Citation Nr: 0812101 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-06 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a cardiovascular disability. 2. Entitlement to service connection for benign prostatic hypertrophy ( BPH). 3. Entitlement to serviced connection for bronchial asthma. 4. Entitlement to service connection for vertigo. 5. Entitlement to service connection for polyarthritis ATTORNEY FOR THE BOARD C. M. Powell, Associate Counsel INTRODUCTION The veteran had active service from January 1946 to September 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Manila, Philippines Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for arthritis of multiple joints, a cardiovascular disability, BPH, and bronchial asthma. It also comes on appeal from an August 2005 decision of the same RO that denied service connection for vertigo. As a preliminary matter, the Board notes that, in August 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), appeal docketed No. 07-7037 (Fed. Cir. Nov. 8, 2006), that reversed a decision of the Board that denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagrees with the Court's decision in Haas and appealed this decision to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. In this appeal, the veteran asserts that he was exposed to Agent Orange while serving on the U.S.S. Independence and that he set foot in Vietnam while serving as a special policeman. However, while the veteran served during the Vietnam Era, the record does not reflect that the veteran served in Vietnam or received any Vietnam related medals. Moreover, the National Personnel Records Center (NPRC), after researching the matter, indicated that there was no indication in the record that the veteran served aboard the U.S.S. Independence or that he served in the Republic of Vietnam. As there is no indication that the veteran either had service or visitation in Vietnam, the veteran's claims for service connection are not potentially affected by the holding in Haas and is therefore not stayed. FINDINGS OF FACT 1. The record does not reflect that the veteran has been awarded any military decoration indicative of service in Vietnam, and does not contain objective evidence that the veteran had in-country service, service on a vessel off the shore of Vietnam, or visitation in the Republic of Vietnam during the Vietnam Era. 2. A cardiovascular disability was initially demonstrated years after service, and has not been shown by competent evidence to be causally related to the veteran's active service. 3. Benign prostatic hypertrophy was initially demonstrated years after service, and has not been shown by competent evidence to be causally related to the veteran's active service. 4. Bronchial asthma was initially demonstrated years after service, and has not been shown by competent evidence to be causally related to the veteran's active service. 5. Vertigo was initially demonstrated years after service, and has not been shown by competent evidence to be causally related to the veteran's active service. 6. Polyarthritis was initially demonstrated years after service, and has not been shown by competent evidence to be causally related to the veteran's active service. CONCLUSIONS OF LAW 1. A cardiovascular disability was not incurred in, or aggravated by active service, nor may such be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 2. Benign prostatic hypertrophy was not incurred in, or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 3. Bronchial asthma was not incurred in, or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 4. Vertigo was not incurred in, or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 5. Polyarthritis was not incurred in, or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA satisfied its duty to notify by means of a January 2005 letter from the agency of original jurisdiction (AOJ) to the appellant that informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence, as well as requested that he submit any additional evidence in his possession pertaining to the claims. The Board observes that the aforementioned letter did not provide the veteran with notice of the type of evidence necessary to establish a disability rating or effective date in the event of award of any benefit sought. However, despite the inadequate notice provided to the veteran on these latter two elements, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the veteran's claims for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. With regard to the duty to assist, the claims file contains the veteran's service medical records and private treatment reports. Additionally, the claims file contains the veteran's statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. The Board notes that to date, the RO has not afforded the veteran a VA examination specifically to obtain an opinion as to the etiology of the veteran's disabilities. Such an opinion is "necessary" under 38 U.S.C.A. § 5103A(d)(West 2002) when: (1) there is competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period, (3) there is an indication the current disability or symptoms may be associated with service, and (4) there is not sufficient medical evidence to make a decision. See 38 U.S.C.A. § 5103A(c)(4) (West 2002). In this case, however, there is no evidence of any event, injury or disease during the veteran's service relevant to any disability at issue. As such, there is no reasonable possibility that a VA examination would result in findings favorable to the veteran. Accordingly, the Board finds that an etiology opinion is not "necessary." See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). Present disability resulting from disease or injury in service is required to establish entitlement to service connection. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). To establish service connection for a disability, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Regulations also provide that 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) (2007). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis or a cardiovascular disability becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a)(2007). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(a)(3)(West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2007). The presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition other than those for which the Secretary has specifically determined that a presumption of service connection is warranted. See National Academy of Sciences report, "Veterans and Agent Orange: Update 1996," dated March 14, 1996. The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). See 38 C.F.R. § 3.309(e). The foregoing diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The Secretary of Veterans Affairs 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 Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions: Hepatobiliary cancers, nasopharyngeal cancer, bone and joint cancer, breast cancer, cancers of the female reproductive system, urinary bladder cancer, renal cancer, testicular cancer, leukemia (other than CLL), abnormal sperm parameters and infertility, Parkinson's disease and parkinsonism, amyotrophic lateral sclerosis (ALS), chronic persistent peripheral neuropathy, lipid and lipoprotein disorders, gastrointestinal and digestive disease, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, cognitive and neuropsychiatric effects, gastrointestinal tract tumors, brain tumors, light chain-associated (AL) amyloidosis, endometriosis, adverse effects on thyroid homeostasis, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). In order to establish service connection by presumption, based on herbicide exposure, a disease listed above (see 38 C.F.R. § 3.309(e)) 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 and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii). Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). Legal Analysis The veteran asserts that service connection is warranted for vertigo, bronchial asthma, BPH, a cardiovascular disability, and polyarthritis. In this regard, in order to establish service connection on a nonpresumptive direct incurrence basis for vertigo, bronchial asthma, BPH, a cardiovascular disability, and polyarthritis, the veteran must provide evidence of a current disability, an in-service injury or disease, and a nexus between the current disability and in- service injury or disease. In this case, although, the record reflects that the veteran has been diagnosed with vertigo, bronchial asthma, BPH, polyarthritis, and a cardiovascular disability (including ischemic heart disease and congestive heart failure), his service medical records do not reflect that he ever complained of, or was treated for any such disability while in service. Moreover, there is no competent clinical opinion of record that etiologically relates the veteran's current vertigo, bronchial asthma, BPH, polyarthritis, or cardiovascular disability to any incident of service. The Board also notes that the initial documentation by the record of any such conditions in 1999 is too remote from service to be reasonably related to the veteran's military service. Such a lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board concludes that the preponderance of the evidence is against a grant of service connection on a nonpresumptive direct incurrence basis for the veteran's cardiovascular disability, vertigo, bronchial asthma, BPH, and polyarthritis. In order to establish service connection on a presumptive basis, the veteran's cardiovascular disability and/or arthritis must have become manifest to a degree of 10 percent or more within one year from the date of termination of his period of service. In this case, there is no evidence that the veteran's cardiovascular disability or arthritis manifested to a compensable degree within one year of his separation from service. In fact, the record reflects that the first documented diagnosis of arthritis and a cardiovascular disability was in 1999, which was many years after the veteran's 1965 separation from service. Hence, the Board finds that evidence of record does not establish that the veteran is entitled to service connection on a presumptive basis for his current cardiovascular disability and arthritis. The Board also acknowledges the veteran's contentions that his vertigo, bronchial asthma, BPH, polyarthritis, and cardiovascular disability are related to Agent Orange exposure in Vietnam. According to the veteran he served in Vietnam, both on land and offshore. In a January 2005 statement, he specifically indicated that he served aboard the USS Independence from 1963 to 1965 and that his duties included his being assigned inland as a Special Police who patrolled in the war zone area. However, the Board, after a careful review of the record concludes that the evidence of record does not demonstrate that the veteran had in-country service, service aboard a vessel off the shore of Vietnam, or visitation in the Republic of Vietnam. Indeed, in July 2002, the National Personnel Records Center upon a request from the RO to research the veteran's contentions that he was served in Vietnam, found that there was no indication of record that the veteran served aboard the USS Independence or served in the Republic of Vietnam. Likewise, in April 2005, the NPRC, in response to another research request, found that there was no evidence in the veteran's file to substantiate any service in the Republic of Vietnam. Thus, in the absence of any evidence to the contrary, the Board concludes that the evidence of record does not establish that the veteran had in-country duty, service on board a ship off the shore of Vietnam, or visitation in the Republic of Vietnam. Moreover, even if it had been found that the veteran had served in Vietnam, vertigo, bronchial asthma, BPH, polyarthritis, and cardiovascular disabilities are not among the disabilities that have been positively associated with Agent Orange exposure. See 38 C.F.R. §§ 3.307, 3.309 (2007). Therefore, the veteran is not entitled to a grant of service connection on a presumptive basis for his vertigo, bronchial asthma, BPH, polyarthritis, and cardiovascular disability. In conclusion, although, the veteran asserts that his cardiovascular disability, vertigo, bronchial asthma, BPH, and polyarthritis are due to service, including Agent Orange exposure in Vietnam, he is not competent to provide an opinion requiring medical knowledge, such as medical etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The negative evidence of record is of greater probative value than the veteran's statements in support of his claims. Accordingly, the Board finds that the competent medical of record fails to establish that the veteran's cardiovascular disability, vertigo, bronchial asthma, BPH, or polyarthritis are related to his active military service. The Board has considered the doctrine of giving the benefit of the doubt to the veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2007), but does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claims for service connection for a cardiovascular disability, vertigo, bronchial asthma, BPH, and polyarthritis, to include as secondary to Agent Orange exposure. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a cardiovascular disability is denied. Entitlement to service connection for benign prostatic hypertrophy is denied. Entitlement to serviced connection for bronchial asthma is denied. Entitlement to service connection for vertigo is denied. Entitlement to service connection for polyarthritis is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs