Citation Nr: 0810997 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-26 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for an eye disorder, to include as secondary to hepatitis C. 4. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, to include as due to herbicide exposure. 5. Entitlement to service connection for a bilateral foot condition, claimed as jungle rot, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Joann Eastman, Agent ATTORNEY FOR THE BOARD K. Ahlstrom, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board notes that the veteran was scheduled to appear for a hearing before a Decision Review Officer (DRO) in May 2007. However, he failed to report for this hearing and provided no explanation for his failure to report. The veteran's request for a hearing, therefore, is deemed to have been withdrawn. 38 C.F.R. § 20.704(d) (2007). The Board notes that the February 2005 rating decision on appeal also denied the veteran's claims for service connection for a skin condition of both arms, basal cell cancer of the back, and malaria. The veteran's May 2005 notice of disagreement did not specifically state his intent to appeal these issues, but indicated that he disagreed with the entire February 2005 rating decision. Thus, the July 2005 statement of the case contained an analysis of these issues, in addition to the issues currently on appeal. In his August 2005 substantive appeal, the veteran specifically indicated that he was appealing only the denial of service connection for hepatitis C, PTSD, the eye condition, peripheral neuropathy of the lower extremities, and jungle rot. The veteran did not indicate that he wished to appeal the denial of service connection for a skin condition of both arms, basal cell cancer of the back, or malaria. The Board may only exercise jurisdiction over an issue after a veteran has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002); Roy v. Brown, 5 Vet. App. 554 (1993). Accordingly, the issues of entitlement to service connection for a skin condition of both arms, basal cell cancer of the back, and malaria are not before the Board as part of this appeal. The issues of entitlement to service connection for hepatitis C, PTSD, and an eye condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. Bilateral peripheral neuropathy of the lower extremities was not manifested in service or within one year of discharge from service, and is not otherwise related to service. 2. The evidence of record does not demonstrate a current disability involving the skin of the feet. CONCLUSIONS OF LAW 1. The veteran's bilateral peripheral neuropathy of the lower extremities was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 2. The criteria for service connection for a bilateral foot condition, claimed as jungle rot, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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). Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A VA letter dated in February 2004 satisfied VA's duty to notify under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159, as it informed the veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and what evidence the veteran should provide, including dates and places the veteran received medical treatment, informed the veteran that it was his responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claims, and asked the veteran, essentially, to send in any evidence in the veteran's possession that pertains to the claims. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The veteran was supplied with notice of the type of evidence necessary to establish an effective date or higher rating by letter dated February 2008. While this letter post-dated the original adjudication of this claim, service connection for bilateral peripheral neuropathy and jungle rot is being denied, and as such, no effective date or rating percentage will be assigned. The Board thus finds that there can be no possibility of any prejudice to the veteran under the holding in Dingess, supra. The Board is not aware of the existence of additional relevant evidence in connection with the veteran's claims that VA has not sought. The veteran's service medical records, VA medical records, and lay statements have been associated with the record. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. No VA examination is necessary to satisfy the duty to assist in the veteran's claim for service connection for jungle rot. Under 38 U.S.C.A. § 5103A(d)(2), VA must obtain a medical examination or opinion when such is necessary to make a decision on a claim. Specifically, a VA examination is required where the record contains competent evidence of a current disability, and indicates that the disability or symptoms may be associated with military service, but does not contain sufficient evidence for the Secretary to make a decision. Id. The record does not contain any evidence of such a disability and the veteran does not contend that he currently suffers from a skin disorder of the feet. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the veteran by VA would be capable of substantiating his claims. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. Service Connection: Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a). Service connection may be granted where the evidence shows that a veteran had a chronic condition in service or during an applicable presumption period and still has the condition. 38 C.F.R. §§ 3.303(b); 3.307, 3.309. Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The following diseases shall be service connected if the veteran was exposed to an herbicide agent during active service: chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, type II diabetes mellitus, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e). For the purposes of 38 C.F.R. § 3.309(e), acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. To be eligible for presumptive service connection pursuant to the provisions of 38 C.F.R. § 3.307(a)(6)(ii), peripheral neuropathy must become manifest to a compensable degree within one year from the last exposure. Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The veteran's service personnel records show that he had active military service in the Republic of Vietnam during the Vietnam Era (he served there from December 1968 to December 1969) and, thus, exposure to herbicides is assumed. 38 C.F.R. § 3.307(a)(6)(iii). Service Connection for Peripheral Neuropathy The veteran was diagnosed by electromyelogram with severe axonal sensorimotor peripheral neuropathy of his lower extremities in June 2005. The veteran contends that his peripheral neuropathy is due to his exposure to Agent Orange while in Vietnam. The veteran's service medical records contain no evidence of complaints, treatment, or diagnoses of peripheral neuropathy. The veteran's April 1970 separation examination notes normal neurological examination. However, on the accompanying report of medical history, the veteran did report that he had past or current complaints of "foot trouble," but denied ever having "neuritis." The earliest evidence of record referring to a diagnosis of peripheral neuropathy is the April 2004 VA examination (performed and prepared by QTC Medical Services, Inc.). The examiner stated that the veteran had been suffering from peripheral neuropathy for 34 years. The examiner did not provide a basis for this statement, and it appears to be based on the veteran's statements. The examiner did not provide an opinion as to whether the veteran's peripheral neuropathy was at least as likely as not due to exposure to herbicides. An August 2005 VA treatment record indicates that although the veteran believed his peripheral neuropathy was related to toxin exposure in Vietnam, other etiologies include alcohol abuse, as the veteran was a heavy drinker in the past. The first diagnosis of peripheral neuropathy of record was in 2004, which is more than 30 years after his exposure to herbicides in service. See 38 C.F.R. §§ 3.307, 3.309. Thus, based on the definition provided in 38 C.F.R. § 3.309(e), Note 2, the veteran's peripheral neuropathy is not subacute or acute. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996). For this reason, the veteran's peripheral neuropathy cannot be presumptively related to his herbicide exposure in service. Service connection also is not warranted on a direct basis. As noted, the service medical records are negative for any complaints of symptoms of peripheral neuropathy. Additionally, there is no medical evidence of continuity of symptomatology of peripheral neuropathy from service or during the more than 30 years before this disability was shown. See Savage v. Gober, 10 Vet. App. 488 (1997). The Board acknowledges the QTC examiner's statement that the veteran's peripheral neuropathy had existed for 34 years, but notes that this statement appears to be based on history provided by the veteran. LeShore v. Brown, 8 Vet. App. 406 (1996) (the veteran's self-reported lay history does not render the opinion competent medical evidence). Further, while the veteran contends that he has experienced throbbing and numbness in his lower extremities for the last 37 years, he has not indicated that he has received medical treatment for these complaints prior to his January 2004 service connection claim. Therefore, the absence of evidence of medical treatment for peripheral neuropathy for more than 30 years following the veteran's discharge from service weighs against the veteran's service connection claim. Although the veteran has argued that his current peripheral neuropathy of both feet is related to exposure to herbicides in service, this is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the Board has considered the veteran's lay assertions, they do not outweigh the medical evidence of record, which does not show any relation between the veteran's bilateral peripheral neuropathy of the lower extremities and service. Indeed, the only opinion of record concerning the etiology of the veteran's peripheral neuropathy includes a reference to alcohol abuse as the possible culprit. For these reasons, the Board finds that a preponderance of the evidence is against the veteran's claim, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Consequently, the Board finds that service connection for bilateral peripheral neuropathy of the lower extremities is not warranted. Service Connection for Foot Condition Since jungle rot is not one of the presumptive disorders listed in 38 C.F.R. § 3.309(e), the veteran's claim for service connection will be considered only on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The service medical records are absent complaints, findings or diagnoses of any skin disorder involving the feet during service. The veteran's April 1970 report of medical history does indicate that the veteran had either past or current complaints of "foot trouble." There is no post-service evidence of record that establishes a disorder of the veteran's feet, to include jungle rot. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Further, the veteran does not contend that he currently experiences symptomatology associated with jungle rot. Rather, the veteran states that his feet were "rotted to the bone" when he left Vietnam, but that he never informed anyone of this. For these reasons, the Board finds that a preponderance of the evidence is against the veteran's claim, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Consequently, the Board finds that service connection for a bilateral foot condition, claimed as jungle rot, is not warranted. ORDER Service connection for bilateral peripheral neuropathy of the lower extremities is denied. Service connection for a bilateral foot condition, claimed as jungle rot, is denied. REMAND The veteran was diagnosed with hepatitis C in April 2004. The veteran contends that he was infected with hepatitis C as a result of in-service dental work. Specifically, the veteran contends that the dentist worked on several patients without changing surgical gloves. In the April 2004 hepatitis risk factor questionnaire, the veteran denied all major risk factors, including intranasal cocaine and tattoos. The veteran underwent a VA QTC examination in April 2004 and again denied all risk factors. A December 2003 private treatment report notes a brief, remote history of cocaine abuse and shared straws. This report also mentions a blood transfusion during an appendectomy in 1969, but the veteran states that this information is incorrect, and that he is not sure if his appendectomy involved a blood transfusion; the veteran further states that he was unable to obtain medical records from the 1969 appendectomy. In an April 2004 PTSD assessment report, the veteran stated that he used opium once while in service in Vietnam. An April 2005 gastroenterology consultation report notes the presence of tattoos and intravenous drug use in 1968 as positive risk factors. The record contains contradictory reports concerning the veteran's exposure to known risk factors for hepatitis C. Additionally, the veteran's contention that he was exposed to hepatitis C as a result of in-service dental work was not considered by the QTC examiner. Given the preceding evidence, it appears that a VA examination for the purpose of a nexus opinion is necessary because (1) the veteran has a current diagnosis of hepatitis C; (2) the veteran's service medical records indicate that the veteran did undergo extensive dental work, and the evidence of record suggests possible intranasal or intravenous drug use during service; and (3) the evidence indicates that the claimed disability may be associated with the veteran's active service. See McClendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that the latter element is a low threshold). As the issue of service connection for hepatitis C is being remanded for additional development, and the evidence of record demonstrates that the veteran's bilateral eye condition is due to hepatitis C treatment, the issue of service connection for an eye condition should be held in abeyance. In the event that the additional development leads to a grant of service connection for hepatitis C, the RO should arrange for the veteran to undergo a VA examination to determine if he currently suffers from an eye condition, and, if so, if the condition is etiologically related to the veteran's hepatitis C treatment. Turning to the veteran's claim of service connection for PTSD, the veteran contends that he currently suffers from PTSD as a result of his experiences in Vietnam. Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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 veteran served in the 124th Transportation Company in Vietnam from December 30, 1968 to December 29, 1969. The veteran contends that he was stationed at Cat Lai with the 124th Transportation Company, and that the base was constantly hit by mortar fire and rocket attacks. The veteran also contends that he was hit by shrapnel during one such mortar attack, and received treatment. However, the veteran's service medical records do not verify such an injury. The veteran further contends that he had to pull a dead body out of the river, that he was ordered to shoot an alleged spy but was unable to do so, and that he drove a Vietnamese girl off of the road and into a ditch. The Board notes that the veteran does not supply dates or locations for any of these events; nor does the veteran provide names of individuals involved with the events. Therefore, the veteran has not provided sufficient information to allow for verification of these alleged stressors. However, the veteran has indicated the location and approximate dates of an in-service stressor, the mortar and rocket attacks at Cat Lai, as well as identified his unit of assignment at the time the stressful event occurred. Review of the record shows there has been no attempt to verify any of the veteran's claimed stressors by contacting the U.S. Army and Joint Services Records Research Center (JSRRC), or to obtain unit histories. The unit records of the 124th Transportation Company for the period of time the veteran was in Vietnam, from December 30, 1968 to December 29, 1969, should be obtained. An April 2004 VA PTSD assessment report reveals a diagnosis of PTSD, which the examiner opines developed in response to the veteran's experiences in Vietnam. This report also includes diagnoses of panic disorder with agoraphobia and major depressive disorder. The duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is necessary when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). Given the preceding evidence, it appears that a VA psychiatric examination is necessary because (1) the record contains competent lay evidence related to a mental disorder; (2) the veteran has reported experiencing traumatic events in service; and (3) the evidence indicates that the claimed disability may be associated with in-service injuries. See McClendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that the latter element is a low threshold). Accordingly, the case is REMANDED to the AMC for the following action: 1. Schedule the veteran for a VA examination for his hepatitis C. Ask the examiner to review the claims file in conjunction with the examination, particularly the divergent accounts of possible risk factors, and to make a note of such a review in the examination report. Have the examiner conduct all necessary tests and provide an opinion as to whether the veteran's hepatitis C is at least as likely as not (50 percent probability or more) related to the veteran's active service, to include any dental work or drug use. 2. If, and ONLY IF, the veteran is found to have hepatitis C which is related to service should he be afforded a VA examination of his eyes to determine if he suffers from an eye disorder. The claims file must be made available to the examiner for review and the examiner should be expressly informed of the hepatitis C diagnosis and current treatment regimen. After reviewing the claims file and examining the veteran, the examiner should then clearly indicate whether or not the veteran currently suffers from an eye disorder. If so, the examiner should be asked whether it is at least as likely as not (50 percent or greater probability) that the current eye disorder is related to or aggravated by the veteran's hepatitis C treatment. 3. The AOJ should request that JSRRC obtain any available records pertaining to air operations and enemy rocket or mortar attacks at Cat Lai from December 30, 1968 to December 29, 1969, and obtain unit histories. 4. Schedule the veteran for a VA psychiatric examination to determine the nature and etiology of any mental disorder which may currently be present. The claims folder and a copy of this remand must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based upon the claims folder review and the examination results, the examiner should identify all currently present acquired psychiatric disorders. The examiner should provide an opinion as to whether the veteran has a current diagnosis of PTSD that is more likely than not due to a stressor which has been verified. If PTSD due to a verified in- service stressor is diagnosed, the examiner should identify the elements supporting the diagnosis. If the examiner does not diagnose PTSD due to an in-service stressor, the examiner should explain why the veteran does not meet the criteria for a diagnosis of PTSD. If the veteran is found to have any other acquired psychiatric disorder other than PTSD, the examiner should provide an opinion with respect to each such disorder as to whether it is at least as likely as not (a 50 percent probability or more) that the disorder is etiologically related to the veteran's active duty. 5. After completion of the above and any additional development deemed necessary, the AMC should readjudicate the claims of service connection for hepatitis C, PTSD, and an eye condition. If the determination remains unfavorable to the veteran, the AOJ must issue a Supplemental Statement of the Case and provide the veteran and his agent a reasonable period of time in which to respond before this case is returned to the Board. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs