Citation Nr: 0810809 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-17 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for an enlarged prostate, claimed as due to herbicide exposure. 2. Entitlement to service connection for post-traumatic stress disorder. 3. Entitlement to service connection for a lumbar spine disorder. 4. Entitlement to service connection for skin disorder, claimed as due to herbicide exposure. 5. Entitlement to an increased rating for a left knee disorder involving recurrent subluxation or recurrent instability due to traumatic arthritis and a rupture of the anterior cruciate ligament, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from October 1969 to September 1971, including service in the Republic of Vietnam from November 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in June 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, granting service connection for a left knee disorder manifested by a reduction in range of motion of the left knee joint assigning a rating therefore, and denying service connection for post-traumatic stress disorder (PTSD), as well as lumbar spine and skin disorders. In addition, the veteran's claim for increase for a left knee disorder manifested by recurrent subluxation or lateral instability, evaluated as 10 percent disabling, was denied. In his notice of disagreement received by the RO in August 2004, the veteran indicated that he was satisfied with the rating assigned for his left knee disorder based on limitation of motion caused by traumatic arthritis and not appealing that question; as such, that matter is not herein addressed. In his substantive appeal, received by the RO in May 2005, the veteran requested RO and Board hearings. An RO hearing was thereafter scheduled to occur in November 2005, but prior to its occurrence the veteran requested that he be afforded an informal conference before the RO's decision review officer. Such a conference occurred in November 2005, at which time the veteran withdrew from appellate consideration the issues of his entitlement to service connection for prostate enlargement and a skin disorder, both claimed to be due to herbicide exposure. Pursuant to his request, the veteran was afforded a hearing before the Board, sitting at the RO, in July 2007, at which he confirmed that he was withdrawing his appeal for service connection for prostate enlargement. He nevertheless offered testimony and evidence in support of his entitlement to service connection for a skin disorder and, thus, he has repudiated his earlier withdrawal of that matter and such issue remains within the Board's jurisdiction for review. In addition to further documentary evidence in support of his claim for service connection for a skin disorder, the veteran at his July 2007 hearing also submitted additional evidence as to the other matters remaining on appeal, along with a written waiver for its initial consideration by the RO. The issues of the veteran's entitlement to service connection for lumbar spine and skin disorders and for an increased rating for a left knee disorder involving recurrent subluxation or recurrent instability due to traumatic arthritis and a rupture of the anterior cruciate ligament are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The veteran at his July 2007 hearing withdrew from appellate consideration the issue of his entitlement to service connection for an enlarged prostate, claimed as due to herbicide exposure. 2. The veteran engaged in combat with the enemy while on active duty in Nha Trang, Vietnam. 3. Credible, persuasive evidence indicates that the veteran experienced a combat-related stressor while in service, which resulted in the post-service onset of PTSD related thereto. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the veteran-appellant as to the issue of his entitlement to service connection for an enlarged prostate, claimed as due to herbicide exposure, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. PTSD was incurred in service. 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 Service Connection: Enlarged Prostate Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, the veteran, by means of hearing testimony set forth in July 2007 that was subsequently reduced to writing, indicated that he was withdrawing from appellate consideration the issue involving his entitlement to service connection for an enlarged prostate, claimed as due to herbicide exposure. Hence, there remain no allegations of errors of fact or law for appellate consideration as to that matter, and as the Board does not have jurisdiction to review the appeal relating thereto, it must be dismissed. Service Connection: PTSD Preliminarily, it is noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), became law in November 2000, and was thereafter codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the VCAA, VA promulgated regulations now codified, in pertinent part, at 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2007). The VCAA has also been the subject of various holdings of Federal courts. However, as the dispostion reached in this matter is wholly in the veteran's favor, the need to discuss VA's efforts to comply with the VCAA, its implementing regulations, and the interpretive jurisprudence, is obviated. 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). 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). Service connection requires medical evidence of a current disability; medical, or in some cases, lay evidence of the in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the current disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). As provided by 38 C.F.R. § 3.304(f), 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. Notably, the evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Where it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of such service." Id. In a decision from the United States Court of Appeals for Veterans Claims (Court), the Court held that one cannot conclude from the mere absence on a veteran's Department of Defense Form 214, Report of Separation or Discharge, of a medal or citation evincing combat that the veteran in fact did not engage in combat with the enemy. Daye v. Nicholson, 20 Vet. App. 512 (2006). While Daye involved missing service records, which triggered a heightened duty to assist, it is pertinent to note that the Court pointed out that VA had failed to notify the veteran of securing evidence from alternative sources, to include "buddy" statements, nor had VA in that case, as in the case at hand, made any attempt to verify claimed combat duty through unit histories or other documents at the United States Armed Services Center for Research of Unit Records (USASCRUR) (since renamed the U.S. Army and Joint Services Records Research Center (USAJSRRC)) or other official sources. The Board further notes that, with respect to being subjected to weaponry fire, to include mortar or rocket attacks on a base, corroboration of every detail of such a claimed stressor, including personal participation, is not required; independent evidence that the incident occurred is sufficient. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307, 310-311 (1997). The fact that a veteran was stationed at a locale where some of the asserted events occurred would strongly suggest that he was, in fact, exposed to those events. Pentecost, supra. If, however, it is determined that the veteran did not engage in combat, then his lay testimony, by itself, is insufficient to establish the alleged stressor(s). Instead the record must contain service records or other independent credible evidence to corroborate the veteran's account of in-service stressors. Dizolgio v. Brown, 9 Vet. App. 163, 166 (1996). In sum, if the claimed stressor is not combat-related, the veteran's lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Where a current diagnosis of PTSD exists, the sufficiency of the claimed in- service stressor is presumed; the Board can reject favorable medical evidence as to stressor sufficiency only on the basis of independent medical evidence, accompanied by an adequate statement of reasons or bases, and only after first seeking clarification of an incomplete examination report (whether or not such clarification is actually provided by the original examiner) pursuant to applicable VA regulatory provisions. Id. at 142-144. The veteran in this instance is shown to have served in Phu Lam, Vietnam, from November 1970 to September 1971, primarily as a power pack specialist. He has nevertheless provided credible, sworn testimony that he was detailed to Nha Trang for a period of months beginning in or about February 1971 and traveled back and forth on a regular basis to Phu Lam. While at Nha Trang, the veteran reports that he was subject to one or more enemy attacks, inclusive of mortar and rocket attacks. In one of those attacks, a mortar or rocket struck within close proximity of the veteran, killing a fellow soldier and destroying a portion of the air base at Nha Trang where he was disassembling electric generators. Moreover, the veteran's credible testimony is bolstered by photographs taken by himself and others prior to and following the attack and those pictures depict a hilly, uneven terrain in the background, such as one might encounter in Nha Trang, as well as destroyed portions of surrounding structures, as one might expect to find following a rocket or mortar attack. The RO it is noted determined at least initially through its internet research that there had been no mortar attacks in the area of Nha Trang during the period in question, with most of the enemy attacks occurring in that area during the Tet Offensive in 1968 and 1969. From 1970 to 1972, the signal units in Phu Lam and Nha Trang were reportedly downsized and that that period was reported to be peaceful based on available reports. Other RO research in or about August 2006, as set forth in an RO memorandum of the same month, points to documented rocket and mortar attacks at Nha Trang in August 1970 and again on February 1 and 15, 1971, albeit without any reported soldiers killed or wounded in action. Review by the USAJSRRC of operational reports and lessons learned of the Headquarters, U. S. Army Strategic Communications Command, Signal Support Agency, for the period from February 28 to April 30, 1971 failed to identify any enemy attacks or disposal of dead bodies in body bags at Phu Lam or Nha Trang in March 1971, nor was there evidence of any such attacks at Saigon in March 1971. Notwithstanding the veteran's recollection that the rocket and mortar attack at Nha Trang occurred in March 1971 on his birthday, the Board finds its likely that the attack referenced by him occurred during February 1971, and by his own testimony, which the Board finds persuasive, he was on temporary assignment to Nha Trang beginning in February 1971 for what is referenced as a "tear down" of power generators. The record, including the conflicting research findings of the RO and the USAJSRRC's review, does not otherwise contradict any of the foregoing. To the extent that there is evidence supporting and contradicting the veteran's engagement in combat with the enemy and the occurrence of a combat-related stressor, the Board is persuaded by the credible testimony of the veteran as to the foregoing, which is supported by the photographs taken at the time or shortly after the claimed incident at Nha Trang. To that end, it is conceded that the veteran engaged in combat with the enemy and his account of the combat-related stressor in Nha Trang in or about February 1971 is deemed adequate. See 38 U.S.C.A. § 1154 (West 2002). As it is shown that the veteran was engaged in combat with the enemy and that his claimed stressor was combat-related, there remain for consideration only the questions of whether the record supports a diagnosis of PTSD and identifies a relationship of the verified stressor to such PTSD. Here, the veteran has not been afforded a VA psychiatric examination, but that notwithstanding, his attending mental health professionals, including a VA staff psychiatrist, have offered diagnoses of PTSD over a period of years. Moreover, treatment records are reflective of the veteran's account of dreams and intrusive thoughts regarding the mortar/rocket attack at Nha Trang, and it is noted that the veteran makes reference to a recurring image in his mind as to the eyes of his fellow soldier who perished in the attack and the recurring presence of that image in flashbacks or nightmares. To that extent, a diagnosis of PTSD meeting the prerequisites of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) and medical evidence of a link between current symptoms and an in-service stressor are demonstrated. On the basis of the foregoing, service connection for PTSD is in order. ORDER The issue of the veteran's entitlement to service connection for an enlarged prostate, claimed as due to herbicide exposure, is dismissed. Service connection for PTSD is granted. REMAND Regarding his claimed lumbar spine disorder, the veteran concedes that he entered service with an extra lumbar vertebra and that, because of various training exercises and the general rigors of service, he developed pain of his low back while on active duty. Current evidence demonstrates the continued presence of an extra vertebra, otherwise referred to as a transitional lumbar vertebra, as well as degenerative joint and disc disease of the veteran's lumbar spine. The veteran in effect alleged that his pre-existing lumbar spine disorder underwent in-service aggravation and is now manifested in part by the joint and disc disease. Further medical input, to include a VA medical examination, is in order to address more fully the question of in-service aggravation and to determine what relationship, if any, exists between the veteran's extra lumbar vertebra and the joint and disc disease first shown after service. With respect to the veteran's claim for service connection for a skin disorder, he alleges that he now has a skin disorder that is the result of in-service exposure to herbicides, including Agent Orange, which he himself sprayed around the perimeter of his base camp. Peeling of the skin of his hands is noted to occur several times yearly and the veteran reports that such phenomenon has occurred since his service in Vietnam. Medical data developed post-service denote entry of skin-related diagnoses of dyshidrosis, eczema of the hands, and possible contact dermatitis. Additional medical examination is deemed necessary in order to verify the nature and etiology of the veteran's claimed skin disorder. As well, notice is taken that, following the veteran's withdrawal of his appeal for service connection for a skin disorder in November 2005 (which as noted in the Introduction above was subsequently repudiated), the RO undertook no further development of that portion of the veteran's appeal. In this regard, it is noted that the skin issue was not addressed by the RO in its supplemental statement of the case of June 2007, although much evidence relating thereto was received by the RO subsequent to its issuance of a statement of the case in March 2005. Remand to permit the RO to comply with 38 C.F.R. § 19.31 (2007) for issuance of a supplemental statement of the case is needed. As to the lone remaining issue on appeal, the veteran's entitlement to an increased rating for a left knee disorder, testimony was received at the recent hearing that there had been a worsening of such disability since it was last examined by VA. In fact, the veteran requested that a current VA medical examination be undertaken to verify the current level of disablement of his left knee. Review of the record indicates that the veteran was most recently evaluated by VA in January 2006, and prior thereto, in March 2004, and that on each occasion, the veteran's claims folder was not made available to the VA examiner. As well, while there was no indication of instability on the most recent examination, the existence of recurrent subluxation was not referenced. Also, shortening of the left leg by one inch was attributed to the veteran's left knee disorder; however, the RO did not thereafter attempt to rate the disorder in question on that basis. On the basis of the foregoing, further medical examination by VA to assess the nature and severity of the veteran's left knee disorder manifested by instability or subluxation is warranted. Accordingly, this portion of the appeal is REMANDED for the following actions: 1. Consistent with the provisions of 38 U.S.C.A. §§ 5100, 5103 (West 2002) and 38 C.F.R. § 3.159 (2007), the veteran must be notified of what information and evidence are still needed to substantiate his claims for service connection for a lumbar spine disorder and for a skin disorder claimed to be the result of herbicide exposure and his claim for increase for a left knee disorder manifested by lateral instability or recurrent subluxation. He should be specifically advised to submit all pertinent records of medical treatment, not already on file, which are held in his possession and to notify the RO/AMC to obtain any pertinent records of private medical care not already on file, which he is able to identify sufficiently and for which he authorizes their release. Depending upon the veteran's response, any and all assistance due him must then be provided by VA. 2. Any pertinent VA medical treatment records, not already contained within the claim file, should be obtained and made a part of the claims folder. 3. Thereafter, the veteran should be afforded VA orthopedic and dermatological examinations in order to identify the nature and etiology of claimed lumbar spine and skin disorders and to ascertain the nature and severity of his service- connected left knee disorder, manifested by lateral instability or recurrent subluxation. The claims folder should be made available to each examiner for use in the study of this case and the prepared report of each such evaluation should indicate whether the claims folder was made available and reviewed. Such examinations should include a review of the evidence in the claims folder, a comprehensive clinical evaluation, and any tests deemed necessary, followed by entry of all pertinent diagnoses. The orthopedic examiner is asked to note whether there is clinical evidence of lateral instability or recurrent subluxation of the veteran's left knee, and, if so, the degree to which either or both is present should be quantified in terms of being mild, moderate, or severe. In addition, the orthopedic examiner is asked to respond to the following questions, providing a rationale for each response provided: (a) Is the veteran's extra lumbar vertebra, otherwise referred to as a transitional vertebra, a congenital disorder? (b) Is it unequivocal that the veteran's preexisting extra lumbar vertebra or transitional vertebra underwent aggravation in service? (c) Is it at least as likely as not (50 percent or greater degree of probability) that the lumbar spine disorders shown post-service bear any relationship to the veteran's extra lumbar vertebra or transitional lumbar vertebra, and if so, what is the nature of that relationship, and, specifically, is there a direct, cause and effect relationship between the pre- existing extra/transitional lumbar vertebra and the degenerative joint and disc disease of the lumbar spine shown post-service? The skin examiner is asked to furnish a professional medical opinion as to the following, providing a complete rationale where indicated: (a) Does the veteran have chloracne, other acneform disease consistent with chloracne, or porphyria cutanea tarda? (b) Is it at least as likely as not (50 percent or greater degree of probability) that any current skin disorder of the veteran had its onset during his period of active duty from October 1969 to September 1971 or is otherwise related to any in-service event, inclusive of presumed herbicide exposure? Use by either examiner of the "at least as likely as not" language in responding is required. Each examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The orthopedic examiner is also informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If either examiner must resort to speculation to answer any question, the examiner should make note of such in his report. 4. Lastly, the veteran's claims of entitlement to service connection for lumbar spine and skin disorders and his claim for increase of a left knee disorder manifested by lateral instability or recurrent subluxation should be readjudicated on the basis of all of the evidence of record, including that pertaining to the veteran's skin disorder which was received subsequent to the issuance of the statement of the case in March 2005, and all governing legal authority. If any benefit sought on appeal remains denied, the veteran and his representative must be provided with a supplemental statement of the case, which must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues remaining on appeal. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the AMC/RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain additional evidentiary and procedural development. No inference should be drawn as to the outcome of this matter by the actions herein requested. ______________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs