Citation Nr: 1031950 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 04-41 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for gum disease, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amy M. Smith INTRODUCTION The Veteran served on active duty from July 1970 to January 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating action of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida, which, in addition to the issues set forth above, denied service connection for diabetic neuropathy, erectile dysfunction, and an eye disorder. In a November 2007 decision, the Board denied service connection for erectile dysfunction. In a March 2007 rating decision, the RO granted service connection for peripheral neuropathy of all four extremities, thereby granting in full the Veteran's claim of entitlement to service connection for diabetic neuropathy. The Veteran was issued a statement of the case in March 2007 addressing the issue of service connection for an eye disorder, to include diabetic retinopathy. However, the record reflects that the Veteran did not subsequently file a Substantive Appeal (VA Form 9 or other correspondence containing the necessary information). Thus, there has been no appeal perfected as to the eye disorder claim. In the absence of a timely perfected appeal, the Board has no jurisdiction to address that claim. 38 C.F.R. §§ 20.200, 20.202, 20.302 (2009). The Veteran presented testimony at a Travel Board hearing in July 2007. However, the Veterans Law Judge who conducted that hearing is no longer employed at the Board. In a May 2010 letter, the Veteran was notified of his right to request another hearing before the Board, but he did not respond. The issue of entitlement to service connection for PTSD 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. FINDING OF FACT The Veteran does not have gum disease related to his active military service or his service-connected type II diabetes mellitus. CONCLUSION OF LAW Service connection for gum disease is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2009); 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) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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). Proper VCAA notice 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; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case or supplemental statement of the case. The foregoing notice requirements were satisfied by July 2003 and February 2005 letters, the latter of which notified the Veteran of the information and evidence necessary to substantiate his claim on a secondary basis. In addition to those letters, the September 2004 statement of the case and March 2007 supplemental statement of the case was issued, which provided the Veteran additional time to submit more evidence. The Veteran was informed of the law and regulations governing the assignment of disability ratings and effective dates in a May 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Also, the Board finds that the duty to assist provisions of the VCAA have been met in this case. All relevant treatment records adequately identified by the Veteran have been obtained and associated with the claims file. Neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In this regard, the Board notes that during his July 2007 Travel Board hearing, the Veteran reported private periodontal treatment dating back to 1986 (T-20). In November 2007, in accordance with the Board's November 2007 remand, the RO sent the Veteran a letter requesting that he identify the sources of treatment for his claimed gum disease. The Veteran did not respond. The Veteran is responsible for providing pertinent evidence in her possession. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) & Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (in which the Court held that VA's duty to assist is not a one-way street and that, if a Veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. A remand to accord the Veteran another opportunity to provide the names, dates, and locations of post-service periodontal treatment is not necessary. The Board acknowledges that the Veteran has not been accorded a VA examination pertinent to the claim on appeal. However, as will be discussed in the following decision, service medical records are silent for complaints of, treatment for, or findings of any periodontal problems. Further, available post-service medical records do not include a diagnosis of gum disease. Thus, a remand to accord the Veteran an opportunity to undergo VA examinations that specifically address the etiology of the claimed gum disease is not necessary. VA's duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." Charles v. Principi, 16 Vet. App. 370 (2002) & 38 U.S.C.A. § 5103A(a)(2). See also & McLendon v. Nicholson, 20 Vet. App. 79 (2006). Standard Of Review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." 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. General Laws And Regulations Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. § 1110. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown to be present. 38 U.S.C.A. § 1110. The Court has interpreted the requirement of current disability thus: Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment in accordance with 38 C.F.R. § 17.161. 38 C.F.R. § 3.381. In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay testimony is competent 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); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu v. Derwinski, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Analysis The Veteran does not assert, and the service treatment records do not reflect, that he had any periodontal problems during active military service. Instead, he contends that he developed gum disease as a result of his service-connected type II diabetes mellitus. Importantly, however, post-service medical records also do not reflect any findings or treatment for periodontal disease. While the Veteran is competent to report gum-related symptoms, he does not possess the medical knowledge and training necessary to express an opinion as to medical diagnoses or causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In the absence of competent proof of a present disability, there can be no valid claim, and the appeal must be denied. Brammer. ORDER Service connection for gum disease is denied. REMAND The Veteran contends that his currently-shown PTSD is the result of experiences while serving in Vietnam. The record reflects that the Veteran served in Vietnam from December 1970 to November 1971. He was assigned to the Headquarters, 3rd Ordinance Batallion APO 96491, with a primary military occupational specialty of Clerk Typist. VA treatment records reveal an October 2003 diagnosis of PTSD. The Veteran has identified various stressors during the course of this appeal, including: (1) witnessing a Vietnamese Army truck hit a mine outside of Long Binh in February 1971 (T-10), (2) witnessing a Vietnamese officer shoot two Viet Cong (T-13), (3) being in a bunker while shots/tracers were fired around him (T- 14, 15), and (4) experiencing Viet Cong attempt to enter the perimeter of his base on multiple occasions (T-14). As part of its November 2007 remand, the Board directed the RO to undertake additional stressor verification efforts, and to arrange for a VA PTSD examination if any of the reported stressors were verified. The record reflects that the RO was unable to verify the Veteran's stressors, and as such, no VA examination was conducted. However, VA very recently amended its adjudication regulations governing service connection for PTSD by liberalizing in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amended 38 C.F.R. § 3.304(f), by redesignating current paragraph (f)(3) and (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist or a psychiatrist or psychologist with who VA has contracted; confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f) as amended 75 Fed. Reg. 39843 (July 13, 2010). While effective on July 13, 2010, this final rule applies to an application for service connection for PTSD that was appealed to the Board before July 12, 2010 but has not been decided by the Board as of that date. Based on the above referenced changes made to 38 C.F.R. § 3.304(f) and the Veteran's claimed in-service stressors, the Board finds that the Veteran should be accorded an opportunity to undergo a VA PTSD examination. Accordingly, the case is REMANDED for the following action: 1. Scheduled the Veteran for a VA PTSD examination. The claims file should be made available to the examiner in conjunction with the examination, and the examination report should specifically state that such a review was conducted. All indicated tests and studies should be accomplished and the findings then reported in detail. Additionally, the examiner should be asked to confirm whether any claimed in-service stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor. The specific stressor or stressors supporting such a diagnosis should be identified. A complete rationale should be provided for all opinions expressed. If the physician determines that a medically- sound conclusion cannot be reached, it is requested that an explanation as to why such a conclusion is not possible be included. 2. After the development requested above has been completed, the RO should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board for its consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 or by Court 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs