Citation Nr: 1310136	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  10-17 209	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder.

2.  Entitlement to service connection for chronic obstructive pulmonary disease.


REPRESENTATION

Appellant represented by:	Shirley McKenion, Agent


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel






INTRODUCTION

The Veteran served on active duty from June 1967 to December 1968.  He served in Vietnam.

These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2009 of a Department of Veterans Affairs (VA), Regional Office (RO) 


FINDINGS OF FACT

1.  Posttraumatic stress disorder is not currently diagnosed.

2.  Chronic obstructive pulmonary disease is not related to service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for posttraumatic stress disorder have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, (2012). 

2.  The criteria for service connection for chronic obstructive pulmonary disease have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, (2012). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 



Duty to Notify

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  

VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre-adjudication VCAA notice by letters in May 2008 and in November 2008.  As for the content and the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). 






Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained service treatment records, VA records, and private medical records. 

The Veteran was afforded a VA examination for posttraumatic stress disorder in April 2009.  As the examination report is based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

The Veteran has not been afforded a VA examination for the claim of service connection for chronic obstructive pulmonary disease.  A VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. 38U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the threshold requirement for an examination has not been met. 

As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. 




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110. 

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 




Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) , that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f).

Unless posttraumatic stress disorder is diagnosed in service and the in-service stressor is related to service, or the in-service stressor is related to combat or to fear of hostile military or terrorist activity, or to a prisoner -of-war experience, or to a personal assault, the Veteran's lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor and the record must contain credible supporting evidence that the alleged noncombat in-service stressor actually occurred.  38 C.F.R. § 3.304(f); see Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that medical nexus evidence is required for credible supporting evidence in a personal assault case). 

Evidentiary Standards 

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a).  The Veteran does not assert that he was in combat in Vietnam, and the combat provision of 38 U.S.C.A. § 1154(b) do not apply.

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).


When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran. 38 U.S.C.A. § 5107(b).

Posttraumatic Stress Disorder (PTSD)

The Veteran contends that he has PTSD as a result of experiences in Vietnam.  The RO obtained verification of the Veteran's claimed in-stressor involving fear of hostile enemy activities.  The claim now turns on whether the Veteran has a current diagnosis of PTSD.

The service treatment records show that in December 1968, after the Veteran had separation examination in November 1968 with a normal psychiatric evaluation, the Veteran was seen for acute anxiety reaction and he was given medication. 

After service, on VA psychiatric examination in April 2009, the Veteran stated that he was given psychiatric medications while in the stockade in service, but he did not recall the reason.  The VA examiner noted that the Veteran did not report that he was in combat in Vietnam.  The Veteran spoke of his time in Vietnam easily and without avoidance of thoughts.  The Veteran denied startle response, problems with anger, or hypervigilance.  



The Veteran had no troublesome thoughts or memories of Vietnam.  The diagnoses were alcohol dependence in partial remission and history of substance abuse in full remission.  The VA examiner stated that the Veteran did not have PTSD or other psychiatric illness.

The record contains no private or VA records documenting a current diagnosis of PTSD and the Veteran is not competent to diagnose PTSD.  

In the absence of a proof of current PTSD there can be no claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

In the absence of medical evidence of a current diagnosed of PTSD, the preponderance of the evidence is against the claim and there is no doubt to be resolved and service connection is not warranted.


Chronic Obstructive Pulmonary Disease (COPD)

The service treatment records contain not compliant or finding of COPD.  On separation examination, the lungs were normal.  

After service, private medical records show treatment for bronchitis and asthma beginning in 2002.  COPD was first noted in January 2005.  In June 2008 VA records noted COPD.  The Veteran was advised to cut back on cigarettes.

The Veteran does not assert and the records does not that COPD had onset in service, rather he asserts that COPD is attributable to Agent Orange exposure.  






If a Veteran was exposed to an herbicide agent, such as Agent Orange, during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied:  Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); type 2 diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  In addition, effective August 31, 2010, VA has amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange).  75 Fed. Reg. 53202 -53216 (August 31, 2010). 

COPD is not among the listed disabilities attributable to Agent Orange exposure.  Therefore, to the extent that the Veteran may have been exposed to Agent Orange, COPD is not presumed to have resulted from that exposure.  The lack of operation of a presumption is not a bar to proving that Agent Orange caused his disability.  See Combee v. Brown, 34 F.3d 1039   (Fed. Cir. 1994).  However here the Board finds no competent evidence of record showing that COPD was actually caused by exposure to Agent Orange.  Whether such exposure caused COPD is not a question subject to the opinion of a lay person.  As it is not a question that can be answered by personal observation by a lay person.  

In the absence of competent medical evidence linking COPD to exposure to Agent Orange, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b).







ORDER

Service connection for posttraumatic stress disorder is denied.

Service connection for chronic obstructive pulmonary disease is denied.


____________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs