Citation Nr: 0813688 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-06 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased (compensable) rating for malaria. 2. Entitlement to service connection for chronic prostatitis, claimed as secondary to Agent Orange exposure. 3. Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from April 1968 to April 1970, including service in the Republic of Vietnam. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that subsequent to the November 2004 Statement of the Case (SOC) additional medical evidence was received. VA regulations provide that any pertinent evidence submitted by the veteran without waiver of RO consideration must be referred to the RO for review and preparation of a Supplemental Statement of the Case (SSOC). See 38 C.F.R. § 20.1304 (2007). However, upon review of the evidence, the Board finds that it contains minimal information regarding the issues that are being addressed in this decision - entitlement to an increased rating for malaria and entitlement to service connection for chronic prostatitis. Regarding these issues, the Board notes that the evidence contains only a single reference of import - a subjective complaint of chronic prostatitis in December 2005. As such evidence is essentially duplicative of that of record at the time of the November 2004 SOC it is accordingly not pertinent to the issues on appeal. Therefore, the provisions of 38 C.F.R. § 20.1304 are inapplicable and these issues need not be returned to the RO. 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. FINDINGS OF FACT 1. Throughout the appeal period, the veteran's malaria has been inactive and without residuals such as anemia, liver, spleen, or cerebral damage. 2. The medical evidence of record does not show the veteran has chronic prostatitis. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for malaria have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.88b, Diagnostic Code (DC) 6304 (2007). 2. Chronic prostatitis was not incurred in or due to active service, and may not be so presumed. 38 U.S.C.A. § 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini II that VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119-20 (2004). See, too, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the veteran was provided notice of the VCAA in September 2003, prior to the initial adjudication of his claims in the December 2003 rating decision at issue. The VCAA letter summarized the evidence needed to substantiate the claims and VA's duty to assist. It also specified the evidence the veteran was expected to provide, including the information needed to obtain both his private and VA medical treatment records. In this way, the VCAA letter clearly satisfies the first three "elements" of the notice requirement. In addition, the September 2003 letter informed the veteran: "It's your responsibility to make sure that we receive all requested records that aren't in the possession of Federal department or agency." (Emphasis in original). This satisfies the regulation, in that it informed the veteran that he could submit any and all evidence which was pertinent to his claims, not merely that requested by the RO. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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. Id. at 486. Additionally, this notice must include mention that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In the present appeal, the veteran was provided notice of what type of information and evidence was needed to substantiate his service connection and increased rating claims, but he was not provided notice of the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal. Despite the inadequate notice provided him on these elements, the Board finds no prejudice to him 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, i.e., the RO, the Board must consider whether the veteran has been prejudiced thereby). Concerning this, since the Board will conclude below that the preponderance of the evidence is against the veteran's service connection and increased rating claims, any question about the appropriate disability rating and effective date to be assigned is rendered moot. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that: (1) VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In the case currently before the Board, the VCAA notice informed the veteran of the necessity of providing on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. The VCAA notice also provided examples of pertinent medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. The Board notes that the VCAA notice did not make specific reference to the relevant diagnostic code or advise the veteran that a disability rating will be determined by applying this code. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit Court held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified, the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair.". See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "Nothing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores. In this case, the veteran demonstrated that there was actual knowledge of what was needed to establish the claim. Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) ; see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). In this case, the Board points to the veteran's attendance at a scheduled VA examination in November 2003 to demonstrate actual knowledge of his awareness of what was necessary to substantiate his claim. By attending the examination, the veteran clearly showed that he was aware that current residuals were required to show that his malaria warranted a higher rating. The veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available. In fact, the veteran's representative specifically stated: "After a thorough review of the issues and the official record we can find no additional evidence or arguments to improve the veteran's position. The record is now returned for the Board's consideration." See Written Brief Presentation, dated in April 2008. Accordingly, the Board finds that the essential fairness was maintained in this case as the veteran has demonstrated actual knowledge of the evidence which was needed to establish the claim and since VA has obtained all relevant evidence. The veteran demonstrated an understanding of the evidence required to substantiate the higher rating sought and that a higher rating would be assigned based on the pertinent diagnostic criteria. The veteran attended a VA examination in an attempt to support his claim. The criteria used to evaluate the veteran's claim were discussed in a SOC in November 2004, and the veteran was told why a higher rating was not warranted under that criteria. In sum, the veteran was provided the information necessary such that any defective pre-decisional notice error was rendered non-prejudicial in terms of the essential fairness of the adjudication. Thus, the Board finds that although there was VCAA deficiency, the evidence of record is sufficient to rebut this presumption of prejudice as the record shows that this error was not prejudicial to the veteran and the essential fairness of the adjudication process in this case was preserved. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that 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). Entitlement to an increased (compensable) rating for malaria. Pertinent Law and Regulations Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2007). In a February 1971 rating decision, the RO granted service connection for malaria and assigned a noncompensable rating. The veteran sought an increased rating in August 2003. Malaria is evaluated under DC 6304. Under this code, malaria as an active disease is assigned a 100 percent rating. Note: The diagnosis of malaria depends on the identification of the malarial parasites in blood smears. If the veteran served in an endemic area and presents signs and symptoms compatible with malaria, the diagnosis may be based on clinical grounds alone. Relapses must be confirmed by the presence of malarial parasites in blood smears. Thereafter rate residuals such as liver or spleen damage under the appropriate system. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, as in the case of DC 6304, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2007). Analysis Based on the evidence of record, the Board finds that a compensable rating for malaria is not warranted. The record does not contain competent medical evidence that the veteran has active malaria or any ascertainable residuals of malaria such as liver or spleen damage. All of the medical evidence associated with the claims file during the pendency of this appeal has failed to reveal any symptoms or residuals of malaria. Physical findings on the November 2003 VA examination revealed that the abdomen was soft and nontender with normoactive bowel sounds. There was no hepatic or splenic enlargement. There was also no liver or spleen tip or edge felt. Moreover, smear tests for malaria were negative. The Board notes that the medical evidence of record dated since the 2003 VA examination is completely negative for complaint or finding for malaria or residuals thereof. In the absence of active disease or any residual disability, such as liver or spleen damage, the Board finds that there is no basis to award a compensable rating. Accordingly, the appeal is denied. Entitlement to service connection for chronic prostatitis, claimed as secondary to Agent Orange exposure. Pertinent Law and Regulations In general, service connection may be granted for disability resulting from a disease or an injury incurred or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 the 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). Service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). If a veteran was exposed to an herbicide agent - including Agent Orange, during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time since service, then he/she is entitled to service connection on a presumptive basis, even though there is no record of the disease during service. 38 C.F.R. §§ 3.307. 3.309(e). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (Vietnam Era), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non- exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. Analysis In this case, the record does not show that the veteran currently has chronic prostatitis. The service treatment records are negative for treatment or diagnosis of prostatitis, and the veteran's prostate was considered normal on separation examination in 1970. The post-service evidence includes a December 2003 VA treatment record which notes a prior medical history of chronic prostatitis; however, there was no current complaint or diagnosis of the condition provided. In addition, although a December 2005 VA treatment record documented a subjective complaint of chronic prostatitis, prostatitis was not one of many conditions diagnosed following physical examination. It is now well-settled that in order to be considered for service connection, a claimant must first have evidence of the disability alleged (i.e., a medical diagnosis confirming he has the condition in question). See Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); and Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). To the extent the veteran, himself, contends that he has chronic prostatitis, it is equally now well established that laypersons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis, date of onset, or cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In the absence of a diagnosis of chronic prostatitis, service connection may not be granted. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The veteran's claim fails on this basis alone. ORDER Entitlement to an increased (compensable) rating for malaria is denied. Entitlement to service connection for chronic prostatitis is denied. REMAND Entitlement to service connection for PTSD. According to 38 C.F.R. § 3.304(f) (2007), service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with § 4.125(a) (i.e., DSM-IV), (2) a link, established by medical evidence, between current PTSD symptoms and an in-service stressor, and (3) credible supporting evidence that the claimed in-service stressor occurred. With regard to the third PTSD criterion, evidence of a stressor in service, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). If the evidence establishes the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided 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 the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where, conversely, a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be sufficient to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, in these situations, the record must contain service records or other corroborative evidence that substantiates or verifies his testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD after the fact does not suffice to verify the occurrence of the claimed in-service stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Cohen v. Brown, 10 Vet. App. 128, 142 (1997). The veteran's service records, including his DD 214, confirm that he served in Vietnam from September 2, 1968 to September 29, 1969; however, despite his contentions, they do not show that he engaged in combat. Thus, his bare assertions of service stressors are not sufficient to establish that they occurred; rather, his stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The Board notes that, besides asserting that he was a combat veteran, the veteran has not described any in-service stressors. In a November 2003 statement, Captain T.B.G. III of the 12th Infantry (4th Infantry Division), reported that the veteran was under much stress throughout his time in Vietnam. One of the stressful events he described was the veteran having to "identify our Colonel who was killed in May of 1969 whom we knew very well." A review of the veteran's service personnel records shows that while in Vietnam he served as a company clerk and an auto rifleman with the 1st Battalion, 12th Infantry, 4th Infantry Division. In addition, a February 2007 VA progress note reflects that when describing his Vietnam experiences the veteran talked of "D.C. and his battalion commander that he had to identify." Pursuant with duty to notify and assist provisions of the VCAA, in September 2003, the RO sent the veteran a letter and asked him to complete a "stressor" questionnaire, which was enclosed with the letter. See generally 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. The veteran did not return a completed questionnaire. Although the duty to assist is not a one-way street, see Wood v. Derwinski, 1 Vet. App. 190 (1991), and VA has no duty to give the veteran another opportunity to respond to the September 2003 letter, the Board finds that the veteran should be provided another opportunity to submit a completed PTSD questionnaire. Accordingly, the case is REMANDED to the RO (via the AMC) for the following action: 1. Request that the veteran complete a PTSD questionnaire. He should identify his alleged stressor events in service, providing as many details (description of event, names, date, location, unit) as possible regarding these events. In particular, the veteran should provide the name of his "colonel" or "battalion commander" he allegedly had to identify. Inform him that his failure to provide this detailed information could prevent the verification of his stressors and result in an adverse decision. The letter should also include a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes an explanation of the information or evidence needed to establish a disability rating and effective date for the lone remaining claim on appeal - his purported entitlement to service connection for PTSD, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. After a response is received from the veteran or the time for response expires, request that the U.S. Army and Joint Services Records Research Center (JSRRC) provide any available information which might corroborate the veteran's alleged in-service stressors. Provide JSRRC with a description of his alleged stressors as identified above, as well as any other stressors he describes in response to the above request for information. Provide JSRRC with copies of any lay statements of record and personnel records obtained showing service dates, duties, and units of assignment. 3. If, and only if, it is determined that any of the veteran's stressors are verified, a VA psychiatric examination should be conducted in order to determine the nature, extent of severity, and etiology of any psychiatric disorders which may be present, to include PTSD. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. Any further indicated tests and studies to include psychological studies are to be conducted. If the diagnosis of PTSD is deemed appropriate, the examiner should specify whether any identified stressor found to be established by the record is sufficient to produce the veteran's PTSD; and whether there is a link between the current symptomatology and his period of active service. Any opinions expressed by the examiner must be accompanied by a complete rationale. 4. Finally, readjudicate the veteran's claim, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the veteran, he and his representative should be furnished a SSOC and afforded an appropriate period of time within which to respond thereto. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until contacted. The veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs