Citation Nr: 0812291 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 06-02 963 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for aortic aneurysm, to include as due to herbicides (Agent Orange) exposure. 2. Entitlement to service connection for anemia. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for other cardiovascular disability, diagnosed as deep vein thrombosis. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from March 1968 to November 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2005 and April 2006 rating decisions. In the September 2005 rating decision, the RO denied service connection for aortic aneurysm. In October 2005, the veteran filed a notice of disagreement (NOD), and the RO issued a statement of the case (SOC) in December 2005 and a supplemental SOC (SSOC) in April 2006. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals), in January 2006. In the April 2006 rating decision, the RO denied service connection for anemia, hypertension, and a cardiovascular disability, to include deep vein thrombosis. In May 2006, the veteran filed a notice of disagreement (NOD), and the RO issued a statement of the case (SOC) in August 2006. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals), in September 2006. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. 2. As the appellant did not serve in Vietnam, or in one of the specified units in South Korea that have been determined to have been exposed to Agent Orange within a specific time frame, he is not entitled to a presumption of exposure to Agent Orange during such service. 3. There is no medical evidence indicating that the veteran has or has had anemia at any time pertinent to the claim for service connection for such condition. 4. While the veteran has brought competent evidence of diagnoses of aortic aneurysm, hypertension, and deep vein thrombosis, there is no medical evidence or opinion that there exists a medical nexus between any of these disabilities and the veteran's military service. CONCLUSIONS OF LAW 1. The criteria for service connection for of aortic aneurysm, to include as due to herbicide (Agent Orange) exposure, are not met. 38 U.S.C.A. §§ 1110, 1116, 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 of anemia, hypertension, or other cardiovascular disability, diagnosed as deep vein thrombosis, are not met. 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). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini,18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, in pre-rating letters issued in June 2005 (which addressed the claim for service connection for aortic aneurysm) and January 2006 (which addressed the claims for service connection for anemia, hypertension, and cardiovascular disorder), the RO provided notice to the claimant regarding what information and evidence was needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the veteran, and what information and evidence would be obtained by VA. These letters also requested that the veteran submit any evidence in his possession that pertained to the claims. The September 2005 and April 2006 rating decisions reflect initial adjudication of the claims after issuance of these letters. Clearly, these letters meet Pelegrini's content of notice requirements, as well as the VCAA's timing of notice requirement. The Board also notes that a March 2006 letter that informed the appellant of how initial disability ratings and/or effective dates are assigned and the type of evidence that impacts those determinations. This letter was sent prior to consideration of the claims for service connection for anemia, hypertension, and a cardiovascular disorder. Therefore, there is no timing issue as to these claims. While the March 2006 letter was sent after initial consideration of the claim for service connection for aortic aneurysm, the Board finds that the timing of this notice was not prejudicial to the appellant. As the Board's decision herein denies each claim for service connection on appeal-to include the claim involving aortic aneurysm, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the appellant under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of reports of the veteran's induction examination and a reserves examination, post-service private medical records, and treatment records from the Nebraska-Western Iowa Health Care System. The Board notes that it was the veteran who submitted the private medical records, which assisted in VA's ability to timely adjudicate the claims on appeal. Also of record and considered in connection with each claim on appeal are written statements provided by the veteran and by his representative, on his behalf. The Board notes that no further development to create any additional evidence for consideration in connection with any of the claims on appeal is required. As explained in more detail below, the claim for service connection for anemia is being denied on the basis of current disability, and the remaining claims are being denied because there is no medical evidence linking any of the claimed disabilities to service. As the current record does not reflect even a prima facie claim for service connection in connection with this appeal, VA is not required to arrange for medical examination(s) and/or to obtain medical opinion(s) in connection with the claims being denied. See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). See also Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium). Specifically as regards the claims involving aortic aneurysm, hypertension, and other cardiovascular disability (to include deep vein thrombosis), the veteran has brought forth competent evidence of current diagnoses of these disabilities; however, there is no evidence that these disabilities "may be associated" with the veteran's active duty. For example, as discussed below, all of the disabilities were first diagnosed decades after the veteran's service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). No medical professional has attributed any of the diagnosed disabilities to the veteran's service. The Board is aware of the low threshold in establishing that a disability "may be associated" with the veteran's service; however, there is no evidence or allegation of any continuity of symptomatology from the time the veteran was discharged from service until the diagnoses of these disabilities. See 38 C.F.R. § 3.303(b). Even the veteran has not alleged that he has had symptoms from any of these disabilities from the time he was discharged from service. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notices of the RO, the claimant has been notified and made aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of the claims on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matters being decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disease first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). If a disease included among certain chronic diseases, to include primary anemia or cardiovascular disease, to include hypertension, becomes manifest to a degree of 10 percent within one year of separation from active service, then the disease it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309. Considering each claim on appeal in light of the above-noted legal authority, the Board finds that the record does not provide a basis for establishing service connection for any of the claimed disabilities. A. Aortic aneurysm The claim for service connection for aortic aneurysm is the only disability the veteran has attributed to exposure to herbicides. Absent affirmative evidence to the contrary, there is now a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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: chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, chronic lymphocytic leukemia (CLL), Type II diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue carcinomas (other than osteosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In a VA Form 21-526, Veteran's Application for Compensation or Pension, the veteran denied having served in Vietnam. Rather, the veteran alleges that he was in Korea in 1968 through 1969 and drank water that was treated from local sources and ate food that was grown in the country. See November 2005 VA outpatient treatment report. He denies being sprayed with herbicides, to include being accidentally sprayed. Id. He asserts he rebuilt tanks, trucks, jeeps, and artillery from Vietnam and believes he was exposed through that. Id. The Board points out that the Department of Defense (DOD) provided to VA an inventory regarding Agent Orange use outside of the Republic of Vietnam. Based on the current DOD findings, the use of herbicides has been acknowledged only for specific units that served in areas along the DMZ in Korea between April 1968 and July 1969. Both the 2nd and 7th Infantry Divisions, United States Army, had units in the affected area at the time Agent Orange was being used. Within the 7th Infantry Division, the units included the 1- 17th Infantry, 2-17th Infantry, 1-73rd Armor, and 2-10th Cavalry. Field artillery, signal, and engineer troops also were supplied as support personnel during the time of the confirmed use of Agent Orange. The estimated number of exposed personnel is 12,056. See March 2003 fact sheet distributed by the Veterans Benefits Administration (VBA), which was posted in September 2003. The evidence of record does not provide specific dates as to when the veteran served in Korea. His DD Form 214 shows he had one year and seven days of foreign service in the "USARPAC" and he received the "A[rmed ]F[orces ]E[xpeditionary ]M[edal] (KOREA)." He was assigned to the Eighth Army, Company B. As discussed above, the DOD has only confirmed that specific units of the 2nd and 7th Infantry Divisions, and supporting field artillery, signal, and engineer troops were exposed to Agent Orange from April 1968 to July 1969; however, the record does not reflect any evidence that the appellant was assigned to one of these specified units. As a result, the veteran is not entitled to a presumption of exposure to herbicide agents, to include Agent Orange. In any event, the Board points out that, even if the veteran has actual or presumed Agent Orange exposure, the record still would not support a grant of presumptive service connection on this basis. Although the veteran has a current diagnosis of aortic aneurysm, such disease is not among the disabilities recognized by VA (and listed in section 3.309(e)) as etiologically related to herbicide exposure. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2007); 38 C.F.R. § 3.309(e). Moreover, while the presumptions are not intended to preclude a veteran from establishing service connection on any other basis (see, e.g., Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) and Brock v. Brown, 10 Vet. App. 155, 162-64 (1997)), here, the record presents no other basis for a grant of service connection for aortic aneurysm. For example, such disability was not shown in service. The first objective evidence of the diagnosis was shown in 2000, with a notation that it was found two years prior, which would establish the disability of 1998, which is almost 30 years after discharge from service, and is evidence against the claim. See Maxson, supra. Furthermore, there is no competent evidence or opinion to even suggest a medical relationship between the diagnosis of aortic aneurysm and service. While the veteran has alleged that there is a relationship to the diagnosis of aortic aneurysm and his service, neither he nor his representative (in argument advanced on the veteran's behalf) is shown to possess the requisite knowledge of medical principles that would permit him to render a persuasive opinion regarding matters involving medical diagnoses or medical etiology. See Bostain v. West , 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge In reaching the decision to deny the claim for service connection for aortic aneurysm, the Board also has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Anemia The veteran asserts that service connection is warranted for anemia. He has not stated specifically why he believes he currently has anemia that is related to service. There is no separation examination report or any other evidence to show anemia in service. A report of medical history completed by the veteran in March 1974 does not show any report of treatment for anemia. An August 1987 private medical record shows a diagnosis of hemolytic anemia without any evidence of the cause of such diagnosis The more recent medical records show findings only of a "history of" anemia. Thus, while the record reflects that the veteran was diagnosed with hemolytic anemia in 1987, there is no competent evidence that he has suffered from anemia since 1987 or, significantly, at any time pertinent to the claim for service connection that is the subject of the appeal. [While the Board notes, parenthetically, that there also is no medical nexus between the anemia shown in 1987 and service-a fact that goes towards the question of whether medical examination or opinion in connection with this claim is required-given the absence of competent evidence of the currently claimed disability, there is no basis for consideration of whether any current anemia is medically related to service.]. As no current diagnosis of anemia has been shown since the veteran filed his claim for service connection in January 2006, the claim must be denied for lack of any current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (citing 38 U.S.C.A. § 1110 and holding that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held "[i]n the absence of proof of a present disability[,] there can be no valid claim"). See also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Although the veteran has asserted that he has anemia that is attributable to service, for reasons expressed above, neither he nor his representative (in any argument advanced on the veteran's behalf) is competent to provide a probative opinion on a medical question of diagnosis or etiology. See Bostain, 11 Vet. App. 127; Routen, 10 Vet. App. at 186. In reaching the decision to deny the claim for service connection for anemia, the Board also has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. C. Hypertension The veteran asserts that service connection is warranted for hypertension. He has not stated specifically why he believes hypertension is related to service. There is no separation examination report or any other evidence to show hypertension in service. At the time of the veteran's induction examination in May 1967, his blood pressure was 132/90 (systolic/diastolic), which is elevated. A November 1973 report of medical examination shows that his blood pressure was 136/80. It shows that after exercise, his blood pressure was 160/94. In a March 1974 report of medical history completed by the veteran, he denied a history of past or current treatment for high blood pressure. The first showing of a diagnosis of hypertension following service is in January 2005, 36 years after his discharge from service; this fact weighs against the claim. See Maxson, supra. While the veteran had some elevated blood pressure readings in 1973 and 1974, there is no competent evidence that hypertension was manifested to a compensable degree within one year following discharge from service. Furthermore, there is no competent evidence or opinion to even suggest a medical relationship between the diagnosis of hypertension and service. Although the veteran has asserted that he has anemia that is attributable to service, for reasons expressed above, neither he nor his representative (in any argument advanced on the veteran's behalf) is competent to provide a probative opinion on a medical question of diagnosis or etiology. See Bostain, 11 Vet. App. 127; Routen, 10 Vet. App. at 186. While the veteran has asserted that his hypertension is attributable to service, for reasons expressed above, neither he nor his representative (in any argument advanced on the veteran's behalf) is competent to provide a probative opinion on a medical question of diagnosis or etiology. See Bostain, 11 Vet. App. 127; Routen, 10 Vet. App. at 186. In reaching the decision to deny the claim for service connection for hypertension, the Board also has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. D. Other cardiovascular disability, diagnosed as deep vein thrombosis The veteran asserts that the diagnosis of deep vein thrombosis is related to service. He has not stated specifically why he believes deep vein thrombosis is related to service. There is no separation examination report from the veteran's service. A November 1973 report of medical examination shows that clinical evaluation of the vascular system was normal. In a report of medical history completed by the veteran in March 1974 does not show any past or current treatment for deep vein thrombosis. The private medical records submitted by the veteran show that the veteran was diagnosed with deep vein thrombosis in 1998 and placed on Coumadin. Thus, deep vein thrombosis was first shown almost 30 years after discharge from service, a fact that weighs against the claim. See Maxson, supra. Furthermore, there is no competent evidence or opinion to even suggest a medical relationship between the diagnosis of deep vein thrombosis and service. While the veteran has asserted that his deep vein thrombosis is attributable to service, for reasons expressed above, neither he nor his representative (in any argument advanced on the veteran's behalf) is competent to provide a probative opinion on a medical question of diagnosis or etiology. See Bostain, 11 Vet. App. 127; Routen, 10 Vet. App. at 186. In reaching the decision to deny the claim for service connection other cardiovascular disbility, diagnosed as deep vein thrombosis, the Board also has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for aortic aneurysm, to include as due to herbicide (Agent Orange)exposure, is denied. Service connection for anemia is denied. Service connection for hypertension is denied. Service connection for cardiovascular disability, diagnosed as deep vein thrombosis, is denied. ________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs