Citation Nr: 1030965 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 06-27 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected post traumatic stress disorder (PTSD). 2. Entitlement to service connection for villous adenoma of the colon, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in December 2005 and March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to service connection for hypertension is addressed in the REMAND that follows the order section of this decision. FINDING OF FACT The Veteran's villous adenoma was not present until many years following his discharge from service and is not etiologically related to service. CONCLUSION OF LAW Villous adenoma was not incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), 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. Additionally, 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 Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C.A. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." 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). In this case, the record reflects that the Veteran was provided VCAA notice, by letter mailed in August 2005, prior to the initial adjudication of the claim. Although the Veteran was not provided notice with respect to the disability rating or effective date element of his claim until March 2006, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for the Veteran's villous adenoma of the colon. Consequently, no disability rating or effective date will be assigned, so the failure to provide earlier notice with respect to those elements of the claim is no more than harmless error. The record also reflects that all pertinent evidence identified by the Veteran has been obtained. The Board acknowledges that the Veteran has not been afforded a VA examination and that no VA medical opinion has been obtained in response to the Veteran's claim. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service- connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran contends that service connection is warranted for the villous adenoma because it is the result of his exposure to herbicides in service. Because he served in Vietnam, his exposure to herbicides is presumed. The record also contains competent evidence of the post-service presence of the disability. However, his villous adenoma is not is subject to service connection on a presumptive basis, and there is no competent evidence indicating that the disability may be associated with the Veteran's exposure to herbicides or otherwise associated with his active service or a service-connected disability. Therefore, VA is not obliged to afford the Veteran a VA examination or obtain a medical opinion. In sum, the Board is satisfied that any procedural errors in the RO 's development and consideration of this claim were harmless. Therefore, the Board will address the merits of the claim. Legal Criteria Entitlement to service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). 38 U.S.C.A. § 1116(a) provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service- connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991 [note to this section], and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. 38 U.S.C.A. § 1116(b)(2). An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against the association. 38 U.S.C.A. § 1116(b)(3). Villous adenoma is not among the diseases specified in 38 U.S.C.A. § 1116(a). In addition, the Secretary has not determined, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of villous adenomas in humans. See 38 C.F.R. § 3.309(e). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); 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 As noted above Veteran contends that his villous adenoma developed as a result of his in-service exposure to Agent Orange. The record reflects and the Veteran does not dispute that this disability was not present until many years following his discharge from service. While the Veteran might sincerely believe that the disability was caused by his in-service exposure to herbicides, as a lay person he is not competent to answer this medical question. In addition, it has not been added to the list of presumptive diseases because the Secretary has not determined, on the basis of sound medical and scientific evidence, that a positive association exists between herbicide exposure and the occurrence of villous adenomas in humans. Moreover, the Veteran has not submitted any competent evidence supporting the proposition that this disability is etiologically related to his exposure to herbicides. Therefore, the Board must conclude that the preponderance of the evidence is against this claim. ORDER Service connection for villous adenoma is denied. REMAND The Veteran contends that he has hypertension related to his active service. Alternatively, he asserts that his hypertension was caused or aggravated by his service-connected PTSD. A May 2005 letter from D.L., M.D., states that the Veteran had a history of significant Agent Orange exposure and that he believed there was a relationship between his Agent Orange exposure and his hypertension. A May 2005 private treatment record indicates that the Veteran's underlying mental challenges as well as possibly an element of Agent Orange exposure played a role in making the hypertension challenging to treat. In light of this competent evidence indicating that the Veteran's hypertension may be related to his active service or service- connected disability, the Board has determined that the Veteran should be afforded a VA examination to determine the etiology of his hypertension. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The Veteran should be afforded a VA examination by a physician with appropriate expertise to determine the etiology of the Veteran's hypertension. The claims file must be provided to and reviewed by the examiner. Based upon the review of the claims folder and the examination results, the examiner should provide an opinion as to whether there is a 50% or higher degree of probability that the Veteran's hypertension is etiologically related to his active service, to include exposure to Agent Orange, or was caused or permanently worsened by his service-connected PTSD. 2. The RO /AMC should also undertake any other development it determines to be warranted. 3. Then, the RO/AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a Supplemental Statement of the Case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter 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). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs