Citation Nr: 0813711 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-12 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: African American PTSD Association ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from December 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). FINDINGS OF FACT 1. The evidence of record does not establish that the veteran engaged in combat with the enemy. 2. There is no corroboration or verification of the occurrences of the veteran's claimed stressors by official service records or other credible supporting evidence. 3. The competent evidence of record demonstrates that a skin disorder is not related to active military service, to include as due to herbicide exposure. CONCLUSIONS OF LAW 1. Post-traumatic stress disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. A skin condition was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred, to include as due to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Upon receipt of a substantially complete application for benefits, VA must notify the veteran of what information or evidence is needed in order to substantiate the claim, and it must assist the veteran by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Prior to the initial adjudication of the veteran's claims, the RO's letter dated in June 2004 advised the veteran of the foregoing elements of the notice requirement. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the veteran has also been satisfied in this case. The RO has obtained the veteran's service medical records, his personnel records, his VA treatment records, his unit records, and his identified private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, all necessary VA medical examinations have been conducted. Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be granted for disability due to a disease or injury which was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, 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). In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of 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. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). I. Post-Traumatic Stress Disorder Service connection for post-traumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2007); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). The United States Court of Appeals for Veterans Claims has held that [w]here it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," e.g., credible, and "consistent with the circumstances, conditions, or hardships of [combat] service." Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); see also 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304. Furthermore, if the veteran did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Service department records must support, and not contradict, the veteran's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Historically, the veteran served on active duty in the Army from December 1965 to September 1967. The veteran's service personnel records noted that he was stationed in the Republic of Vietnam from October 1966 to September 1967. During his tour of service in Vietnam, the veteran's service personnel records listed his principal duty as a radio relay carrier attendant, and noted that he was in Company A, 459th Signal Battalion, 1st Brigade, 21st Group. The veteran's service medical records are negative for any complaints of or treatment for any combat-related injuries or a psychiatric disorder. The veteran's September 1967 separation examination noted his psychiatric status as "normal." On a medical history report, completed at that time, the veteran denied nervous trouble of any sort, frequent or terrifying nightmares, loss of memory or amnesia, trouble sleeping, and depression or excessive worry. Post-service medical treatment records from July 2004 through September 2005 revealed diagnoses of and treatment for PTSD and mild anxiety disorder. A May 2005 private treatment letter stated that the veteran had been attending PTSD group meetings since August 2003. None of the records express an opinion as to whether the veteran's PTSD symptoms were related to his active military service. In September 2004, the veteran underwent a VA PTSD examination. The veteran complained of limited socialization, depression, sleep difficulty, and nightmares. The veteran stated that he had a recurrent recollection of being in Vietnam. Specifically, the veteran explained his recollection of being in a tent in Da Nang when the tent was hit and only three soldiers, including him, walked out alive. He was bloody and a severed hand of a soldier was on his chest. The veteran also reported that he was not in combat during service. Upon mental status examination the veteran was alert and fully oriented, casually dressed, calm, and somewhat guarded. He spoke clearly, slowly, and in a low tone of voice. His answers were coherent and relevant. His mood was depressed and his affect was congruent. The veteran denied suicidal and homicidal ideation as well as hallucinations and delusions. The veteran's memory was intact, and there was no impairment of his thought process. The VA examiner noted "no post-military stressors." The diagnosis was chronic PTSD, and a Global Assessment of Functioning (GAF) score of 65 was assigned. The evidence of record does not show that the veteran engaged in combat with the enemy. The veteran's service personnel records provide no evidence of participation in combat. A review of his report of separation, Form DD 214, revealed that he was awarded a National Defense Service Medal and a Vietnam Campaign Medal. No decorations, medals, badges, or commendations confirming the veteran's participation in combat were indicated. In addition, the veteran's unit records do not reveal that the veteran or any member of his unit participated in combat during the time period that the veteran was in Vietnam. As the veteran is not shown to have participated in combat, the veteran's assertions of service stressors are not sufficient to establish their occurrence. Rather, a service stressor must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen, 10 Vet. App. at 128; Doran, 6 Vet. App. at 283. In considering whether there is credible supporting evidence that the claimed inservice stressor occurred, the Board must assess the credibility and weight of all the evidence, including the medical evidence. In support of his claim, the veteran has reported two inservice stressors which he believes could have led to his current PTSD. Specifically, he provided statements indicating that in May 1967, he was sent to Da Nang for one week to replace a service member who was on "R&R." While sleeping in a tent with ten other men in Da Nang, the base came under attack and his tent was hit by a mortar round. The veteran awoke to find a severed hand on his chest that had been blown off of someone. Of the ten men in the tent with the veteran, only three survived. The veteran also stated that, periodically between January 1967 and August 1967, he performed volunteer work at the 8th Field Hospital in Nha Trang, where he performed duties of helping to carry the wounded and the dead from a helicopter pad to emergency areas. The veteran has also submitted printouts of webpages regarding operations of combat in Vietnam in support of his claim. The webpages, however, do not confirm that either the veteran or any member of his unit was in Da Nang in May 1967 and exposed to mortar fire, or that the veteran performed volunteer work carrying the wounded and the dead to emergency areas. In an attempt to verify the veteran's stressors, the RO obtained the veteran's unit records, which are associated with the claims file. In January 2006, the Military Records Specialist for the RO reviewed the veteran's unit records and prepared a summary and opinion addressing whether the veteran's reported stressors were verified by the unit records. The Military Records Specialist determined the following: The unit records including the Operational Report for that period state the veteran's unit was involved in the installation of telephone hardware in Nha Trang. The same report records Company A's physical location as Nha Trang. There is no reference to any personnel being sent on temporary duty to Danang. The Combat Area Casualty File contains a listing of all the fatalities experienced by the 459th Signal Battalion and does not report any fatalities during the veteran's tour. The US Air Force recorded all attacks directed at the Danang Airbase and no attack was reported during May, 1967. The headquarters, Military Assistance Command Vietnam monthly summary does not record any attacks directed at Danang during May, 1967. The US Naval Forces, Vietnam monthly summary for May, 1967 also does not include any information concerning enemy rocket or artillery attacks directed at the Naval Support Activity Danang. The veteran's personnel and medical records do not contain any information that would suggest he was assigned to Danang in May, 1967. Initially, none of the diagnoses of PTSD are shown to be directly linked to either of the veteran's claimed inservice stressors. More importantly, notwithstanding the diagnoses of PTSD, the evidence of record does not provide corroboration or verification of the occurrences of the veteran's claimed stressors by official service records or other credible supporting evidence. Neither the veteran's service medical records, his service personnel records, his unit records, nor the webpages that he submitted confirm that the veteran was exposed to mortar fire in Da Nang in May 1967 or that he volunteered to help carry the wounded and the dead to emergency areas during service in Vietnam. The preponderance of the evidence is against the veteran's claim for service connection for PTSD. See 38 U.S.C.A. § 5107. The objective evidence of record does not show that the veteran engaged in combat with the enemy, and therefore his testimony alone is not sufficient to establish the occurrence of the claimed stressors; accordingly, his testimony must be corroborated by credible supporting evidence. As no credible corroborating evidence that the stressors actually occurred is of record, the requirements for a grant of service connection for PTSD are not met. 38 C.F.R. § 3.304(f). Accordingly, because there is no verified stressor, service connection for PTSD is not warranted. See id. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Skin Disorder As noted above, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). In addition, VA regulations provide that if a veteran was exposed to an herbicide agent (Agent Orange) during active service, service connection is presumed for the following disorders: chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Chronic lymphocytic leukemia (CLL); 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). These diseases must become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must 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. 38 C.F.R. § 3.307(a)(6)(ii). 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(f); 38 C.F.R. § 3.307(a)(6)(iii). Service personnel records indicated the veteran served in Vietnam from October 1966 to September 1967. Accordingly, the veteran is presumed exposed to Agent Orange. Although the veteran is presumed exposed to Agent Orange, the Board finds that the medical evidence of record does not support presumptive service connection for a skin disorder. A thorough review of the record indicates there is no diagnosis of a disorder eligible for presumptive service connection. Rather, the only skin disorders for which service connection is warranted under 38 C.F.R. § 3.309(e) are porphyria cutanea tarda, and chloracne (or other acneform disease consistent with chloracne). There is no evidence that the veteran has either of these conditions, or any of the other presumptive diseases for which service connection on the basis of herbicide exposure can be granted. 38 C.F.R. § 3.309. Accordingly, presumptive service connection for a skin disorder is not warranted. Notwithstanding the foregoing, the veteran may still establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of 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. Hickson, 12 Vet. App. at 253. The veteran's service medical records reveal that in January 1967, he complained of a rash. The diagnosis was tinea corporis. A September 1967 separation examination noted that the veteran's skin was normal. On a report of medical history, completed at that time, the veteran denied skin diseases. VA treatment records from July 2004 through September 2005 reveal the veteran's complaints of and treatment for prurigo nodularis and lichen simplex chronicus. A July 2004 treatment record noted that, upon physical examination, the veteran had multiple primary, secondary lesions diffusely on his torso with hyperpigmented maculopapular scarring red papules, red macules with ulceration and surrounding edema overlying excoriations. The diagnosis was diffuse skin lesions reportedly pruritic, recurrent without clear exac/precipitants or weather relations. A March 2005 treatment record noted that the veteran reported a 30 year history of prurigo nodularis, and that he was using medication. The veteran still had occasional flares and was not compliant with his multiple medications. Physical examination of the veteran's trunk and arms revealed post inflammatory hyperpigmented macules and papules (mostly flat lesions) over the torso with a few excoriations on the upper back. The diagnosis was prurigo nodularis. A June 2005 treatment record noted the veteran's complaints of a pruritis lesion on his left leg. Physical examination of the trunk and arms revealed a few hyperpigmented macules scattered throughout with excoriated papules with overlying crusted. Physical examination of the legs revealed a 3 by 6 centimeter scaly plaque with excoriation with hyperpigmentation perilesionally. The diagnoses were prurigo nodularis of the trunk and shoulders, still with some activity, and lichen simplex chronicus of the left lower leg. In January 2006, the veteran underwent a VA dermatology examination. The veteran reported a history of skin lesions for over 30 years, which he stated started during service. The veteran stated that he had been treated with creams and oral medications, and that his disease was still active, especially around the shoulders and one persistent spot on the left leg. Physical examination revealed the upper anterior and posterior shoulders to have several linear excoriated plaques, few with erosions, and several healed hyperpigmented macules and papules over the trunk, buttocks, and thighs. There was a lichenified thick plaque on the left lower leg. The overall body surface area affected was approximately 25 percent. The percent of exposed areas affected was less than 1 percent. Onset and course were noted to be intermittent and non-worsening. The diagnoses were "no tinea corporis," "prurigo nodularis, not related to tinea corporis," and "lichen simplex chronicus, left leg." The VA examiner concluded that there was "no medical evidence that tinea corporis causes prurigo nodularis." The Board finds that that the evidence of record does not support a finding of service connection for a skin disorder. The evidence of record shows diagnoses of prurigo nodularis and lichen simplex chronicus. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). Although there was a diagnosis of tinea corporis inservice, the VA examiner concluded that there was no medical evidence that the veteran's inservice skin disorder caused his current skin disorder. Accordingly, the medical evidence of record does not suggest a relationship between the diagnosed disorders and active service. Hickson, 12 Vet. App. at 253. In addition, the first post-service medical evidence of a skin disorder was in July 2004, over 36 years after the veteran's discharge from service. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The Board acknowledges that the veteran can provide competent evidence about what he experienced; for example, his statements are competent evidence as to what symptoms he experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board notes that the veteran has alleged in statements on appeal that his skin disorder has persisted since service. However, the veteran's statements and testimony, as a lay person, are not competent evidence to assert that a relationship exists between his period of service and the disorder on appeal, or to otherwise assert medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). As there is no medical evidence that the veteran's current skin disorder is related to service, service connection for a skin disorder is not warranted. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. ORDER Service connection for PTSD is denied. Service connection for a skin disorder, to include as due to herbicide exposure, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs