Citation Nr: 0811913 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-11 189A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for prostate cancer and urinary bladder cancer, to include as secondary to herbicide exposure. 2. Entitlement to service connection for skin lesion on the left leg, to include as secondary to herbicide exposure. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The veteran had active service from March 1955 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2004 and December 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The veteran testified at a Board hearing in January 2008. At the hearing, the veteran withdrew his appeal of the claims for increased disability ratings for a left and right shoulder disability. 38 C.F.R. § 20.204 (2007). Hence, those issues are no longer in appellate status. FINDINGS OF FACT 1. There is no competent evidence that relates prostate cancer or urinary bladder cancer to service or any incident of service, including exposure to herbicides in service. 2. There is no competent evidence that relates a skin lesion on the left leg to service or any incident of service, including exposure to herbicides in service. 3. The competent and probative medical evidence of record establishes that the veteran does not have PTSD. CONCLUSIONS OF LAW 1. Service connection for prostate cancer and urinary bladder cancer, to include as secondary to exposure to herbicides in service, is not established. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. Service connection for skin lesion on the left leg, to include as secondary to exposure to herbicides in service, is not established. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 3. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his/her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters dated in June 2003, May and June 2004, and June and August 2005, VA notified the veteran of the information and evidence needed for his service connection claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also generally advised the veteran to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided by a March 2006 letter to the veteran. With respect to the timing of VCAA notice, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case some of the notice was provided prior to the appealed June 2004 and December 2005 rating decisions in keeping with Pelegrini; other notice was provided subsequent to those determinations. The claims were then reajudicated in an October 2007 supplemental statements of the case. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Next, VCAA requires VA to assist the claimant in obtaining evidence necessary to substantiate a claim, 38 C.F.R. § 3.159(c), which includes providing a medical examination when such is necessary to make a decision on the claim. In this case, the veteran has been afforded VA examinations in conjunction with his claims for service connection. The veteran's service medical records, VA and private medical treatment records have been associated with the claims file. There is no indication that other Federal department or agency records exist that should be requested. VA has fulfilled the duty to notify and assist to the extent possible; the Board finds that it can consider the merits of this appeal without prejudice to the appellant. Adjudication of the claim may proceed, consistent with the VCAA. The record demonstrates that remand for further action in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 541 (1991). Based on the foregoing, VA satisfied its duties to the veteran. Service Connection - General Criteria In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may 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). Where a veteran served for 90 days in active service, and malignant tumors develop to a degree of 10 percent or more within one year from the date of separation from service, such disease may be service connected even though there is no evidence of such disease in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Herbicide Exposure Claims A veteran who had active service in the Republic of Vietnam at any time from January 9, 1962, to May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). When such a veteran develops a disorder listed in 38 C.F.R. § 3.309(e), which disorders have been shown to be caused by exposure to Agent Orange, to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Diseases to which the presumption applies are chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult- onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, 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) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The above-listed diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease 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 after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii). The veteran is seeking service connection for prostate and urinary bladder cancer and skin lesion of the left leg which he alleged is due to exposure to herbicides (Agent Orange) in service. As to his claim based on exposure to herbicides, the veteran's DD Form 214 indicates that he served in Vietnam. Exposure to herbicides is conceded. The veteran's service medical records do not show any findings, treatment or diagnoses of a prostate or bladder disorder. The records show that the veteran received treatment in 1963 for probable contact dermatitis and in 1964 for severe dyshidrosis of the hands and feet. The veteran's skin was found to be normal on separation examination. Post-service medical treatment records show that the veteran underwent surgery for benign prostatic hypertrophy and was found to have a bladder tumor which was resected. On VA examination in July 2004, the examiner stated that medical treatment records confirm that the veteran had benign prostatic hypertrophy and not prostate cancer. The examiner noted that during the surgery for prostate enlargement, a primary bladder cancer was found and removed. The examiner further noted that this was unrelated to the veteran's prostate. On VA examination in September 2006, the examiner concluded that the relationship of the transitional cell carcinoma of the bladder in relationship to herbicides could not be resolved without resort to mere speculation. The veteran underwent a VA skin examination in September 2006. He claimed he has about 3-4 flares of a rash on the back of his left thigh per year since the 1960's which the veteran felt was herpes. Examination of the skin revealed two nickel sized areas of erythema on the upper left buttock. The examiner was unable to confirm a diagnosis of herpes as no physical findings were present to establish such a diagnosis. The examiner concluded that there was no physical finding of herpes and if he did have herpes, it certainly would not have been caused by herbicide exposure in service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Because the record lacks evidence that the veteran currently suffers from prostate cancer, a crucial element of service connection is absent. Service connection for prostate cancer is not warranted. Although the veteran has been diagnosed with urinary bladder cancer, the Board finds that he is not entitled to service connection on a presumptive basis because urinary bladder cancer is not a disease associated with herbicide exposure under 38 C.F.R. §§ 3.307, 3.309. Additionally, the veteran's service medical records are negative for relevant complaints, symptoms, findings or diagnoses of a bladder disorder. Therefore, there is no indication that the veteran's bladder cancer was incurred in or aggravated by service. There are no medical opinions linking the veteran's bladder cancer to service. Service connection for bladder cancer on a direct basis is not warranted. The evidence of record provides that the onset of the veteran's bladder cancer was several years after service. Therefore, the veteran is not entitled to the presumption that urinary bladder cancer incurred in service because it did not manifest within one year from the veteran's separation from service. With regard to the veteran's skin lesion claim, the veteran has not been diagnosed with a skin disease listed under 38 C.F.R. § 3.309(e), for which service connection, on a presumptive basis, due to herbicide exposure, is available. The record also presents no basis for a grant of service connection for a skin disorder on a direct basis. Although the veteran was seen in service for a skin related complaints, there is no indication that the veteran has a chronic skin condition. No medical professional has provided competent medical evidence linking any skin condition to any aspect of his active service, to include his presumed exposure to herbicides in service The only evidence supporting the veteran's claims of service connection for prostate and bladder cancer and skin lesion are his written statements and hearing testimony. However, as a layperson without the appropriate medical training and expertise, the veteran simply is not competent to render a probative opinion on a medical matter, to include a diagnosis. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, after consideration of all the evidence, the Board concludes that the claims for service connection for prostate cancer and urinary bladder cancer and for skin lesion on the left leg, to include as secondary to herbicide exposure must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this appeal. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to the 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 a claimed inservice stressor. 38 C.F.R. § 3.304(f) (2007). The veteran reported stressors of seeing body bags and coffins, of nightly fire fights and incoming fire and of being shot at while landing during the Vietnam War. A review of the service medical records reveals no findings, treatment, or diagnoses of PTSD. Post-service VA medical treatment records show that the veteran is diagnosed as having PTSD. The veteran underwent VA examination in July 2006 and was diagnosed as having generalized anxiety disorder, dysthymic disorder, NOS, and obsessive-compulsive disorder. The examiner felt that the veteran's symptoms did not meet the criteria for PTSD. The examiner stated that instead it was more likely that the veteran had symptoms of anxiety all of his life from the time he was very young, which were exacerbated by his experiences in Vietnam and other places but not to the level of traumatic experience. Although the veteran alleges that he experienced various traumatic events in service, the most probative medical of record suggests that, even if he did, the veteran does not currently have PTSD as a result. In this regard, the Board notes the opinion of the VA psychologist, who reviewed the veteran's claims folder and provided a thorough evaluation. The examiner felt that the veteran's symptoms did not meet the criteria for PTSD. The Board acknowledges that diagnoses of PTSD are noted in the VA treatment records in the claims file. However, these diagnoses are based on the veteran's own self-report of his history without any review of the claims file, including his service medical records. Thus, the Board places much more probative weight on the recent review of his claims file by a VA clinical psychologist who concluded that the veteran does not have PTSD due to military service. Accordingly, the Board concludes that the preponderance of the evidence is against finding that the veteran has PTSD related to service. ORDER Service connection for prostate cancer and urinary bladder cancer, to include as secondary to herbicide exposure, is denied. Service connection for skin lesion on the left leg, to include as secondary to herbicide exposure, is denied. Service connection for PTSD is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs