Citation Nr: 1007724 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 07-34 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a skin condition, to include as a result of exposure to herbicides. 2. Entitlement to service connection for a bone marrow condition, to include as a result of exposure to herbicides. 3. Entitlement to service connection for peripheral neuropathy, to include as a result of exposure to herbicides. 4. Entitlement to service connection for a respiratory condition, to include as a result of exposure to herbicides. 5. Entitlement to service connection for a liver condition, to include as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1955 to February 1975. In addition to other awards and decorations, the Veteran is in receipt of the Bronze Star Medal with second Oak Leaf Cluster, Army Commendation Medal with second Oak Leaf Cluster, Vietnam Service Medal with seven campaign stars, and the Vietnam Cross of Gallantry with Palm device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in April 2006 and March 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which denied entitlement to the benefits currently sought on appeal. The Veteran was scheduled for a Travel Board hearing before the Board in July 2009, however he failed to appear. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2009). Due to a change of address submitted near the time of the June 2009 hearing notification letter, the Board was unsure as to whether the Veteran had received adequate advance notice of the scheduled hearing. As such, the Veteran's accredited service representative was asked to clarify whether the Veteran continued to desire a hearing on the current claims. The Veteran indicated that he wished to proceed without a personal hearing. Informal hearing presentation, February 2010. Accordingly, this Veteran's request for a hearing is considered withdrawn. The Board additionally notes that during the course of the present appeal the Veteran has submitted private medical evidence regarding hearing loss and tinnitus, as well as lay evidence regarding in-service noise exposure. In correspondence dated in March 2009, the RO contacted the Veteran to clarify if it was his intent to file a claim for compensation regarding these conditions. No response from the Veteran is of record. If the Veteran wishes to pursue a claim for service connection for hearing loss and tinnitus, he is encouraged to notify his accredited service representative or his local VA office. FINDING OF FACT Current diagnoses of skin, bone marrow, peripheral neuropathy, respiratory or liver disabilities are not of record. CONCLUSIONS OF LAW 1. A skin condition was not incurred or aggravated in the Veteran's active duty service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. A bone marrow condition was not incurred or aggravated in the Veteran's active duty service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 3. Peripheral neuropathy was not incurred or aggravated in the Veteran's active duty service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 4. A respiratory condition was not incurred or aggravated in the Veteran's active duty service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 5. A liver condition was not incurred or aggravated in the Veteran's active duty service; nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist 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. 2009); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2009). In correspondence dated in March 2006, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159(b) (2009). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection for peripheral neuropathy and conditions of the skin, bone marrow, liver and respiratory system, as well as information and evidence that VA would seek to provide, and that which the Veteran was expected to provide in support of his claims. The Veteran was further notified of the process by which initial disability ratings and effective dates are established. This pre-adjudicatory notice fully complies with applicable regulations and case law. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also assisted the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2009). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. With the exception of an Agent Orange Registry examination, the Veteran has stated that he does not receive treatment at VA facilities, but instead sees an unidentified private practitioner. The Veteran has submitted private diagnostic imaging reports but has not requested VA assistance in obtaining any other private medical records. During a Decision Review Officer (DRO) Conference in December 2008, the Veteran again reported receiving private treatment and was granted an additional 60 days to submit medical evidence from his private doctor. The Veteran then submitted a January 2009 audiological assessment that is unrelated to the issues presently on appeal. There is no indication that the Veteran has provided sufficient information to identify and locate any existing private medical records, and has not authorized VA to seek private medical records on his behalf. In the absence of such information, VA cannot act on its own to obtain private medical evidence. See 38 C.F.R. § 3.159(c)(1)(i-ii) (2009). The veteran is reminded that the "duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran has not been provided with a VA Compensation & Pension examination. However, one is not required in this case. VA is only required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). In this case, there is no competent lay or medical evidence of a currently disability pertinent to the instant claims. In the absence of such evidence, there is no duty to provide a VA medical exam or further medical opinion. See 38 C.F.R. § 3.159(c)(4). In all, the duty to assist has been fulfilled. Service Connection The Veteran seeks service connection for peripheral neuropathy and conditions of the skin, bone marrow, liver and respiratory system, which he contends are attributable to his military service. In order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (holding that the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed). In the present case, the Board has reviewed the Veteran's service treatment records and lay statements, but finds no evidence of an in-service incurrence or aggravation of a claimed disease or injury. The service treatment records contain numerous notations of colds, sore throats, viral infection, athletic injuries and musculoskeletal complaints among others, but do not record complaints or treatment for peripheral neuropathy, skin, bone marrow, liver, chronic respiratory problems. Furthermore, as discussed below, there is no credible evidence to show that a claimed disability presently exists. As such, service connection on a direct basis is not warranted. 38 C.F.R. § 3.303. In addition, the Veteran primarily asserts that the claimed conditions are due to exposure to tactical herbicide agents, commonly referred to as "Agent Orange," while stationed in the Republic of Vietnam. See, e.g., Notice of disagreement, June 2007. Regulations state that a veteran who, during active military, naval, or air service, served in Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an 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) (West 2002 & Supp. 2009). Service personnel records confirm that this Veteran was stationed in Vietnam from May 1966 to May 1967 and from September 1968 to April 1970. See DD Form 214. Therefore, he is presumed to have been exposed. However, both direct and presumptive theories of entitlement to service connection require evidence of a current disability before service connection may be granted. 38 C.F.R. §§ 3.303, 3.307 (2009). To be clear, although presumptive service connection may be warranted for certain disabilities where a veteran had qualifying service in the Republic of Vietnam, service connection by this means still requires credible evidence that demonstrates a current medical diagnosis of the claimed disabilities, or competent lay evidence of observable symptomatology that has generally manifested to a degree of 10 percent of more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2009). In the present case, the record simply does not establish a current clinical diagnosis of any of the claimed conditions, and the Veteran has not submitted competent and credible lay evidence to demonstrate the existence of any claimed disability. Instead, upon an Agent Orange registry examination in December 2005, the only clinical findings were a cataract in the left eye and abnormal laboratory results, for which the Veteran was encouraged to enroll in a VA primary care clinic or follow-up with his private physician. The Veteran later submitted diagnostic imaging reports from a private hospital, but these too fail to show a currently existing skin, bone marrow, respiratory, liver, or peripheral neuropathy disability. In contrast, an April 2006 computed tomography (CT) scan states that the liver is found to be normal. The overall impression was of a normal abdomen and pelvis. A March 2006 chest x-ray for bronchitis found suggestion of some lung field hyperexpansion "which may indicate a component of chronic obstructive pulmonary disease." However, no active parenchymal and/or pleural disease was found and there was no acute cardiopulmonary pathology evident. Private diagnostic imaging reports, March & April 2006. In the absence of other supporting evidence, the Board finds the language used in the March 2006 x-ray report to be inconclusive as to an actual existing respiratory disability, based upon the ambiguity and uncertainty inherent in words such as "suggestion," "some," "may indicate," and "a component of." At this time, the record is not found to contain competent evidence of a confirmed clinical diagnosis of chronic obstructive pulmonary disease (COPD) or any other respiratory disorder. Congress has specifically limited entitlement to VA compensation for service-connected disease or injury to cases where incidents have resulted in a disability. In the absence of credible proof of a present skin, bone marrow, peripheral neuropathy, respiratory or liver disability there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges and appreciates the Veteran's lengthy and distinguished military service. However, entitlement to service connection is generally prefaced on formal diagnoses. As one is not of record for the claimed disabilities, and the Veteran has not presented competent and credible lay evidence thereof, service connection is not warranted. As the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt provision does not apply and service connection must be denied. ORDER Service connection for a skin condition, to include as a result of exposure to herbicides, is denied. Service connection for a bone marrow condition, to include as a result of exposure to herbicides, is denied. Service connection for peripheral neuropathy, to include as a result of exposure to herbicides, is denied. Service connection for a respiratory condition, to include as a result of exposure to herbicides, is denied. Service connection for a liver condition, to include as a result of exposure to herbicides, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs