Citation Nr: 1014402 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 09-00 111A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for Hodgkin's disease, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In June 2009 the Veteran testified in a hearing before the RO's Decision Review Officer (DRO). A transcript of that testimony is associated with the claims file. The issue of service connection for a psychiatric disorder is addressed in the Remand that follows the Order section of this decision. FINDINGS OF FACT 1. The Veteran is not shown to have been exposed to herbicides during service. 2. Hodgkin's disease was not present until more than one year following the Veteran's discharge from service and is not etiologically related to service. CONCLUSION OF LAW Hodgkin's disease was not incurred in or aggravated by active service, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for Hodgkin's disease. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2008), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided the required notice, to include the effective-date and disability rating elements, in a letter in February 2007. The Veteran had ample opportunity to respond prior to issuance of the rating decision in November 2007. The Board also finds that VA has complied with its duty to assist the Veteran in the development of the claims herein decided. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. The Veteran has not been afforded a VA examination in regard to the claimed Hodgkin's disease. However, the Veteran has not presented a prima facie case for service connection for the disorder, so remand for VA examination is not required at this point. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). The Board acknowledges that a veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service and thus trigger a requirement for medical examination; see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, however, the Veteran has not asserted continued symptomology, and the record shows the disease became manifest nearly 30 years after discharge from service. Accordingly, McLendon does not apply. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and not prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests Hodgkin's disease to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. There is a rebuttable presumption of exposure to herbicides if claimant served in Vietnam, even if there is no record of treatment in service. 38 U.S.C.A. §§ 1113, 1116; 38 C.F.R. § 3.307. "Service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation to Vietnam. 38 C.F.R. § 3.313. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis STR show no indication of Hodgkin's disease or symptoms later associated with such disease during service, and there is no indication the disorder became manifest within the first year after service. Review of the file shows Hodgkin's disease was identified in 1999, 29 years after his discharge from service. Accordingly, presumptive service connection under 38 C.F.R. § 3.309(a) is not warranted. The Veteran attributes his Hodgkin's disease to exposure to herbicides during service. Hodgkin's disease is a disorder for which the Secretary has established presumptive causation if a Veteran was exposed to herbicides; see 38 C.F.R. § 3.309(e). However, before the presumption can be established the Board must determine whether the Veteran was exposed to herbicides during service. There is presumption of exposure to herbicides for servicemembers who served in the Republic of Vietnam during the period beginning on February 28, 1961 and ending on May 7, 1975. However, the Veteran does not assert, and the record does not show, that he served anywhere overseas, including the Republic of Vietnam. Accordingly, the presumption of exposure does not apply. Notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure 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). In this case, the Veteran contends that he was exposed to Agent Orange while performing guard duties at Lakehurst Naval Air Station, New Jersey. The Veteran asserts that he had to guard various supplies, including 55-gallon drums of a liquid he later found out was Agent Orange. The Veteran asserts the drums would occasionally leak, and he would have to clean up the leakage without the benefit of protective garments. However, the Veteran cannot recall the color of the drums in question, or the markings thereon. The Veteran learned after discharge from service, in conversation with a Navy pilot, that Lakehurst had been a staging area for nuclear and chemical weapons. (See DRO Hearing Transcript, pages 14-18.) VA has established a list of locations other than the Republic of Vietnam in which Agent Orange or other herbicides were known to be used or stored, within specific timeframes; Lakehurst Naval Air Station is not listed. Accordingly, the burden is on the Veteran to demonstrate that he was actually exposed to Agent Orange at that location, but this he has failed to do. The Veteran is competent to report his activities in service, including standing guard and including mopping up liquids. However, the Veteran admits he did not know the nature of the liquid he was handling at the time, and was only advised during informal conversation with an anonymous and unofficial source that it may have been Agent Orange. Accordingly, without casting aspersions on the Veteran's sincerity, the Board finds he is not competent to report that he was actually exposed to Agent Orange or other herbicide at Lakehurst Air Station. The Veteran has asserted that he informed a number of physicians about having been made to clean up Agent Orange in service, and that those physicians had attributed his Hodgkin's disease to such exposure. (See VA Form 21-4142 dated in February 2007.) However, careful review of the private treatment records associated with the file does not show any medical opinion relating Hodgkin's disease to active service; the Board notes in this regard that hearsay medical evidence does not constitute competent medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); Warren v. Brown, 6 Vet. App. 4 (1993). ("What a physician said, and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence." Robinette, 8 Vet. App. at 77 (1995)). In sum, the Veteran has shown medical evidence of diagnosed Hodgkin's disease; accordingly, the first element of service connection is met. However, evidence of a present condition is generally not relevant to a claim for service connection, absent some competent linkage to military service. Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992). A veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In this case, there is no competent evidence of such an etiological connection, and no presumptive basis on which to find such a connection. Based on the medical and lay evidence above the Board finds the criteria for service connection are not met. Accordingly, the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. ORDER Service connection for Hodgkin's disease is denied. REMAND The RO denied service connection for PTSD because there was no evidence of diagnosed PTSD and no verified stressor. However, VA treatment records dated in 2007 show a clinical diagnosis of PTSD. Also, the Veteran's claimed stressor is that he was subjected to a series of beatings by non- commissioned officers, but the record does not indicate the Veteran has been advised of the alternative sources for evidence of stressors in a personal assault case, in compliance with the current provisions of 38 C.F.R. § 3.304(f)(3). Also, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court found that an appellant's claim for service connection PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose, "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. In accordance with Clemons, the Board has concluded that the Veteran is seeking service connection for psychiatric disability, variously diagnosed. On remand, the RO should address whether service connection is warranted for any psychiatric disability other than PTSD. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO must provide the Veteran with notice of the PTSD stressor evidence appropriate to cases in which the alleged stressor relates to an in- service physical assault, in accordance with 38 C.F.R. § 3.304(f)(3) and M21-1, Part III, par. 5.14d, Exhibits B-10 and B-11. The letter(s) to the Veteran, and any response, should be incorporated into the claims file. 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. The RO should particularly obtain up-to-date treatment records from VA or any other providers identified by the Veteran. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, of the efforts that were made to obtain them, and describe the further action to be taken. 3. On completion of the stressor development noted above, the RO should arrange for the veteran to undergo psychiatric examination by an appropriate examiner at an appropriate VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the report of examination should include discussion of the Veteran's documented psychosocial history and assertions. All tests and studies, to include psychological testing if deemed warranted, should be accomplished, and all clinical findings should be reported in detail. The examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has a psychiatric disability, to include PTSD, as a result of his military service. The examiner should explain how the diagnostic criteria are met. If the examiner diagnoses PTSD, he or she should comment upon the link between any verified in-service stressor(s) and the diagnosed PTSD. The examiner is reminded that when the claimed stressor is physical assault in service, credible supporting evidence may consist of a medical opinion, based on review of the evidence, that the personal assault occurred; see 38 C.F.R. § 3.304(f)(3). Accordingly, if the examiner associates current PTSD with physical assault during service, the examiner should specifically indicate whether the Veteran's account of such assault is credible. The rationale for all opinions expressed should be provided. 4. To help avoid any future remand, the RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is undertaken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any other development deemed appropriate, the RO should readjudicate the claim for service connection for a psychiatric disorder, to include PTSD. If the benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental SOC (SSOC) that includes citation to and discussion of any additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them the appropriate time for response. Thereafter, the file should be returned to the Board as appropriate for further appellate review. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran unless he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. 2009). ______________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs