Citation Nr: 0823524 Decision Date: 07/16/08 Archive Date: 07/23/08 DOCKET NO. 06-30 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for dysplasia, colon polyps, including due to exposure to Agent Orange. 2. Entitlement to service connection for chronic obstructive pulmonary disease, including due to exposure to Agent Orange. 3. Entitlement to nonservice-connected pension benefits. ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The veteran had active military service from January 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The veteran served in the Republic of Vietnam during the Vietnam Era; exposure to Agent Orange may be presumed. 2. The veteran has not been diagnosed with a disease that is presumed to be caused by Agent Orange. 3. The competent medical evidence does not tend to show that the veteran's dysplasia/colon polyps and/or chronic obstructive pulmonary disease are related to his military service, including exposure to Agent Orange, and continuity of symptomatology has not been demonstrated. 4. The veteran has a spouse. 5. The veteran's countable annualized income exceeded the maximum annual rate at all times during the appellate term. CONCLUSIONS OF LAW 1. Dysplasia/colon polyps was/were not incurred in or aggravated by active military service, and may not be presumed to have been due to exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(e) (2007). 2. Chronic obstructive pulmonary disease was not incurred in or aggravated by active military service, and may not be presumed to have been due to exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(e). 3. The criteria for entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 1521, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in April 2006 correspondence of the information and evidence needed to substantiate and complete a claim, as well as the evidence required to establish entitlement to nonservice-connected pension, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. Although he was not provided adequate notice of how disability ratings and effective dates are assigned, the Board finds that this deficiency is not prejudicial to the veteran since the preponderance of the evidence is against his claims. He was afforded a meaningful opportunity to participate in the adjudication of the claims, and there is no evidence of any VA error in notifying or assisting the veteran that reasonably affects the fairness of this adjudication. Analysis The Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). With regard to disabilities a veteran attributes to exposure to Agent Orange, the law provides that for veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending May 7, 1975, service connection may be presumed for certain diseases enumerated by statute and regulations that become manifest within a particular period, if any such period is prescribed. The specified diseases do not include chronic obstructive pulmonary disease, dysplasia or colon polyps. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has specifically determined that there is no positive association between exposure to herbicides and gastrointestinal and digestive disease including liver toxicity (other than diabetes mellitus, type II); gastrointestinal tract tumors; and respiratory disorders (other than certain respiratory cancers). Indeed the Secretary has determined that there is no association for any condition for which his office has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32395 (2007). Notwithstanding the foregoing discussion regarding presumptive service connection, which arose out of the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102- 4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Proof of direct service connection between exposure and disease entails showing that exposure during service actually caused the malady which develops years later. Actual causation carries a very difficult burden of proof. See Combee, 34 F.3d at 1042. 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). The evidence shows that the veteran served in the Republic of Vietnam during the Vietnam Era; hence, exposure to Agent Orange may be conceded. He has asserted that he has dysplasia/colon polyps and chronic obstructive pulmonary disease that are due to his military service, particularly his exposure to Agent Orange. As mentioned above, 38 C.F.R. § 3.309(e) lists certain diseases for which service connection may be presumed due to exposure to herbicide agents. However, neither colon polyps/dysplasia nor chronic obstructive pulmonary disease is included in that list. Consequently, service connection for dysplasia/colon polyps and/or chronic obstructive pulmonary disease may not be granted on a presumptive basis. See 38 C.F.R. § 3.309 (a), (e). Since service connection may not be allowed on a presumptive basis, the veteran must show that the disabilities were incurred in or aggravated by service on a direct basis. The veteran's service treatment records do not show any complaints, findings or diagnosis pertaining to chronic obstructive pulmonary disease. Similarly, they do not show any treatment for a chronic colon condition. Upon separation examination in November 1970, the veteran reported that he was in good health. His lungs, chest, and digestive system were clinically found to be within normal limits. There is also no competent medical opinion relating either disorder to the veteran's active military service, and continuity of symptomatology has not been demonstrated. In fact, the chronic obstructive pulmonary disease was initially manifest in the 1990's, more than 20 years after the veteran's discharge from active duty. Dysplasia/colon polyps were initially manifest in 2006, more than 30 years after discharge from active duty. To the extent that the veteran asserts that dysplasia, colon polyps and/or chronic obstructive pulmonary disease are related to his military service, including exposure to Agent Orange he is not shown to have any medical expertise. Hence, his statements are also insufficient upon which to base a grant of service connection. Espiritu. Accordingly, the claims for service connection for dysplasia, colon polyps and chronic obstructive pulmonary disease, including secondary to exposure to Agent Orange, must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nonservice-Connected Pension Benefits The veteran seeks entitlement to a permanent and total disability evaluation for pension purposes. This is a benefit payable by VA to a veteran of a period of war because of permanent and total disability. The amount of pension actually received is the difference between the recipient's countable income and the maximum annual rate permitted by VA given the recipient's circumstances. Income eligibility for pension, and the amount of any pension payable, is determined by subtracting the veteran's annual family countable income from the maximum annual pension rate applicable to the veteran's circumstances, that is, the number of dependents. Basic entitlement to such pension exists if, among other things, the veteran's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. §3.21(a)(3), 3.23(a), (b), (d)(4). The MAPR is published in Appendix B of VA Manual M21-1 and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23. The maximum annual pension rate is adjusted from year to year. This veteran seeks pension for the year beginning March 2006. At that time, and currently, he had a dependent spouse and no children. Effective December 1, 2005, the maximum annual rate of improved pension for a married veteran was $13,855. Effective December 1, 2006, the maximum annual rate of improved pension for a married veteran was $14,313. Effective December 1, 2007, the maximum annual rate of improved pension for a married veteran was $14,643. See VA Manual M21-1, Part I, Appendix B (Change 52, September 29, 2006); 38 U.S.C.A. § 1521; 38 C.F.R. § 3.23. Thus, to be eligible, the veteran's family countable income must be below that amount. In determining annual income, all payments of any kind or from any source shall be counted as income during the 12- month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. § 3.271(a)(1). Salary means the gross amount of a person's earnings or wages prior to any deductions for things such as taxes, insurance, retirement plans, social security, etc. 38 C.F.R. § 3.271(b). The term "veteran's annual income" for purposes of improved pension eligibility includes the veteran's annual income and the annual income of the veteran's dependent spouse. 38 C.F.R. § 3.23(d)(4). Under 38 C.F.R. § 3.272, the following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts in banks and similar institutions acquired by reason of death of the other joint owner; and medical expenses paid within the applicable year and are in excess of five percent of the MAPR. On his application in April 2006, the veteran reported that he received retirement wages from the U.S. Railroad in the amount of $2,295 per month, plus $50 a year in interest income. His spouse received $65 a year in unemployment compensation. He also reported medical expenses in the amount of $2,800. This translates to an annual income exceeding the MAPR at all times during the appellate term for a veteran and a spouse. Based on the evidence of record, including the veteran's self-reported income and expenses, the Board finds that his annual income exceeds the MAPR for the appellate term. While the Board sympathizes with the veteran's situation, it is bound by the laws and regulations governing VA benefits. Pursuant to the governing legal authority, he does not meet the basic income eligibility requirement to establish entitlement to non-service-connected pension benefits. Accordingly, his claim must be denied. ORDER Entitlement to service connection for dysplasia, colon polyps, including due to exposure to Agent Orange, is denied. Entitlement to service connection for chronic obstructive pulmonary disease, including due to exposure to Agent Orange, is denied. Entitlement to nonservice-connected pension is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs