Citation Nr: 0811877 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-35 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for skin cancer. 2. Entitlement to service connection for left knee arthritis. 3. Entitlement to service connection for residuals of a right knee injury. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from July 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2004, the veteran filed claims of entitlement to service connection for PTSD and residuals of a right knee injury. These claims were denied by a rating decision dated in March 2005. The veteran filed a timely notice of disagreement (NOD) in May 2005 and perfected his appeal in October 2005. The veteran filed claims of entitlement to service connection for skin cancer and left knee arthritis in June 2006. A rating decision in September 2006 denied the veteran's claims. He subsequently filed a NOD in September 2006 and perfected his appeal in November 2006. These two appeals have been merged for the purposes of this adjudication. The Board notes that in March 2006, the veteran withdrew his claim of entitlement to service connection for stenosis of the aortic valve with an embolism of the aorta near the kidneys and his petition to reopen a claim of entitlement to service connection for an ear injury. As such, these issues are not before the Board. It is also noted that in December 2006, a rating decision was issued which declined to reopen the veteran's claim of entitlement to service connection for dizziness and vertigo. The veteran has not expressed disagreement with this decision. FINDINGS OF FACT 1. Skin cancer was not affirmatively shown during service; was not manifested to a compensable degree within one year after the veteran's separation from service; and is otherwise unrelated to an injury, disease, or event during service. 2. Left knee arthritis was not affirmatively shown during service; was not manifested to a compensable degree within one year after the veteran's separation from service; and is otherwise unrelated to an injury, disease or event during service. 3. A right knee injury, to include a shrapnel wound and degenerative joint disease, was not affirmatively shown during service; arthritis was not manifested to a compensable degree within one year after the veteran's separation from service; and right knee injury residuals are otherwise unrelated to an injury, disease or event during service. 4. The veteran did not engage in combat during his time in active service; there is no credible supporting evidence to establish that the claimed stressors actually occurred. CONCLUSIONS OF LAW 1. Skin cancer was not incurred in or aggravated by active military service, and service connection for skin cancer as a chronic disease may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Left knee arthritis was not incurred in or aggravated by active military service, and service connection for left knee arthritis as a chronic disease may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. Residuals of a right knee injury were not incurred in or aggravated by active military service, and service connection for residuals of a right knee injury, to include arthritis disease as a chronic disease, may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 4. PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to the initial adjudications of the veteran's claims, letters dated in November 2004 and July 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The aforementioned letters told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. The veteran was provided with notice of how VA determines disability ratings and effective dates in letters dated in March 2006 and July 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, the Board notes that the veteran has been represented by counsel during the course of these claims. Counsel has argued the substance of this case in many communications with VA, making reference to the standards of proof and the burdens necessary to establish entitlement to service connection. These statements demonstrate that the veteran had actual knowledge of the notice requirements of the VCAA. The Board concludes that any error in the provision of VCAA compliant notice was harmless. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes that examinations for the knee and skin cancer claims are not needed in this case because the only evidence indicating the veteran "suffered an event, injury or disease in service" is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). There is no reasonable possibility that medical opinions would aid in substantiating the veteran's claims since they could not provide evidence of past events. The veteran was afforded a VA PTSD medical examination in October 2005 to obtain an opinion as to whether his PTSD can be directly attributed to service. Further examination or opinion is not needed on the PTSD claim because, at a minimum, there is no persuasive and competent evidence that the claimed stressors actually occurred in service. This is discussed in more detail below. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. The Merits of the Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). 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. See 38 C.F.R. § 3.303(b) (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. See 38 C.F.R. § 3.303(b) (2007). For certain chronic disorders, including cancer and arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). A. Service Connection for Skin Cancer, Left Knee Arthritis and Residuals of a Right Knee Injury The veteran alleges that he (1) developed skin cancer as the result of extensive exposure to the sun while serving in the South Pacific during World War II; (2) developed left knee arthritis from spending many hours standing on a metal deck placing stress on his knee; and (3) suffers from residuals of a right knee injury in service when he was wounded by shrapnel. The veteran's service medical records are completely negative for any complaints of skin cancer, arthritis and knee injuries. The veteran alleges that during his time in service when he sustained his alleged injuries, there were no medical personnel aboard his ship to document his complaints and injuries. However, the veteran's service separation examination in June 1946 noted the veteran's skin and joints were normal. The veteran was first diagnosed with squamous cell carcinoma of the left ear in September 1994. The record refers to a total left knee replacement but does not indicate a diagnosis of arthritis of the left knee and the veteran was not diagnosed with degenerative joint disease of the right knee until 2004. These diagnoses are well beyond the one-year period for presumptive service connection for cancer and arthritis as chronic diseases under 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). With regard to the decades-long evidentiary gap in this case between active service and the earliest skin cancer, arthritis and knee complaints, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claims that the veteran had injuries in service that resulted in chronic disabilities or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing skin cancer, arthritis or knee complaints, symptoms, or findings for approximately 50 years between the period of active duty and the first medical reports of skin cancer dated in 1994 and right knee complaints in 2004 (almost 60 years after service) is itself evidence which tends to show that these disabilities did not have their onset in service or for many years thereafter. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003). Though the Board acknowledges that the veteran currently suffers from disabilities of the knees, arthritis and recurrent skin cancer, there is no medical evidence connecting these disabilities with the veteran's time in service. The only remaining evidence is the veteran's lay statements. The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to discuss in-service injury. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). As such, the fact remains that there is no competent medical evidence on file linking the veteran's current skin cancer, arthritis and knee disabilities to service or to any incident of service, despite his assertion that such causal relationships exit. As there is no evidence of skin cancer, arthritis or knee injuries in service; within one year subsequent to service discharge; and no evidence which provides the required nexus between military service and the current disabilities, service connection has not been established. As the Board may consider only independent medical evidence to support its findings, and, as there is no favorable medical evidence to support the claims for the reasons articulated, the preponderance of the evidence is against the claims, and the benefit-of-the-doubt standard of proof does not apply. See 38 U.S.C.A. § 5107(b) (2007). B. Post-Traumatic Stress Disorder The veteran alleges that he currently suffers from PTSD due to combat experiences during World War II. Specifically, the veteran stated that he was aboard the U.S.S. MOSES ROGERS in February 1945, when he and his crew were terrified by enemy air raids. The veteran reported that while anchored in Manila Bay in June or July 1945, his ship was disabled and was adrift for several days. The veteran stated that he was terrified of his ship being sunk by enemy submarines. He and his crew were required to be on constant alert and worked in four-hour shifts. The veteran also reported being exposed to combat in Manila when the shore was bombed and the veteran remembered seeing a church destroyed. 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. See 38 C.F.R. § 3.304(f) (2007). Initially, the Board acknowledges that the veteran has received medical diagnoses of PTSD, attributed to his account of his military service. Nevertheless, the Board is unable to accept the diagnosis as based upon a confirmed stressor because the preponderance of the evidence is against a finding that the veteran engaged in combat with the enemy during active service, and the record does not otherwise contain independent evidence, which confirms his account of in-service stressors. The Board must assess the credibility and weight of all the evidence, including the medical evidence. "Just because a physician or other health professional accepted appellant's description of his service experiences as credible and diagnosed appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for PTSD." See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept a veteran's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. "Credible supporting evidence" of a non-combat stressor may be obtained from service records or other sources. See Moreau v. Brown, 9 Vet. App. 389 (1996). However, the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." See Dizoglio v. Brown, 9 Vet. App. 163 (1996). VA's Office of General Counsel has defined the phrase "engaged in combat with the enemy" to mean that the veteran must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99. The fact that the veteran served in a "combat area" or "combat zone" does not mean that he himself engaged in combat with the enemy. Id. Moreover, a general statement in the veteran's service personnel records that he participated in a particular operation or campaign would not, in itself, establish that he engaged in combat with the enemy because the terms "operation" and "campaign" encompass both combat and non-combat activities. Id. Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized military citations or other supportive evidence. No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each relevant item of evidence. Id. The veteran's assertions that he experienced combat with the enemy are not ignored, but are evaluated along with the other evidence of record. Id. However, the veteran's assertions that he "engaged in combat with the enemy" are not sufficient, by themselves, to establish this fact. The Board finds that the veteran did not engage in combat with the enemy. In the instant case, the veteran's service personnel records indicate that the veteran received the Victory Ribbon, American Area Ribbon, Asiatic Pacific Ribbon, European African Middle Eastern Ribbon and the Philippine Liberation Ribbon. None of these ribbons is indicative of combat. Though the veteran was in a combat zone, he did not participate in combat himself. Therefore, although the evidence shows that he served overseas, the evidence does not support the conclusion that the veteran personally engaged in combat with the enemy, and the provisions of 38 U.S.C.A. § 1154(b) do not apply. There must be credible supporting evidence of record that the alleged stressors actually occurred in order to warrant service connection. His lay testimony is insufficient, standing alone, to establish service connection. See Cohen v. Brown, 10 Vet. App 128, 147 (1997) (citing Moreau, 9 Vet. App. at 395). The Board concedes that the veteran does have a current diagnosis of PTSD. See private treatment records, Melvin Canell, psychologist, November 2004 and August 2005; VA examination report, October 26, 2005. Since the evidence has not established that the veteran was involved in combat, the remaining questions are whether the veteran's stressors can be verified and whether a medical nexus exists. Review of the veteran's service medical and personnel records does not indicate any complaints or treatment for psychiatric disabilities and there was no evidence of performance decline. In fact, the veteran's service discharge examination in June 1946 was silent for any complaints of or treatment for psychiatric disabilities. During the development of the veteran's claim, the RO attempted to verify the veteran's stressors and contacted him several times regarding the specificity of his statements. In responding, the veteran provided duplicate information that he had previously submitted. VA informed him that his stressors statements were not specific enough to request further information from the U.S. Armed Services Center for Unit Records Research (USASCURR), whose name has now changed to U.S. Army and Joint Services Records Research Center (JSRRC), in a memorandum dated in July 2006. This memorandum included a formal finding on the lack of information required to verify stressors in connection with the veteran's PTSD claim. The RO did request additional information from the National Archives and Record Administration (NARA). In the NARA response, it was noted that no Captain's Log existed, as the Liberty ships the veteran served upon in service, were private vessels and these logs were not turned over to the military. Copies were provided of the handwritten Armed Guard Gunnery Officer's Log; the ship movement card and the Naval Armed Guard Report file for the U.S.S. MOSES ROGERS from February 8, 1945 to February 20, 1945. Contrary to the veteran's testimony, the Naval Armed Guard Report reported no contact or action with the enemy during this time period. It was also noted that air raids were performed in February 1945, but these air raids were friendly and provided for training purposes. The veteran did not provide specific enough information to research his other two claimed stressors. In support of his claim, the veteran submitted an unsigned letter from his friend L.E., who also served in World War II and was granted compensation for PTSD. While the Board can certainly empathize with the veteran's frustration in not being awarded service connection for PTSD, it is important to note that the veteran's friend served aboard the U.S.S. LST- 801 when it was involved in the occupation of Okinawa Gunto, whereas the veteran was not. The veteran's service personnel records clearly indicate that the veteran was assigned to the U.S.S. LST-801 from December 8, 1944 to January 5, 1945. The attack at Okinawa Gunto took place between March and June, 1945. As such, the Board cannot presume combat. There is no other corroborating "credible supporting evidence" of the claimed life threatening in-service stressors. Without specific identifying information such as dates, places, and/or names of individuals involved in the alleged stressor events, there is no possible way the events could ever be corroborated. The Board is cognizant of the Court case Pentecost v. Principi, 16 Vet. App. 124 (2002), wherein the Court reversed the Board's denial of a claim for service connection for PTSD on the basis of an unconfirmed in-service stressor. However, in Pentecost, the claimant submitted evidence that his unit was subjected to rocket attacks. The Court pointed out that corroboration of every detail of a stressor under such circumstances, such as the claimant's own personal involvement, is not necessary. See, also, Suozzi v. Brown, 10 Vet. App. 307 (1997). The facts in this case are distinguishable because the appellant has submitted no independent evidence of the occurrence of the claimed in- service stressors. Indeed, as noted above, the RO contacted NARA to obtain additional information, which did not confirm his allegations. Without verification of the veteran's stressors, there is no need to discuss the question of medical nexus. See 38 C.F.R. § 3.304(f) (2007). In summary, the Board has concluded that the preponderance of the evidence is against a finding that the veteran engaged in combat with the enemy while on active duty and, additionally, there is no independent verification of his reported in- service stressors. Therefore, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for PTSD, and it must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. ORDER Entitlement to service connection for skin cancer is denied. Entitlement to service connection for left knee arthritis is denied. Entitlement to service connection for residuals of a right knee injury is denied. Entitlement to service connection for post-traumatic stress disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs