demarcated slightly hyperpigmented patches and macules, several in the shape of the two sides of a Band-Aid application. The diagnosis was of mild KP on the back, shoulders, and chest that was not due to Agent Orange exposure. Certainly, service connection for KP cannot be granted presumptively based on Agent Orange exposure, as it is not enumerated as one of the conditions for which service connection can be granted on that basis. 38 C.F.R. §§ 3.307, 3.309. Service connection cannot be granted for KP on a direct basis. 38 C.F.R. § 3.303. The January 2004 VA examiner opined that KP was unrelated to Agent Orange exposure in service, and the examiner did not conclude that KP resulted from any other aspect of the veteran's service. Without a nexus between KP and service, service connection for that condition must be denied. Id. This is a case where the preponderance of the evidence weighs against the veteran's claim, as there is no evidence of record in support of the proposition that KP is related to service. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not for application. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. Residuals of a left foot injury An examination of the service medical records reflects that in October 1966, the veteran reported a lump on the bottom of the left foot and complaints that he was having difficulty walking. An old foreign body was suspected, but further examination indicated that no foreign body was present; a plantar wart was diagnosed. On completion of service, no injuries of the feet or residuals thereof were noted. In July 2003, the veteran was afforded a VA examination of the feet. The veteran reported that a nail went through the plantar aspect of the left foot just anterior to the heel during service. He asserted that he pulled out the nail and has had left heel pain ever since. The examiner indicated that upon review of the medical records, he found no reference to a nail injury of the left heel. On objective examination, the veteran's gait was normal as was range of motion of the left ankle. Left ankle range of motion was without limitation or pain. The midfoot was supple. There was no tenderness over the left heel. Radiographs of the left foot and ankle were normal. The examiner assessed a normal left ankle and foot examination with correspondingly normal X-ray studies. The examiner opined that it was unlikely that any complaint regarding the left foot was related to the veteran's time in service, as there is no record of any left foot injury in service. In order to qualify for a grant of service connection, and veteran must have a current disability that is related to service. 38 C.F.R. § 3.303; Chelte, supra; Brammer, supra; Rabideau, supra. The veteran is not shown to be competent to render medical opinions regarding the presence of a left foot disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The competent medical evidence does not establish the presence of any left foot disability to include residuals of an injury thereto. Thus, service connection for residuals of a left foot injury must be denied. 38 C.F.R. § 3.303; Chelte, supra; Brammer, supra; Rabideau, supra. This is a case where the preponderance of the evidence weighs against the veteran's claim. The only evidence in its favor consists of the veteran's apparent assertions as to the presence of a disability. This evidence is not considered competent. Espiritu, supra. The only competent evidence addressing the question herein indicates that there is no evident left foot disability, without which service connection for the claimed residuals of a left foot injury cannot be granted. Chelte, supra; Brammer, supra; Rabideau, supra. Because the only competent evidence of record precludes the granting of service connection, the preponderance of the evidence is against the claim, and the benefit of the doubt rule does not apply. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. PTSD On October 2003 VA psychiatric examination, the veteran recounted alleged PTSD-inducing stressors to include the fact that his unit was attacked and shelled repeatedly. Based on the description of his symptoms to include disturbed sleep, anxiety, and intrusive thoughts of Vietnam experiences and the alleged service-related stressors described, the examiner diagnosed chronic PTSD. In a September 2006 statement, the veteran indicated that his alleged PTSD-inducing stressors included being part of a unit that was "consistently" bombed and shelled and witnessing deaths and the removal of bodies. In a May 2007 memorandum to the file, an RO Senior Veterans Service Representative (SVSR) outlined the nature of the veteran's service to include the fact that the veteran served in Vietnam from May 1966 to November 1967 and was assigned to the 511th Engineer Company. His military occupational specialty was bridge specialist. According to the RO memorandum, records of the US Army Vietnam as maintained in the Installation Directory of June 10, 1966, April 1, 1967, and November 1, 1967 all verified that the 511th Engineer Company was stationed in An Khe during the veteran's entire tour of duty in Vietnam. The book "Where We Were in Vietnam" by Michael P. Kelley indicates that An Khe and Camp Radcliff were co-located and that Camp Radcliff was known as An Khe Base Camp. Records of the United States Military Assistance Command Vietnam for the month of April 1967 confirm that Camp Radcliff received 80 rounds of mortar fire that month. Two United States personnel were wounded in action, and light helicopter damage was reported. Other records reveal that the 1st Cavalry Division support in An Khe was hit with 40 rounds of mortars in September 1966; light US casualties were reported. Both events took place at Camp Radcliff. The SVSR summarized that according to the service personnel records, the veteran served with the 511th Engineer Company from May 1966 to November 1967. The SVSR further concluded that military records confirmed that the 511th was located at An Khe and that the military base camp, Camp Radcliff, was attacked at least twice while the veteran was there. The SVSR concluded that there was no information to suggest that the veteran was not present during the September 1966 and April 1967 attacks of the An Khe base camp. The Board notes that the record includes allegations of stressors other than those outlined above. The Board need not delve into a discussion of them as those already discussed are sufficient to establish the veteran's claim. Precedent holdings of the Court provide specific guidance for the adjudication of PTSD claims when the claimed stressor is exposure to enemy fire. See Pentecost v. Principi, 16 Vet. App. 124 (2002); see also Suozzi v. Brown, 10 Vet. App. 307 (1997). These cases, taken together, stand for the proposition that if a veteran may be placed in the vicinity of a documented incident, it is not necessary that his exact location be pinpointed. The Court has expressly held that a veteran need not prove "every detail" of an alleged stressor under such circumstances. Accordingly, as the veteran's unit was in the vicinity of Camp Radcliff in An Khe on dates in which mortar fire has been confirmed, he may be placed in the vicinity of the mortar attacks discussed above, and his alleged stressors are, therefore, supported. It is not totally clear from the personnel records that the veteran was in the An Khe area after May 1967, but his presence there at the time of the early May 1967 attack. Because the veteran's currently diagnosed PTSD has been linked to verified stressors, service connection for PTSD is granted. 38 C.F.R. §§ 3.303, 3.304. (CONTINUED ON NEXT PAGE) ORDER Service connection for chloracne is denied. Service connection for memory loss is denied. Service connection for keratosis pilaris is denied. Service connection for residuals of a left foot injury is denied. Service connection for PTSD is granted. ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs