Citation Nr: 1038428 Decision Date: 10/13/10 Archive Date: 10/22/10 DOCKET NO. 99-09 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection of posttraumatic stress disorder (PTSD). 2. Entitlement to service connection of hepatitis C. 3. Entitlement to service connection of diabetes mellitus type II (diabetes). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from April 1968 to March 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. A hearing before the undersigned Acting Veterans Law Judge was held at the RO in August 2007. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD as a result of a verified in-service stressor. 2. Hepatitis C was not incurred in service and is not otherwise causally related to service. 3. The Veteran was not within the land boundaries of Vietnam during service. 4. Diabetes was not incurred in service or within a year of separation from service and is not causally related to service. CONCLUSIONS OF LAW 1. The criteria for service connection of PTSD have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002) 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2010). 2. The criteria for service connection of hepatitis C have not been met. 38 U.S.C.A § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). 3. The criteria for service connection for diabetes are not met. 38 U.S.C.A. §§ 1110, 1112, 1116 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the claim of service connection of PTSD, the decision below grants service connection of PTSD. As such, there is no further need to discuss compliance with the duties to notify and assist for this issue. With regard to the claims of service connection of hepatitis C and diabetes, in November 2001, the agency of original jurisdiction (AOJ) sent a letter to the Veteran providing the notice then required. Although the letter did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, this notice was provided via a March 2007 letter, after which the claims were readjudicated in an October 2009 Supplemental Statement of the Case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment and personnel records, attempted to verify whether the appellant was in Vietnam, assisted the appellant in obtaining evidence, afforded the appellant physical examination and obtained medical opinions as to the etiology and severity of the hepatitis C, and afforded the appellant the opportunity to give testimony before the Board. The Board notes that a VA examination was not conducted on the claim of service connection for diabetes. Such development is to be considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In this case there is sufficient competent medical to decide the claim. The Board further notes that there is no evidence that the Veteran experienced an event, injury or disease in service related to diabetes mellitus, there is no evidence that he experienced diabetes mellitus until many years after discharge from service, and there is no evidence that the Veteran's diabetes mellitus may be associated with service or a service- connected disability. Thus, a VA examination with nexus opinion is not necessary. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Service Connection Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, 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 medical evidence of a nexus between the claimed in-service disease or injury and the current disability. PTSD The Veteran contends that he has PTSD as a result of his service in Thailand during the Vietnam era. He has reported several stressors as the cause of his PTSD, to include being on base at the Udorn Air Force Base when a plane crashed, resulting in death and property destruction. See, e.g., August 2007 hearing transcript. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Where the claimed stressor is not related to combat, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence which corroborates the stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after- the- fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). A review of the Veteran's post-service medical records clearly indicates that he has been diagnosed with PTSD as a result of the reported plane crash. See April 2008 Sherwood medical statement; June 2009 VA examination record; February 2010 J.L. statement. Thus, the remaining issue is whether the reported stressor has been corroborated. The evidence includes service personnel records which document that the Veteran served at Udorn Air Force Base in Thailand from September 1969 to at least August 1960. The evidence also includes a "48 HR. Mishap Report," which documents that a plane crashed into a housing area of Udorn Royal Thai Air Force Base, resulting in the survival of the pilots but the deaths of nine people and the destruction of nine buildings and one trailer, and a statement from G.H., who context suggests was a military colleague, corroborating the crash. The Board notes that some of the details the Veteran has provided about the crash conflict with the facts reported in the 48 HR conflict report and some of his own histories. See, e.g., January 2007 VA treatment record (Veteran reported that 75 people died as a result of the crash, including the two pilots). The Board finds that the Veteran's account of the nature of the incident (i.e. a plane crash resulted in death and property destruction) is sufficiently similar, however, and giving the Veteran the benefit of the doubt, the Board finds that the stressor has been sufficiently corroborated and that service connection for PTSD is warranted. Hepatitis C Service medical records do not contain any complaint, finding, or treatment for hepatitis C, and the January 1975 separation examination reports normal clinical findings and no histories suggestive of hepatitis C. Per the Veteran, he was first diagnosed with hepatitis C in approximately 2000. See November 2005 Grossman statement; August 2007 hearing transcript; June 2009 VA examination record. Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal drug use, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) November 30, 1998. The evidence of record documents that the Veteran was exposed to the risk factor of high risk sexual activity during and after service and intranasal drug use after service. See, e.g., January 1975 separation examination (treatment for sexually transmitted diseases during service); December 1987 HIP treatment record (history of drug use); November 1996 Vet Center record (history of promiscuous sexual activity); April 1997 VA examination record (history of drug use); and August 2007 hearing transcript (history of promiscuity). The Veteran has denied intravenous drug use, blood transfusion, or hemodialysis, and there is no evidence of accidental exposure while working as a health care worker or from tattoos, body piercings, acupuncture, or shared toothbrushes or razor blades. The Veteran contends that his hepatitis C is due to in-service exposure to Agent Orange. Initially, the Board notes that the record does not establish that the Veteran was exposed to Agent Orange in service. Even assuming the Veteran were exposed to Agent Orange during service, however, the record contains no competent evidence, such as medical studies or medical opinions, that Agent Orange can cause hepatitis C. Moreover, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 68 Fed. Reg. 27,630-41 (May 20, 2003). Hepatitis C is not one of the enumerated diseases for which service connection is presumed; thus, the Board finds that any in-service herbicide exposure did not cause the hepatitis C. Furthermore, the preponderance of the evidence does not suggest that hepatitis C is otherwise related to service, either by developing during service or being causally related to an incident in service. In this case, based on the existence of multiple risk factors during and after service and the absence of abnormal findings in service, it would be speculative to relate the Veteran's hepatitis C to an incident in service rather than a risk factor encountered outside of service. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. See also Slater v. Principi, 4 Vet. App. 43 (1993). See also July 2009 VA examination record (examiner determined that it was less likely than not that hepatitis was related to service based on absence of evidence of risk factors during service). The Board acknowledges that a private physician has opined that it "is likely that the Veteran was exposed during his tour of duty in Vietnam" and that it is "quite likely that [the Veteran] contracted hepatitis C while serving in the military" based on the Veteran's high-risk sexual activity (to include sexual encounters in which he reportedly was exposed to blood and in which there were breaks in the skin of his penis) and treatment for venereal diseases during service. See August 2005 and January 2010 Grossman statements. These opinions lack probative value, however, as the physician does not adequately explain how he determined that hepatitis C was more likely to result from the in-service high-risk sexual activity than the post-service high risk sexual activity. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008)(opinion's probative value determined by whether it is supported by a detailed rationale/explanation). Thus, the Board finds that service connection is not warranted, and the claim is denied. Diabetes The Veteran has been diagnosed with diabetes. VA regulations provide presumptive service connection for diabetes for veterans shown to be exposed to an herbicide agent during active military service. 38 C.F.R. § 3.309(e). The regulations also provide a presumption that veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, to include Agent Orange, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 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 in Vietnam. 38 C.F.R. § 3.313; see also Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008) (upholding VA's interpretation that service in Vietnam requires that a claimant have set "foot-on-land" in Vietnam). The Veteran has reported that he was exposed to herbicides during a one-month tour of duty in Vietnam. Service personnel and medical records indicate that the Veteran served in Thailand from September 1969 to approximately August 1970. The service records do not indicate that the Veteran ever set foot in Vietnam. The evidence contains no notations from medical clinics in Vietnam and no histories or administrative remarks suggestive of a temporary deployment to Vietnam. The Board notes that the Veteran's DD-214 documents that he was awarded the Vietnam Service Medal (VSM), the Republic of Vietnam Campaign Medal (RVCM), the Air Force Commendation Medal (AFCM), and the National Defense Service Medal (NDSM). These medals were not only provided to persons stationed inside Vietnam, however; they were also available to persons who served outside the geographical limits of the Republic of Vietnam but contributed direct combat support to the Republic of Vietnam and Armed Forces for 6 months. See Manual of Military Decorations and Awards, C7.5.1.6.2 (Department of Defense Manual 1348.33- M, September 1996). In this case, the Veteran's receipt of these medals coincides with his tour of duty in Thailand. The Board is not disputing the Veteran's contribution to the war effort as a valued member of the U.S. Air Force stationed in Thailand, which these awards clearly indicate, but the award of these medals does not provide verification that the Veteran was present on the ground within the boundaries of the Republic of Vietnam. To this end, the only evidence of record indicating that the Veteran served in the Republic of Vietnam are the Veteran's own statements, and the record does not contain any corroboration of this claim. The Board acknowledges that the Veteran is competent to report his duty locations. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 471 (1994). The Board does not find the Veteran's current history is credible, however, particularly in light of the lack of corroborating evidence in the service records. Thus, in-service herbicide exposure is not presumed. Service connection may still be established with proof of actual direct causation, however. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the Board finds that service connection is not warranted since the evidence does not indicate that diabetes onset in service or is causally related to service. The Veteran's service medical records do not report any diagnoses of diabetes or any symptoms indicative of diabetes, such as sugar in the urine, and post-service records indicate that the diabetes was diagnosed, at a minimum, approximately 22 years after separation. See January 1975 separation examination (urinalysis negative for sugar); June 2001 Grossman statement. See also Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000) (time elapsed prior to initial complaint can be considered as evidence against the claim.). Additionally, the evidence of record also does not contain any competent evidence linking the Veteran's diabetes to service. Thus, based on the evidence of no in-service herbicide exposure and the absence of evidence an in-service occurrence, the length of time between separation and the initial reported diagnosis, and the absence of a nexus opinion, service connection for diabetes must be denied. ORDER Service connection for PTSD is granted. Service connection for hepatitis C is denied. Service connection for diabetes is denied. ____________________________________________ Robert E. P. Jones Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs