Citation Nr: 0814297 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 02-00 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD), to include as due to exposure to herbicides. 2. Entitlement to service connection for osteoarthritis, to include as due to exposure to herbicides. 3. Entitlement to service connection for a prostate disorder, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The veteran served on active duty from February 1969 to September 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2000 rating decision by the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to the benefits currently sought on appeal. A hearing on these matters was held before the undersigned Veterans Law Judge sitting at the RO on February 12, 2002. A copy of the hearing transcript has been associated with the file. In September 2003, the Board remanded these issues to the RO (via the Appeals Management Center (AMC)) for further evidentiary development. After completion of the requested development, the AMC returned the case to the Board for appellate review. 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. The veteran served in the Republic of Vietnam, where he is presumed to have been exposed to herbicides. 2. Neither osteoarthritis nor prostate disorders are presumptively linked to herbicide exposure. 3. Osteoarthritis first manifested years after the veteran's service and is not related to his service. 4. A prostate disorder first manifested years after the veteran's service and is not related to service. CONCLUSIONS OF LAW 1. Osteoarthritis was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. A prostate disorder was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated March 2004, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claims. The veteran was notified of the way initial disability ratings and effective dates are established in March 2006. In April 2006, the veteran advised that he had no further evidence to submit. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his claims. The duties to notify and assist have been met. Presumptive Service Connection for Herbicide Exposure For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). In this case, the veteran's DD-214 indicates that the veteran served in the Republic of Vietnam during the relevant time period. Therefore, he is presumed to have been exposed to herbicides. The Agent Orange Act of 1991 (in part) directed the Secretary of VA to enter into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. The Secretary's determination must be based on consideration of NAS reports and all other sound medical and scientific information and analysis available to the Secretary. See 38 U.S.C.A. § 1116 (b) and (c). As a result of this ongoing research, certain diseases have been found to be associated with exposure to herbicide agents and will be presumed by VA to have been incurred in service even though there is no evidence of such disease during such period of service. 38 C.F.R. §§ 3.307(a), 3.309(e). It is important to note that the diseases listed at 38 C.F.R. § 3.309(e) are based on findings provided from scientific data furnished by the National Academy of Sciences (NAS). The NAS conducts studies to "summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in Vietnam during the Vietnam era and each disease suspected to be associated with such exposure." 64 Fed. Reg. 59,232-59,243 (Nov. 2, 1999). Reports from NAS are submitted at two-year intervals to reflect the most recent findings. Based on input from the NAS reports, the Congress amends the statutory provisions of the Agent Orange Act found at 38 U.S.C.A. § 1116 and the Secretary promulgates the necessary regulatory changes to reflect the latest additions of diseases shown to be associated with exposure to herbicides. In this case, the latest update was published in 2007. Neither osteoarthritis nor prostate disorders are among the diseases found to have a scientific relationship such that they can be presumed that exposure to herbicides used in Vietnam during the Vietnam era is a cause of the diseases. See 72 Fed. Reg. 32395-32407 (2007). Thus, it may not be presumed that the veteran's osteoarthritis or prostate disorder is linked to herbicide exposure. Direct Service Connection - Legal Criteria Although the evidence does not support a presumptive link between the veteran's osteoarthritis or prostate disorder and his active service, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). 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). Arthritis may be presumed to have been incurred in service, if the evidence shows that such disease became manifest to a degree of 10 percent or more within one year from separation from active service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Osteoarthritis As a preliminary matter, the Board notes that the veteran's separation examination is negative for complaints of osteoarthritis, and no evidence has been received that demonstrates a compensable manifestation of osteoarthritis within one year of discharge. Thus, the presumptive period is not for application. 38 C.F.R. § 3.307, 3.309. In February 1996, the veteran was evaluated for joint pain in the hands and feet by private physicians P.F. and E.M. The veteran reported a history of pain in the hands and feet after exercise and on damp days. After examination, provisional diagnoses of osteoarthritis of the bilateral hands and metatarsalgia secondary to pes planus were given. On VA examination in April 2000, X-ray studies revealed osteoarthritis in the veteran's hands and feet, bilaterally. The examiner did not comment on whether the disorder was related to the veteran's service. The veteran received a second VA examination in December 2002. X-ray studies again showed osteoarthritis of the hands and feet, bilaterally. The examiner found that the osteoarthritis affecting the veteran's hands "could have been precipitated" by activities in Vietnam, such as pulling brush, and that the osteoarthritis affecting the veteran's feet also "could possibly have been due to the prolonged marching, etc..." The veteran has continued to receive treatment for osteoarthritis of the hands and feet. None of his treating physicians have related his osteoarthritis to his active service. On review, the preponderance of the evidence is against a finding that the veteran's osteoarthritis was incurred during active service. There was no evidence of osteoarthritis upon the veteran's discharge from service in September 1970. Osteoarthritis did not manifest for many years after service discharge. The Board has considered the opinion of the December 2002 VA examiner, who found that osteoarthritis "could have been" the result of the veteran's active service. The use of the phrase "could have been," however, renders the examiner's opinion speculative in nature. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board finds that the December 2002 nexus opinion is of low probative value due to its speculative nature. The Board has also considered the veteran's belief that his osteoarthritis is causally related to active service. However, the veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In conclusion, a preponderance of the evidence is against a finding that the veteran's osteoarthritis is causally related to active service. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Prostate Disorder There were no complaints of a prostate disorder at service discharge. The post-service medical evidence indicates that benign prostatic hypertrophy (BPH) was first diagnosed in October 1994. The course of the veteran's treatment was uneventful until December 2001, at which point his symptoms began to return. An endoscopy conducted in May 2002 diagnosed interstitial cystitis. The veteran received a VA examination in January 2003. After conducting a physical examination of the veteran and reviewing the records that had been provided, the examiner concluded that the veteran's prostate disorder was "unlikely to be due to service exposure" because of the veteran's relatively normal prostate-specific antigen test results and a benign May 2002 prostate examination. In February 2005, a second VA examination was conducted. The claims folder was reviewed. The veteran gave a history of problems with hesitancy and nocturia beginning in 1987. He has had kidney stones approximately twice a year since then. His current symptoms were obstructive voiding patterns, frequency and nocturia. Prostate-specific antigen results were reported to be appropriate. The examiner found that the veteran's prostate disorder was not related to his military service. On review, a preponderance of the evidence is against a finding that the veteran's prostate disorder is related to his military service. There was no evidence of a prostate disorder upon service discharge. The first symptoms of a prostate disorder manifested many years after discharge. There is no medical evidence suggesting that there is a nexus between the veteran's disability and his service. Service connection on a direct basis is not warranted. The Board acknowledges the veteran's belief that his prostate disorder is causally related to active service. However, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In conclusion, a preponderance of the evidence is against a finding that the veteran's prostate disorder is causally related to active service. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for osteoarthritis is denied. Service connection for a prostate disorder is denied. REMAND The veteran has attributed his PTSD to an incident at Bien Hoa Air Force Base in August or September 1969. While the veteran was on guard duty, enemy forces infiltrated the base, killing some U.S. servicemembers and damaging or destroying a U.S. aircraft. The U. S. Army and Joint Services Records Research Center (JSRRC) has verified that a similar episode at Bien Hoa Air Force Base took place during the relevant time period. According to the veteran's service personnel records, the veteran was attached to Headquarters, Special Troops and the General Staff during the relevant time period. He has indicated that he was assigned to G-2, Central Intelligence, Criminal Investigation Division. On remand, the veteran's unit records should be requested in an effort verify his presence at Bien Hoa Air Force Base in either August or September 1967. There is also evidence that the veteran has received treatment at the Boston Vet Center for PTSD. A request for those records should be made upon remand. Accordingly, the case is REMANDED for the following action: 1. Request that the National Personnel Records Center and/or the JSRRC provide the unit history for Headquarters, Special Troops, and the General Staff for August and September 1969, and specifically any assignment of the veteran to duty at Bien Hoa Air Force Base during those time periods. The veteran has indicated that he was attached to G-2, Special Troops, Central Intelligence, Criminal Investigation Division. If the requested records are not available, a negative response should be obtained. 2. After obtaining the appropriate authorization from the veteran, obtain the records of his treatment for PTSD at the Boston Vet Center. 3. After the above has been completed, readjudicate the issue on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If the issue on appeal continues to be denied, the veteran and his representative must be provided a supplemental statement of the case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran need take no action unless otherwise notified, but he may submit additional evidence and argument on the matter the Board has remanded to the regional office. 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs