Citation Nr: 0815158	
Decision Date: 05/07/08    Archive Date: 05/14/08

DOCKET NO.  05-15 430	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Entitlement to service connection for residuals, right 
arm and hand wound with nerve damage.

2.  Entitlement to service connection for a prostate gland 
condition, as a result of exposure to herbicides.

3.  Entitlement to service connection for a personality 
disorder.

4.  Entitlement to service connection for blood in the urine.

5.  Entitlement to service connection for jungle rot on the 
feet.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Jason R. Davitian, Counsel


INTRODUCTION

The veteran served on active duty from May 1967 to March 
1970.

This case is before the Board of Veterans' Appeals (BVA or 
Board) on appeal from an April 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in 
Columbia, South Carolina (RO), which denied the benefits 
sought on appeal. The case subsequently came under the 
jurisdiction of the RO in Atlanta, Georgia. This case was 
previously before the Board in November 2007 when it was 
remanded to the Atlanta RO.  The case has since been returned 
for appellate review.

The Board notes that the issue of entitlement to service 
connection for blood in the urine 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 competent medical evidence, overall, does not show 
that any current residuals, right arm and hand wound with 
nerve damage, is related to active duty or any injury during 
active duty.

2.  The competent medical evidence, overall, does not show 
that the veteran has prostate cancer, or that any current 
prostate gland condition is related to active duty, including 
exposure to herbicides during active duty.

3.  The competent medical evidence shows that the veteran was 
diagnosed with a personality disorder in service; it does not 
show in-service aggravation of the personality disorder due 
to super-imposed disease or injury.

5.  The competent medical evidence, overall, does not show 
that any skin condition of the veteran's feet is related to 
active duty.  


CONCLUSIONS OF LAW

1.  Service connection for residuals, right arm and hand 
wound with nerve damage, is not warranted.  38 U.S.C.A. 
§§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 
38 C.F.R. §§ 3.303, 3.304 (2007).

2.  Service connection for a prostate gland condition, as a 
result of exposure to herbicides, is not warranted.  
38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007).

3.  Service connection for a personality disorder is denied 
as a matter of law.  38 C.F.R. §§ 3.303(c), 4.9, 4.127 
(2007).

4.  Service connection for jungle rot on the feet is not 
warranted.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and 
assist claimants in substantiating a claim for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (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 in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

Here, the VCAA duty to notify was satisfied with respect to 
the first three elements by way of an October 2003 letter 
sent to the appellant that fully addressed the first three 
notice elements and was sent prior to the initial AOJ 
decision in this matter.  The letter informed the appellant 
of what evidence was required to substantiate the claims and 
of the appellant's and VA's respective duties for obtaining 
evidence.  

The appellant was not asked to submit evidence and/or 
information in his possession to the AOJ.  Thus, the VCAA 
duty to notify has not been satisfied with respect to the 
fourth notice element of asking the claimant to provide any 
evidence in his possession that pertains to the claim in 
accordance with 38 C.F.R. § 3.159(b)(1).  

In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the 
United States Court of Appeals for the Federal Circuit 
(Federal Circuit) 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 as to any of the four notice elements the 
burden shifts to VA to demonstrate that the error was not 
prejudicial to the appellant.  The Federal Circuit stated 
that requiring an appellant to demonstrate prejudice as a 
result of any notice error is inconsistent with the purposes 
of both the VCAA and VA's uniquely pro-claimant benefits 
system.  

Instead, the Federal Circuit held in Sanders that all VCAA 
notice errors are presumed prejudicial and require reversal 
unless VA can show that the error did not affect the 
essential fairness of the adjudication.  To do this, VA must 
show that the purpose of the notice was not frustrated, such 
as by demonstrating:  (1) that any defect was cured by actual 
knowledge on the part of the claimant; (2) that a reasonable 
person could be expected to understand from the notice what 
was needed; or (3) that a benefit could not have been awarded 
as a matter of law.  Although not specifically discussed by 
the court, some other possible circumstances that could 
demonstrate that VA error did not prejudice the claimant 
include where the claimant has stated that he or she has no 
further evidence to submit, or where the record reflects that 
VA has obtained all relevant evidence.

In this case, the Board finds that the notice error did not 
affect the essential fairness of the adjudication.  
Correspondence from the veteran dated in November 2003, along 
with a May 2005 VA Form 9, makes it clear that he had actual 
knowledge of what was required to substantiate his service 
connection claims.  A January 2008 VA Form 646 submitted on 
his behalf certifies that he desired appellate review "on 
the evidence now of record."  He has been represented by a 
service organization during the appeal.  He failed to report 
for a scheduled hearing before a Veterans Law Judge sitting 
at the RO, suggesting he had no additional evidence or 
testimony to provide.  These factors demonstrate that the 
veteran has submitted all evidence and/or information in his 
possession and thus the purpose of the fourth notice element 
was not frustrated.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims (Court) held that, upon 
receipt of an application for a service-connection claim, 
38 U.S.C. § 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, each of the five elements of the claim, 
including notice of what is required to establish service 
connection and that a disability rating and an effective date 
for the award of benefits will be assigned if service 
connection is awarded.  In this case, although the notice 
provided did not address either the rating criteria or 
effective date provisions that are pertinent to the 
appellant's claims, such error was harmless given that 
service connection is being denied, and hence no rating or 
effective date will be assigned with respect to the claimed 
conditions.  

VA has a duty to assist the veteran in the development of the 
claim.  This duty includes assisting the veteran in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA medical 
records.  The veteran declined an opportunity to set forth 
his contentions during a hearing before a Veterans Law Judge.  

The Board recognizes that VA examinations were not conducted 
for these claims but finds that adjudication at this time is 
appropriate.  In determining whether the duty to assist 
requires that a VA medical examination be provided or medical 
opinion obtained with respect to a veteran's claim for 
benefits, there are four factors for consideration.  These 
four factors are:  (1) whether there is competent evidence of 
a current disability or persistent or recurrent symptoms of a 
disability; (2) whether there is evidence establishing that 
an event, injury, or disease occurred in service, or evidence 
establishing certain diseases manifesting during an 
applicable presumption period; (3) whether there is an 
indication that the disability or symptoms may be associated 
with the veteran's service or with another service-connected 
disability; and (4) whether there otherwise is sufficient 
competent medical evidence of record to make a decision on 
the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court has stated 
that this element establishes a low threshold and requires 
only that the evidence "indicates" that there "may" be a 
nexus between the current disability or symptoms and the 
veteran's service.  The types of evidence that "indicate" 
that a current disability "may be associated" with military 
service include, but are not limited to, medical evidence 
that suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or 
other symptoms capable of lay observation.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  

Simply stated, the standards of McLendon are not met in this 
case.  There is no indication that the veteran's post-service 
diagnoses are related to service or any event during service, 
such as exposure to herbicide.  The information and competent 
medical evidence of record (which shows no pertinent 
diagnoses during service or for years afterward, and no 
medical linking the current conditions to service), as set 
forth and analyzed below, contains sufficient competent 
medical evidence to decide the claims.  38 C.F.R. § 
3.159(c)(4); McLendon, supra; see also Wells v. Principi, 326 
F.3d 1381 (Fed. Cir. 2003) (there must be some evidence of a 
causal connection between the alleged disability and the 
veteran's military service to trigger VA's obligation to 
secure a medical opinion pursuant to 38 U.S.C.A. § 5103A(d)).  

Also significantly, in this case neither the appellant nor 
his representative has identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for a fair adjudication of the claim that has not 
been obtained.  Hence, no further notice or assistance to the 
appellant is required to fulfill VA's duty to assist the 
appellant in the development of the claim.  Smith v. Gober, 
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see 
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection

The veteran contends that he now has a right arm and hand 
condition as a result of a right wrist injury that occurred 
outside of Da Nang.  He was treated at a Navy base.  He 
relates that he now has a prostate condition due to exposure 
to herbicide.  He also relates his personality disorder and 
jungle rot to his service.  


A claimant with active service may be granted service 
connection for disease or disability either incurred in or 
aggravated by active military service.  38 U.S.C.A. §§ 1110, 
1131; 38 C.F.R. §§ 3.303, 3.304.  

The disease entity for which service connection is sought 
must be "chronic" as opposed to merely "acute and transitory" 
in nature.  For the showing of chronic disease in service, 
there is required a combination of manifestations sufficient 
to identify the disease entity and sufficient observation to 
establish chronicity at the time as distinguished from merely 
isolated findings or a diagnosis including the word 
"chronic."  Continuity of symptomatology is required where 
the condition noted during service is not, in fact, shown to 
be chronic or where the diagnosis of chronicity may be 
legitimately questioned.  Where the fact of chronicity in 
service is not adequately supported then a showing of 
continuity after discharge is required to support the claim.  
38 C.F.R. § 3.303(b).

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).

Service connection generally requires evidence of a current 
disability with a relationship or connection to an injury or 
disease or some other manifestation of the disability during 
service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) 
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  
Where the determinative issue involves medical causation or a 
medical diagnosis, there must be competent medical evidence 
to the effect that the claim is plausible; lay assertions of 
medical status do not constitute competent medical evidence.  
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

If a veteran was exposed to a herbicide agent during active 
military, naval, or air service, prostate cancer shall be 
service-connected if the requirements of 38 C.F.R. 
§ 3.307(a)(6) are met, even though 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.  38 C.F.R. § 
3.309(e).  The Secretary of the Department of Veterans 
Affairs (Secretary) has determined that there is no positive 
association between exposure to herbicides and any other 
condition for which the Secretary has not specifically 
determined that a presumption of service connection is 
warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); see also 
61 Fed. Reg. 57586-57589 (1996).

Notwithstanding the foregoing presumptive provisions, the 
Federal Circuit has held that a claimant is not precluded 
from establishing service connection for a disease averred to 
be related to herbicide exposure, as long as there is proof 
of such direct causation.  See Combee v. Brown, 34 F.3d 1039, 
1043-1044 (Fed. Cir. 1994).  See also Brock v. Brown, 10 Vet. 
App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. 
Dec. 15, 2000).

In this case, the veteran has not been diagnosed with 
prostate cancer, and does not specifically contend that he 
has prostate cancer.  Accordingly, his claim for service 
connection for a condition of the prostate gland will be 
considered only on a direct basis.  See Combee, supra.

With respect to the veteran's claimed personality disorder, 
the Board observes that congenital or developmental defects, 
including personality disorders, are not considered diseases 
or injuries within the meaning of applicable legislation 
pertaining to disability compensation for VA purposes, and 
provide no basis for service connection.  See 38 C.F.R. § 
3.303(c), 4.9. 4.127 (2007); Beno v. Principi, 3 Vet. App. 
439 (1992); see generally, Winn v. Brown, 8 Vet. App. 510 
(1996) (upholding Secretary's authority to exclude certain 
conditions from consideration as disabilities under 38 C.F.R. 
§ 4.9).  However, service connection may be granted for 
disability due to in-service aggravation of such a condition 
due to superimposed disease or injury.  See 38 C.F.R. §§ 
3.310; 4.127 (2007); VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 
(1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); 
Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).


The veteran's service personnel records show that he had 
active military service in the Republic of Vietnam during the 
Vietnam Era and thus exposure to herbicides is assumed. 38 
C.F.R. § 3.307(a)(6)(iii).

The veteran's service medical records include a January 1970 
certificate of psychiatric evaluation providing a diagnosis 
of inadequate personality, chronic, severe, manifested by 
repeated AWOLs, faulty judgment, poor motivation, non-
commitment to productive goals and lack of response to 
rehabilitative efforts.  The service medical records are 
otherwise negative for any psychiatric complaints, symptoms, 
findings or diagnoses.  

Because the diagnosis of inadequate personality is a 
personality disorder, it is not subject to compensation 
without evidence of in-service aggravation by a superimposed 
disease or injury.  Moreover, the service medical records and 
post-service medical records in the present case shows no 
such aggravating disease or injury, and the veteran has not 
alleged the presence of one.  Therefore, the veteran's claim 
of entitlement to service connection for a personality 
disorder must be denied.

The veteran's service medical records also weigh against his 
remaining claims.  They are negative for complaints, 
symptoms, findings or diagnoses related to any injury of the 
right arm and hand, any prostate gland condition, or any skin 
condition of the feet.  The report of the veteran's February 
1970 separation medical examination provides that all 
clinical evaluations were normal and identifies no defects or 
diagnoses.  The veteran's February 1970 report of medical 
history shows that he denied all complaints.  The physician's 
summary noted only the usual childhood diseases.  

Because these claimed conditions were not seen during 
service, service connection may not be established based on 
chronicity in service or continuity of symptomatology 
thereafter.  38 C.F.R. § 3.303; Savage v. Gober, 10 Vet. App. 
488, 494-97 (1997).  



Turning to post-service medical evidence, the Board finds it 
significant that the record is negative for pertinent 
complaints, symptoms, findings or diagnoses pertaining to the 
claimed conditions for many years after the veteran's 
separation from service.  The Federal Circuit has determined 
that a significant lapse in time between service and post-
service medical treatment may be considered as part of the 
analysis of a service connection claim.  Maxson v. Gober, 230 
F.3d 1330 (Fed. Cir. 2000).

Private post-service outpatient treatment reports show 
complaints and treatment of right shoulder and elbow pain in 
1998, and right hand pain in 2003.  October 2003 X-rays found 
osteoarthritic changes of the third finger MP and IP joints.  
The veteran was variously treated for, and diagnosed with, 
onychomycosis, tinea pedis and foot fungus beginning in 1996 
to 2003.  In June 2002, he had an elevated prostate specific 
antigen (PSA) level.  Biopsies conducted in July 2002 found 
no evidence of malignancy.  

These post-service records are negative for any nexus opinion 
or other evidence linking any post-service right arm and hand 
condition, prostate gland condition or jungle rot of the feet 
to the veteran's service or any incident during service, such 
as herbicide exposure.  Thus, the post-service medical 
records, indicating disorders that began years after service 
with no indication of any association to service, are found 
to provide evidence against his claims.

With respect to the veteran's own contentions, 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).

Nevertheless, to the extent that the veteran is able to 
observe continuity of the claimed right arm and hand 
condition, prostate condition and jungle rot of the feet 
since service, his opinions are outweighed by the lack of 
pertinent findings in his service medical records, the lack 
of objective medical evidence of the claimed conditions for 
many years after separation, and the lack of probative 
medical opinions in support of his claims.

Simply stated, the Board finds that the service medical 
records (indicating none of the claimed conditions during 
service) and post-service medical records (indicating 
disorders that began years after service and are unrelated to 
service) outweigh the veteran's contentions.

In sum, the medical evidence demonstrates that the veteran is 
not entitled to service connection for residuals, right arm 
and hand wound with nerve damage; prostate gland condition, 
as a result of exposure to herbicides; personality disorder; 
and jungle rot on the feet.  As the preponderance of the 
evidence is against the claims, the benefit of the doubt 
doctrine is not for application.  See generally Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 
3d 1361 (Fed. Cir. 2001).


ORDER

Service connection for residuals, right arm and hand wound 
with nerve damage, is denied. 

Service connection for a prostate gland condition, as a 
result of exposure to herbicides, is denied.

Service connection for a personality disorder is denied.

Service connection for jungle rot on the feet is denied.


REMAND

A preliminary review of the record indicates that the 
veteran's claim for service connection for blood in the urine 
requires additional evidentiary development.  

The veteran's service medical records show that he had gross 
hematuria and blood in the urine in August 1969 and January 
1970.  He was hospitalized for 5 days in August 1969 with a 
final diagnosis of hematuria, renal, etiology undetermined. 

Post-service medical records reflect that he complained of 
flank pain and blood in the urine in 2001 and 2003.  A right 
ureteral stone was removed in February 2003.  

On his May 2005 VA 9 (substantive appeal), the veteran stated 
that he has had blood in his urine ever since 1969.  Lay 
testimony is competent to establish the presence of 
observable symptomatology and "may provide sufficient 
support for a claim of service connection." Layno, supra.   

Based on the foregoing evidence and in accordance with the 
requirements of the VCAA, the proper adjudication of this 
claim requires additional evidentiary development.

Accordingly, the case is REMANDED for the following action:

1.  Provide the veteran's claims file 
to an appropriate VA examiner for 
review and comment, and examination if 
required.  The examiner is requested to 
review the veteran's pertinent service 
medical records and post-service 
medical records, as identified above.  
After this review, the examiner is 
requested to address whether the 
veteran has a current or chronic 
disorder causing him to have blood in 
his urine.  If so, the examiner is 
requested to opine whether it is at 
least as likely as not (50 percent or 
more likelihood) that the veteran's 
post-service blood in the urine is 
related to the blood in the urine noted 
in his service medical records, in 
light of his reported history of 
continuous blood in the urine since 
1969.  A complete rationale for all 
opinions expressed must be provided.  
If the examiner finds it impossible to 
provide an opinion without resort to 
pure speculation, the examiner should 
so indicate.

2.  Then, readjudicate the veteran's 
claim for service connection for blood 
in the urine.  If the decision is 
adverse to the veteran, he and his 
representative should be provided a 
supplemental statement of the case.  A 
reasonable period of time for a 
response should be afforded.  
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).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs