Citation Nr: 1140331 Decision Date: 10/31/11 Archive Date: 11/07/11 DOCKET NO. 09-38 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for thrombotic thrombocytopenic purpura (TTP) (claimed as a mild form of leukemia) to include as due to exposure to herbicides in service. 2. Entitlement to service connection for an acquired psychiatric disorder to include as secondary to TTP. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from August 1973 to August 1977 and again from January 1991 to March 1991. Service personnel records show that he had approximately 11 months of foreign service and the Veteran contends that this service was at Korat Air Force Base, Thailand in 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned at a Travel Board hearing in July 2011. A transcript of this proceeding has been associated with the claims file. The Board notes that, initially, the RO adjudicated the TTP and leukemia claims separately and the Veteran only perfected an appeal with regard to the leukemia claim. However, during the July 2011 Travel Board hearing the Veteran testified that his claim for leukemia encompassed his claim for TTP, noting that he had a mild form of leukemia which was called TTP. Thus, the Board has recharacterized the issue as entitlement to service connection for TTP (claimed as a mild form of leukemia). Also, the Veteran originally filed a claim of entitlement to service connection for depression and anxiety. However, the medical evidence includes diagnoses of depression, anxiety, and posttraumatic stress disorder (PTSD). Thus, the Board has characterized the issue to reflect a broad definition of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him). FINDINGS OF FACT 1. The record does not show and the Veteran does not contend that he served in either Vietnam or Korea during the Vietnam era. Rather, the Veteran contends that he served in Thailand. 2. A preponderance of the evidence is against a finding that the Veteran was exposed to herbicides in service. 3. There is no evidence of TTP in service, or within one year after service, and no competent medical evidence linking the Veteran's TTP with his period of service, to include the alleged exposure to herbicide agents. 4. There is no evidence of an acquired psychiatric disorder during military service, or within one year after service, and no competent medical evidence linking the Veteran's current acquired psychiatric disorder with his military service to include a service-connected disorder. CONCLUSIONS OF LAW 1. Service connection for TTP (claimed as a mild form of leukemia) is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307 (2011). 2. Service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his TTP (claimed as a mild form of leukemia) is related to his service with the United States Air Force from August 1973 to August 1977 and again from January 1991 to March 1991. Specifically, he contends that he was exposed to Agent Orange while in service which has resulted in the claimed disability. The Veteran also contends that he suffers from an acquired psychiatric disorder secondary to his TTP. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, certain chronic diseases may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more than one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder 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 period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain specified disorders. 38 C.F.R. § 3.309(e). "Service in the Republic of Vietnam," includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Also, the Department of Defense (DoD) has indicated that the herbicide Agent Orange had been used in Korea, and Agent Orange was used from April 1968 through July 1969 along the DMZ. See, e.g., VHA Directive 2000-027 (September 5, 2000). DoD defoliated the fields of fire between the front line defensive positions and the south barrier fence. The size of the treated area was a strip of lane 151 miles long and up to 350 yards wide from the fence to the north of the "civilian control line." There is no indication that herbicide was sprayed in the DMZ itself. Herbicides were applied through hand spraying and by hand distribution of palletized herbicides. Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that effects of spraying were observed as far as 200 meters down wind. Units in the area during the period of use of herbicide were as follows: 1-38 Infantry, 2-38 Infantry, 1-23 Infantry, 2-23 Infantry, 3-23 Infantry, 3-32 Infantry, 109th Infantry, 209th Infantry, 1-72 Armor, 2-72 Armor, 4-7th Cavalry, 1-17th Infantry, 2-17th Infantry, 1-73 Armor, and 2-10th Cavalry. See VA Internal Document, "Veteran Service Center Manager Call - Policy Staff Items," March 2003. Analysis The Veteran's service treatment records are negative for either TTP or a psychiatric disorder. Significantly, examination reports dated in July 1973, November 1981, June 1984, April 1987, and March 1992 show normal psychiatric, endocrine, eyes, and skin systems. Also, in Reports of Medical History dated in July 1973, November 1981, June 1984, April 1987, March 1988, March 1991, and March 1992 the Veteran denied "depression or excessive worry," "nervous trouble of any sort," "skin diseases," "eye trouble," "frequent or severe headaches," and "dizziness or fainting spells." Post-service private treatment records show that the Veteran was diagnosed with TTP in August 2006. Post-service VA treatment records also show treatment for psychiatric disorders beginning in April 2005. Significantly, these treatment records show assessments of PTSD, depression, and anxiety secondary to the Veteran's medical conditions. In a June 2008 statement the Veteran wrote that he was exposed to herbicides while stationed at Korat Air Force Base, Thailand in 1975. He indicated that he repaired jet engines and after burners on F6-F4 fighter aircraft which routinely made runs to Vietnam dropping herbicides and dioxin throughout the area. The Veteran indicated that members of his unit experienced mild reactions to their herbicide exposure during service such as rashes, headaches, and blurred vision which required minimal medication. These symptoms reoccurred for the Veteran after service, while working for the United States Department of Agriculture (USDA) as a laboratory technician but were controlled by medication. In September 2005, the Veteran had his first seizure and was later diagnosed with TTD. During the monitoring period from July 2005 to September 2005 and again from January 2006 to March 2006 the Veteran reportedly had the highest ratings of exposure to radiation through his employment with the USDA. Thereafter, the Veteran received a medical disability retirement through the USDA. In the June 2008 statement the Veteran contended that his repeated exposure to ionizing radiation (while working at the USDA) along with his "possible" exposure to herbicides during service led to his TTD which destroyed his immune system causing uncontrollable seizures, loss of cognitive ability, endurance, increased distractibility and processing of organizational skills/thoughts. This, in turn, led to him losing his job and his various psychiatric disorders. During the July 2011 Travel Board hearing the Veteran reiterated most of the above. 1. TTP The Board finds that the preponderance of the evidence is against the claim of service connection for TTP on a presumptive basis. 38 U.S.C.A. § 5107(b). First, there is no evidence of TTP within one year of service. 38 C.F.R. § 3.307(a)(3). The earliest evidence of TTP is a private medical record dated in August 2006 which shows that the Veteran was first diagnosed with TTP in August 2006, approximately 15 years after his second period of service and 29 years after his first period of service. Second, there is no evidence that he actually served in Vietnam from January 1962 to May 1975 or along the DMZ in Korea from April 1968 through July 1969. While the RO has not verified where the Veteran served during his 11 months of foreign service, the Veteran does not contend that he served in Vietnam, rather he contends that he served in Thailand. Finally, even if the Veteran were presumed to have been exposed to herbicides during his military service, the Board observes that the Veteran has not been diagnosed with a disorder for which a presumption based on herbicide exposure is warranted under 38 C.F.R. § 3.309(e). While chronic lymphocytic leukemia (CLL) is included in 38 C.F.R. § 3.309(e), there is no indication that the Veteran has been diagnosed with CLL. Thus, the Veteran is not entitled to the presumption under 38 C.F.R. § 3.307. The Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to herbicide exposure. Brock v. Brown, 10 Vet. App. 155 (1997). The claim is also denied on a direct basis. First, there is no evidence of TTP in service. As above, all service examinations showed a normal endocrine system. Furthermore, there is no diagnosis of TTP until August 2006, approximately 15 years after his second period of service and 29 years after his first period of service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, there is no medical evidence in the record that links the Veteran's TTP to an incident of the Veteran's active military service. It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, however, any statements as to continuous rashes, headaches, or blurred vision since service are not found to be persuasive in light of the fact that the Veteran denied problems upon separation and did not complain of these problems until over one decade following discharge. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); see also Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). For these reasons, continuity of symptomatology has not here been established, either through the medical evidence or through the Veteran's statements and testimony. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for TTP. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 2. Acquired psychiatric disorder The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disorder to include as secondary to a service-connected disorder. There is no evidence of psychiatric problems in service, and no indication of psychiatric problems until April 2005, approximately 14 years after his second period of service and 28 years after his first period of service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). There also is no medical evidence in the record that links the Veteran's acquired psychiatric disorder to any incident of the Veteran's active military service, to include a service-connected disorder. While it appears that the Veteran's acquired psychiatric disorder might be related to his TTP, service connection TTP is not in effect. Therefore, service connection for an acquired psychiatric disorder on a secondary basis is not warranted. See 38 C.F.R. § 3.310. 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). The RO provided the appellant pre-adjudication notice by letters dated in June and July 2008. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board. 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. The Veteran has not been given a VA examination in connection with the claims addressed above. VA need not conduct an examination with respect to the service connection claims decided herein because the information and evidence of record contains sufficient competent medical evidence to decide the claim. There is no competent evidence that suggests a causal link between the claimed disorders and any incident of active duty or that the conditions may be associated with the Veteran's service. Indeed, in view of the 14 to 29 year gap between the claimed disorders and active duty, relating these disorders to the Veteran's military service would be entirely speculative. Therefore, there is no duty to provide an examination or a medical opinion. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) 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. ORDER Service connection for TTP is denied. Service connection for an acquired psychiatric disorder is denied. ____________________________________________ D.C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs