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