Citation Nr: 0813191 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-32 418A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for post-traumatic stress disorder (PTSD). Entitlement to service connection for chloracne. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and J.R. ATTORNEY FOR THE BOARD Mark Vichich, Associate Counsel INTRODUCTION The veteran served on active duty from March 1964 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in January 2008; a transcript is of record. In January 2008, the veteran submitted additional evidence to the Board. This evidence did not pertain to the issue decided herein. As such, the Board will proceed with the adjudication of this claim notwithstanding that the veteran has not waived his right to initial RO consideration of this evidence. 38 C.F.R. § 20.1304(c) (2007). The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no credible evidence that chloracne became manifest to a degree of 10 percent or more within one year of the veteran's last day of service in the Republic of Vietnam. CONCLUSION OF LAW Chloracne was not incurred in or aggravated by service and is not presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (hereinafter the Court) has held that these notice requirements apply to all five elements of a service connection claim, which 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(a)-(c) (2007). VCAA notice must 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, 120 (2004) (Pelegrini II). Here, prior to initial adjudication of the veteran's claim, in correspondence dated in July 2004, the RO advised the veteran of what the evidence must show to establish entitlement to service-connected compensation benefits. The RO advised the veteran on what the evidence needed to show to establish entitlement to chloracne on a presumptive basis. The RO advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claim, including which portion of the information and evidence necessary to substantiate the claim was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. The RO also specifically requested that the veteran send any evidence in his possession that pertained to the claim. In correspondence dated in July 2006, the RO informed the veteran that when service connection is granted, a disability rating and effective date of the award is assigned. The RO also explained how the disability rating and effective date are determined. The Board finds that in issuing this letter, the RO has satisfied the requirements of Dingess/Hartman. Although this notice was not provided until after the initial adjudication of the claim, the RO subsequently readjudicated the claim and issued a supplemental statement of the case in July 2007. The issuance of such notice followed by a readjudication of the claim remedied any timing defect with respect to issuance of compliant notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). Finally, the Board finds that the RO has satisfied VA's duty to assist. The RO has obtained the veteran's service medical records and VA Medical Center (VAMC) treatment records. The RO also obtained private medical records from Dr. S.B. and Dr. A.R. on the veteran's behalf. The RO also attempted to obtain records from Dr. G.D. and Dr. J.L. The RO received responses that these doctors had either retired or had passed away. The veteran also identified a Dr. A.J. at his hearing, but acknowledged that she had passed away as well. The Board finds that these records are no longer available and that VA has no further duty to assist the veteran in obtaining them. The Board's duty to assist also requires providing a medical examination or obtaining a medical opinion, but only in certain circumstances. See 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007), see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The duty to provide a medical examination or obtain a medical opinion arises only if, among other things, the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but establishes that the veteran suffered an event, injury, or disease in service or that certain diseases manifested during an applicable presumptive period. Id. Whether certain diseases listed in regulatory provisions manifested during an applicable presumptive period is a factual determination the Board must make. McLendon, 20 Vet. App. at 82. Here, the veteran was not provided with a VA examination for chloracne, but the Board finds that no such examination was required. For reasons explained more fully below, the competent medical evidence already establishes that the veteran has chloracne. The pertinent question before the Board is whether there is any credible evidence that chloracne became manifest to a degree of 10 percent or more within the applicable presumptive period. A medical opinion is not necessary to make this factual determination. Thus, VA had no duty to provide a medical examination for either of the claimed conditions and the failure to do so is not a breach of its duty to assist. Accordingly, the Board will proceed with appellate review. Legal Criteria Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in active military service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Service connection may also 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). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). 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. 38 U.S.C.A. § 1116(a)(3) (West 2002 & Supp. 2007), 38 C.F.R. § 3.307(a)(6)(iii) (2007). 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 that period. Id. Service connection for chloracne may be presumed based on exposure to certain herbicide agents. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.307, 3.309 (2007). If the veteran was exposed to an herbicide agent during active military, naval, or air service, chloracne shall be service-connected if chloracne becomes manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed even though there is no record of such disease during service. 38 C.F.R. § 3.307(a)(6), 3.309(e) (2007). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6) (2007). When an approximate balance of positive and negative evidence regarding the merits of a claim exists, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b) (West 2002). Analysis The veteran has contended that he has rashes (chloracne) as a result of exposure to herbicides while serving in Vietnam. At the veteran's Travel Board hearing, he testified that he saw a doctor for the skin rash two months after leaving service and that the doctor treated him for this condition until 1994. The veteran stated that the doctor had passed away and that he was unable to obtain those records. The veteran also testified that he did not recall having a physical examination at the time of his discharge. The veteran also testified that a physician at the Daytona Beach VAMC had told him his chloracne was related to exposure to herbicides. The veteran's personnel records confirm his presence in Vietnam during the applicable presumptive period. Specifically, personnel records placed him in the Republic of Vietnam between October 1965 and February 1966. Thus, the veteran is presumed to have been exposed to herbicides. 38 U.S.C.A. § 1116(a)(3) (West 2002 & Supp. 2007), 38 C.F.R. § 3.307(a)(6)(iii) (2007). The competent medical evidence also confirms that the veteran has a current diagnosis of chloracne. (See Agent Orange Protocol Examination report, dated in April 2004). Despite that the veteran is an herbicide exposed veteran and has a diagnosis of chloracne, the Board finds there is no credible evidence that chloracne became manifest to a degree of 10 percent or more within a year of the veteran's last day of service in the Republic of Vietnam. The veteran's service medical records did include a separation examination report, dated in February 1966. In a report of medical history prepared at that time, the veteran checked "no" when asked whether he had skin diseases now or in the past. The report of the actual physical examination was negative for any skin abnormalities. Progress notes in the veteran's service medical records were also negative for complaints, treatment, or diagnoses of a skin rash. The medical evidence also included a letter from Dr. S.B., dated in July 2005, reflecting treatment for various skin diseases. Specifically, Dr. S.B. stated that he treated the veteran with topical steroids including Cyclocort cream and Lidex ointment for eczematous patches of the arms and legs in September 1991, January 1995, and December 2003. This letter provides no support for the veteran's claim because it does not pertain to treatment for chloracne. The earliest diagnosis of chloracne is found in an Agent Orange Protocol Examination report from the Daytona VAMC, dated in April 2004. This is nearly three decades after the last day the veteran served in the Republic of Vietnam. Moreover, contrary to the veteran's testimony, the examiner, who appears to be the same examiner that he identified at his hearing, only diagnosed the veteran as having chloracne. He had made no comment as to the onset or etiology of the condition. He also indicated that the rash was in remission. With respect to the veteran's contentions that he has suffered from chloracne since service discharge, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Unlike varicose veins under Barr, a dislocated shoulder under Jandreau, a disorder that was indicated in the medical record to exist years after service, or a finding that one disorder is related to another disorder, is not a condition capable of lay diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In any event, the Board finds that the veteran's lay statements our outweighed by the negative service medical records and post-service treatment records (indicating a diagnosis of chloracne was not made until several decades post-service). The Board finds it to be particularly significant the veteran first filed a claim for service connection for chloracne in July 2004, nearly three decades after leaving service. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Indeed, there is no competent evidence of treatment for any type of skin disorder until 1991, which is still over two decades after the veteran's service discharge. Moreover, assuming arguendo that he suffered a skin disorder shortly after discharge, the veteran lacks the competence to diagnosis his skin condition. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The absence of a diagnosis in service medical records and separation examination report, and that the first record of a diagnosis of chloracne was nearly three decades after the veteran's discharge, weighs against the veteran's claim of having been treated for chloracne shortly after service. ORDER Service connection for chloracne is denied. REMAND In a written statement dated in July 2005, the veteran reported several PTSD stressors that allegedly occurred during his active duty while serving in Vietnam. At the veteran's Travel Board hearing in January 2008, he provided additional information about one of these incidents. Specifically, the veteran recalled a time when he was in the jungle approximately 100 miles north of Saigon when his unit and he came under enemy and friendly fire. The veteran recalled that the incident happened sometime in either December 1965 or January 1966, most likely after Christmas. The veteran claimed, and his personnel records confirmed, that he was assigned to the 1st Infantry, 6th Artillery, D Battery, 8th Battalion, at that time. The Board finds that VA has a duty to further assist the veteran in verifying the occurrence of the claimed in-service stressors. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). Unit records showing attacks on a veteran's unit are "credible supporting evidence" that the veteran experienced the attacks personally. Pentecost v. Principi, 16 Vet. App. 124, 128-129 (2002). With the additional information provided by the veteran, the Board finds that the history of the veteran's unit for the period of December 1966 and January 1967 should be researched for the purpose of verifying whether the unit sustained attacks. In January 2008, the Board received additional evidence from the veteran in support of his PTSD claim consisting of newspaper articles and photographs. This evidence was not considered by the RO. Regulations provide that when the Board receives pertinent evidence not reviewed by the agency of original jurisdiction (AOJ) that it must remand that evidence to the AOJ unless that procedural right has been waived. 38 C.F.R. §§ 19.9, 20.1304(c) (2007). The veteran has not waived this procedural right and on remand, the RO/AMC should consider this evidence in the first instance. (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. Advise the veteran to submit a more specific and detailed statement, if possible, describing his alleged stressor. He should be informed that specific dates, locations, circumstances and names of those involved in the reported incident would prove helpful in attempting to verify his stressor. 2. After providing the veteran with the opportunity to provide additional stressor information, and regardless of whether he responds, request that the U.S. Army and Joint Service Records Research Center (JSRRC) review history of the veteran's unit for the period of December 1966 and January 1967 for the purpose of verifying whether the veteran's unit was subject to attacks from either friendly or enemy fire. 3. Following the above, the RO must make a specific determination as to whether that claimed stressor is sufficiently verified, based on a review of the entire evidentiary record. All credibility issues related to this matter should be addressed at that time. 4. If, and only if, a stressor has been verified, schedule the veteran for a complete and thorough VA examination by a psychiatrist. In conjunction with examination, the psychiatrist should be given a copy of this remand and the veteran's claims folder for review. The diagnosis should be in accordance with the American Psychiatric Association's: Diagnostic and Statistical Manual of Mental Disorders- IV. All necessary special studies or tests, including appropriate psychological testing and evaluation, is to be accomplished. The examination report should reflect review of pertinent material in the claims folder. The psychiatrist should integrate the previous psychiatric findings and diagnoses with current findings to obtain a true picture of the veteran's psychiatric status. The psychiatrist must express an opinion as to whether the veteran meets the criteria for PTSD contained in DSM- IV, and if he meets such criteria, whether PTSD can be related to the stressor or stressors reported by the veteran and established as having occurred during the veteran's active service. The psychiatrist must provide a comprehensive report including complete rationales for all conclusions reached. 5. Thereafter, the veteran's claim of entitlement to service connection for PTSD should be readjudicated. If any benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs