Citation Nr: 1312581	
Decision Date: 04/16/13    Archive Date: 05/02/13

DOCKET NO.  91-46 425	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for "disabilities" resulting from exposure to Agent Orange (herbicides).


ATTORNEY FOR THE BOARD

Matthew Blackwelder, Counsel


INTRODUCTION

The Veteran served on active duty from February 1964 to February 1966.  

This appeal initially came to the Board of Veterans' Appeals (Board) from a June 1991 rating decision, more than 22 years ago.  

In a May 1995 decision, the Board denied service connection for disabilities resulting from exposure to Agent Orange.  The Judge who initially adjudicated the case has long since retired.    

In this regard, "[e]ntitlement to service connection for 'disabilities' resulting from exposure to Agent Orange" would not be how the undersigned would customarily address this issue.  The undersigned tends to address cases based on the disability (for example, service connection for a "heart disability related to herbicide exposure").  However, as this case has been repeatedly to the Court without reference to this issue, and for other reasons cited below, the Board will address this issue as it has been effectively addressed for nearly 20 years by the Board and courts.  

The Court of Appeals for Veterans Claims (Court) affirmed the decision in March 1997; but the United States Court of Appeals for the Federal Circuit (Federal Circuit) remanded the claim in December 2000, on procedural, not substantive, grounds for review under the Veterans Claims Assistance Act, enacted in November 2000, after the Board's 1995 decision. 

The Court remanded the case to the Board in March 2001 and the Board remanded the case to the RO in September 2003.  A January 2004 supplemental statement of the case (SSOC) readjudicated the claim, once again denying service connection for disabilities resulting from Agent Orange exposure.  

In July 2006, the Board again denied the claim of entitlement to service connection for disabilities resulting from Agent Orange exposure.  The Veteran again appealed the decision to the Veterans Court.  In July 2007, the Court granted a joint motion for remand (JMR), vacating the July 2006 Board decision, and remanded the matter to the Board, which in turn remanded the claim in June 2008 for compliance with the instructions in the JMR.  

In July 2011, the Board once again denied the Veteran's claim, and he once again appealed this decision to the Court.  In June 2012, the Court vacated the Board decision and remanded the Veteran's claim for action consistent with a memorandum decision. 

In the memorandum decision, it was noted that the Veteran did not contest the denial of his pension claim, and that issue is no longer before the Board.

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.  

FINDING OF FACT

The weight of the evidence does not establish that the Veteran has any disability as a result of his presumed herbicide exposure during service. 


CONCLUSION OF LAW

The criteria for service connection for disabilities due to exposure to Agent Orange have not been met.  38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary matters

At the time of the Board's June 2008 remand to the AOJ, the Veteran was represented by an attorney, Virginia A. Girard-Brady.  In an October 2009 letter, Virginia A. Girard-Brady notified the AOJ of her withdrawal from representation of the Veteran and informed the AOJ that the a copy of the letter had been sent to the Veteran.  She has therefore withdrawn her services as a representative prior to when the appeal was certified to the Board.  38 C.F.R. § 20.608(a).  

In November 2009, the AOJ denied a claim by the Veteran of entitlement to service connection for posttraumatic stress disorder (PTSD) and, in the letter that notified him of that decision, informed him that it had no record of him appointing a service organization or representative to assist him with his claim.  The AOJ invited him to contact VA for a listing of recognized representative and informed him that Veterans service organizations could also help him with any questions.  There is no indication that the Veteran appointed a representative or requested any other assistance in finding a representative.  The Board, therefore, concludes that the Veteran is unrepresented at this point.  

The claims file is absent for evidence that the Veteran responded to the statement of the case that the AOJ issued in November 2009 with regard to the issue of entitlement to service connection for PTSD and that issue is, therefore, not before the Board as the Veteran did not perfect an appeal of it to the Board.   

In November 2009, the Veteran requested a hearing before a member of the Board to be held in Washington DC.  In April 2010, the Board sent a letter to the Veteran informing him that the hearing he requested had been scheduled and apprised him of the date and place of the hearing.  Noted in the Veterans Appeals Contact and Locator System (VACOLS) is a note that the Veteran cancelled that hearing.  Also of record is a letter received by the Board from the Veteran in May 2011, in which he stated that he no longer desires a hearing before the Board.  As such, his hearing request is considered to have been clearly withdrawn.

Service connection

In order to place the factual information and analysis in the proper context, the Board first outlines statutes, regulations and caselaw applicable to this case and then turns to an analysis of the facts of the case with application of those statutes, regulation, and cases.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  "To establish a right to compensation for a present disability, a Veteran must show:  "(1) the existence of a present disability; (2) 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."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, the following diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; Non-Hodgkin's lymphoma; Parkinson's disease, acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  See 75 Fed. Reg. 53216 (August 31, 2010) (announcing the revision to 38 C.F.R. § 3.309(e)).   

A veteran, who during active service, served in the Republic of Vietnam during the Vietnam era 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 service.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  

In the instant case, the Veteran's service records confirm that he served in the Republic of Vietnam during the Vietnam War so his exposure to herbicides such as Agent Orange is presumed.  However, exposure to a herbicide alone is not sufficient to warrant service connection, as such exposure must cause a veteran to develop a disease or disability.

The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research.  See, e.g., 68 Fed. Reg. 27,630-27,641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (January 11, 2001); 64 Fed. Reg. 59232 (November 2, 1999).

Even if the claimed disability is not on the list of diseases subject to presumptive service connection due to exposure to an herbicide agent, service connection may be established by proof that the claimed disability was actually caused by exposure to an herbicide agent during service.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Operative in this case is not whether the Veteran was exposed to Agent Orange during service but rather whether he has any of the diseases for which service connection can be presumed based on exposure to Agent Orange or any other disease shown by the evidence to have been caused by exposure to Agent Orange.  Absent a showing that he has one or more of the claimed diseases at some point between when he filed his claim and the present, service connection cannot be granted.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

It is noted that since the June 2012 Board decision, the only additional evidence that has been added is the VA Secretary's brief and an informal brief written by the Veteran.  It is noted that the Veteran's contention is that the Board had failed to take into account: "Agent Orange Veteran Certificate of enrollment (RBA), combat situation lost data infirmary treatment center..."  He added that the records did not account for his treatment in a makeshift infirmary.  The Veteran also submitted several articles about a class action lawsuit against the manufacturers of Agent Orange and his enrollment in the settlement fund.  

To be clear, it is important for the Veteran to understand that the Board at no time has denied that the Veteran was exposed to herbicides during his military service in Vietnam.  Once again, the issue is whether such presumed exposure actually caused the Veteran to subsequently develop a disease or injury related to this exposure.

When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence").  

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (explaining that competency has to do with whether the evidence may be considered by the trier of fact); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

As to some of the factors that go into making credibility determinations both the Veterans Court and the Court of Appeals for the Federal Circuit (Federal Circuit) have provided guidance.  See Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.").  These are non-exhaustive lists.  

Acknowledged by the Board is that lay evidence concerning continuity of symptoms after service is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, while the lack of contemporaneous medical records may be a fact that the Board may consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible.  Id. at 1336.  

As to non-expert (lay) opinions with regard to diagnoses or a relationship of a condition to service ("nexus"), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case.  

The Federal Circuit has explained, with regard to diagnoses, as follows:  "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer.  Id. at n.4. 

Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case.  In Davidson, the Federal Circuit drew from its earlier decision in Jandreau v. Nicholson to explain its holding.  Id.  

Taking these decisions of the Veterans Court and the Federal Circuit together, leads the Board to the conclusion that whether a non-expert nexus opinion or diagnosis is competent evidence depends on the complexity of the particular question and whether or not a nexus opinion could be rendered based on personal observation.  

Simply stated, the Veteran does not have the medical expertise to find that any of his current disabilities are related to his service from February 1964 to February 1966, more than 40 years ago, based on his exposure to herbicides.

The Veteran's Unwillingness to Attend a VA Examination

Now, the Board turns to a discussion of the facts of this case and application of the statutes, regulations, and caselaw to those facts.  

In the June 2008 remand to the AOJ, the Board instructed the AOJ to arrange for the Veteran to undergo a VA examination so that an expert opinion could be obtained on the question of whether or not the Veteran had any disabilities that were due to his presumed exposure to Agent Orange.  A document printed in November 2010 shows that the AOJ requested an examination from the Veteran's Health Administration.  

This request is annotated "Per Coach Exam Cancelled."  

A November 8, 2010 Report of General Information documents that a Veterans Service Representative telephoned the Veteran and informed him that a request had been made for a physical examination and that the VA Medical Center (VAMC) would be in contact with him.

This document also states the following:  

The Veteran claims he will never take an exam and repeatedly told me to 
"Go To Hell."

Here, entitlement to service connection cannot be confirmed without a current VA  examination because, as will be discussed, the record contains no evidence that is both competent and credible establishing that the Veteran has any disease for which service connection can be presumed based on in-service exposure to Agent Orange or that is otherwise shown to have been caused by such exposure.  The Veteran has not only failed to provide good cause for his failure to report for a VA examination, but he has told the VA representative who was scheduling the examination to "Go To Hell."  

A further remand of his case is clearly not warranted.   

In light of the fact that this case has been repeatedly returned to the Board from the Court for different reasons (not withstanding some rather atypical statements from the Veteran, as cited above) over a 20 year period, the Board believes it must be clear regarding this point: The Veteran's statement "Go To Hell" is found by the Board to clearly indicate that he will not attend a VA examination, hampering VA's efforts to assist him with his claim.  In this regard, the Board understands the Veteran's frustration in the delays in the adjudication of this case based, many times, on the application of law or Court decisions that did not exist at the time the Board addressed his claims.  

There is no factual ambiguity:  the Veteran will not attend a VA examination.   

Indeed in the June 2012 memorandum decision, the Veterans Court did not disagree with this determination.  

As his claim is an original claim, the Board must therefore determine whether service connection can be granted based upon the evidence of record.  38 C.F.R. § 3.655(b).  

Falsified Documents Submitted by the Veteran

In the joint remand, the parties instructed VA to provide an explanation as to its evaluation of documents dated in November 1984, including information in a VA Examination Report form.  In order to provide this explanation it is necessary to refer to documents filed in the context of an earlier claim for VA benefits for a nervous condition as well as the Veteran's claim for disability benefits administered by the Social Security Administration (SSA).  

Prior to his most recent refusal to report for a VA examination, the Veteran had established a long record of failing to report for other VA examinations scheduled in conjunction with his claims for VA benefits.  Furthermore, the record shows that the Veteran, or someone at his direction, has a history of filling in VA examination forms not only in the section in which the form indicates that the person being examined should provide a narrative history, but also the sections for the examining physician to provide information.  Either he, or someone at his direction, then signs the form and includes the name and specialty of a medical professional.  

Simply stated, the Veteran, either directly or indirectly, is submitting false medical evaluations of his disabilities. 

The Board points out this fact at the outset so that the Veteran understands why the Board provides details as to claims filed for disabilities other than those he alleges are due to Agent Orange/herbicides.  

The relevance of this information is that one of the documents that the parties, in their joint motion, directed the Board to consider and provide an explanation as to its consideration is an examination report that the Veteran, or someone at his direction, filled in completely, but signed as if the information was provided by actual physicians.  

The "examination report" the JMR cited to is found to be a clear fabrication by the Board.

It is noted that the memorandum decision found that a portion of the Board's explanation for why it believed the report was a fabrication was inadequate, but acknowledged that it would be doubtful that a complete examination report would exist for an examination that the Veteran was fully documented to have missed, as is clearly from this record. 

Turning to the evidence of record, VA first received a claim for VA disability compensation or pension in July 1979.  The Veteran was scheduled for a VA examination, but a note dated October 18, 1979 documented the fact that the Veteran had failed to report for the VA examination that had been scheduled for October 3, 1979.  A deferred rating decision dated October 24, 1979 provides that the Veteran's claim should be disallowed for failure to report for a VA examination and he was informed of such in a November 1979 letter.  

In a letter dated in December 1979, the Veteran informed VA that he resented his claim being denied in part due to "my failure to comply with his (a VA adjudicator) personal regulations requiring me to undergo a physical exam against (sic) my own convictions."  

In March 1980, the RO again requested a VA examination; but a note indicated that the Veteran had failed to report on either April 4 or 22, 1980.  In May 1980, the RO again requested a VA examination.  A note was contained in the Veteran's file that he failed to report for an examination on June 10, 1980.  In July 1980, the Veteran was scheduled for another examination, which he again failed to report for.  It is noted that in a report of contact from July 1980, the Veteran reportedly informed the VA point of contact that he wished to file an appeal of the denial based on his failure to have appeared for a VA examination.  The point of contact explained that a request for an examination would be more expeditious in his case, to which the Veteran stated that he had read the VA manuals and an examination was not necessary to establish his claim.  

However, of note, the Veteran was arguing that he did not need to attend a VA examination, not that he had just attended a VA examination less than six months earlier or that he had undergone a medical evaluation in the previous March.  The lack of indignation by the Veteran at this juncture severely undermines any suggestion that he had actually attended either the examination or evaluation, as he would now have the Board believe based on the submitted documents.  

The Board is of the opinion that if the Veteran had, in fact, just attended a VA examination, he would have mentioned it during this conversation when the VA representative was explaining the value of a VA examination to the Veteran's claim.  

As noted, of record is a VA Report of Medical Examination for Disability Evaluation, VA Form 21-2545.  This report is shown as being received by VA in March 1980, but is dated October 3, 1979 and purportedly signed by two physicians (although the signatures were so illegible that not a single letter could be discerned beyond the MD at the end).  

The Board finds that this form is clearly not completed by a physician, as evidenced by several entries in the form.  For example, in a section for remarks it is written "none other than disable,"  in the section for the cardiovascular system is written "all carrying vessels in good order.  Complications may be found in the duct small vessel or lymph as a result of contracting muscles," for the lymphatic and hemic system it is written "During anguish the lymphatic and hemic glands tend to sweet causing complication in the glands process of contracting."  Other examples within this report abound, but the Board believes it has made its point.

VA received a letter from the Veteran in April 1980 in which he stated that he submitted a doctor's physical and provided a full medical examination report.  

That the report submitted was completed by the Veteran or someone, other than a medical professional, at his direction is clear from the entries in the report which are clearly not stated in language characteristic of that of a medical professional, but are stated in language consistent with various statements found in the claims files that were received and signed by the Veteran himself.

The Board's suspicion that a doctor did not complete the "examination report" is validated by a note from the chief medical officer at the VA outpatient clinic from which the October 1979 VA examination report purported to have been generated.   He wrote in April 1981 that he had reviewed the examination report and found that there was no such doctor working at the facility, and he suspected that the form might be a forgery, which the Board finds at this time. 

As such, even in 1981, less than two years removed from the date on which the documents were alleged to be generated, there were sincere doubts as to the validity of the documents which the Court now asks the Board to explain why they are not considered to be "credible" evidence. 

It is also clear that the Veteran did not attend a VA examination as he specifically acknowledged so in his December 1979 letter.  He continued to argue in an August 1980 notice of disagreement that his claim should not be denied based on his failure to undergo a VA examination.  The Veteran did not mention at either of these times that he had allegedly already attended an examination, as would have been the case were the October 1979 examination report not a forgery.  Instead, he repeatedly asserted on multiple occasions in 1980 that he was not required to attend a VA examination. 

As explained further along in this decision, this is the same type of report that the JMR requested that the Board address in this decision, which the Board does at this time.  The presence of this earlier report adds weight to the Board's finding that the evidence from November 1984 was created by the Veteran (or someone at his direction) who is not a medical practitioner and therefore does not constitute competent and credible evidence in this appeal.  

The memorandum decision asserted that the Board had not explained how it determined what language is "typical" for a medical professional when describing a given disorder, adding that medical expertise is required to state that a medical expert would write a medical report in a certain way using specific language.  

Evaluating Whether the Medical Report Submitted is Fraudulent

While the Board does not necessarily consider a health care provider has any special expertise in determining whether another medical report is a fraud, the Board does not disagree with this assertion on its face, but respectfully believes that the Court has misinterpreted the Board's finding as being one medical in nature when this determination is not one that is medical in nature, but a factual finding. This is essentially a lay determination based not on the medical language and phrasing, but on the structure of the opinion, and the poor grammar and spelling contained in the fake examination reports.  The Board does not believe it requires a medical provider to explain why this medical report was not written by a doctor, particularly in light of the Veteran's efforts to submit fraudulent medical records in this case.  In any event, medical reports that are based on the Veteran's history as provided by the Veteran will not provide a basis to grant any claim, for reasons made clear in this decision.

The Board is not asserting that the medical conclusions reached in the examination report are "wrong", as this would unquestionably be a violation of the Board making a medical opinion.  The Board is not asserting, for example, that the symptoms described would not support a rendered diagnosis.  The Board is making a factual determination that the report is a counterfeit.

Rampant spelling errors and incomprehensible terms that suggest the lack of not only medical training, but also suggest the lack of aptitude for basic grammar and spelling, support a finding that this report was not written by a doctor. 

In this vein, it is noted that the Veteran also has a predilection for spelling errors, as he, for example, repeatedly spelled the word "non" as "none" in his July 1980 statement.  As such, the Board is not reaching a conclusion based on the medical language, rather it is considering the evidence of record in its entirety and concluding, as the fact finder, that the purported VA examination reports were not completed by actual VA doctors.  This conclusion was reached after reviewing the Veteran's other written statements, which consistently contained spelling and grammatical errors, as well as considering the fact that that an examination report was presented for a VA examination that was noted in the record not to have occurred on account of the Veteran's failure to report.  

The Board findings that this report is a counterfeit is also strongly validated by a note from the chief medical officer at the VA outpatient clinic from which the October 1979 VA examination report purported to have been generated.   As noted above, he wrote in April 1981 that he had reviewed the examination report and found that there was no such doctor working at the facility, and he suspected that the form might be a forgery.  

This is a medical provider finding that a medical report is suspected to be a forgery. 

Moreover, the Veteran's actual failure to ever report to a scheduled VA examination is underscored by the fact that he repeatedly argued that he did not need to attend a VA examination and clear indications that he did not attend the VA examinations on the date of the report, more facts that support the Board's conclusion that this report is a fake.  

The memorandum decision suggested that this latter point was a sufficient basis for concluding that the examination report was a fraud; but asserted that it could not find a similar basis for the document labeled "Veterans Administration Medical".  

As will be discussed below, however, this "Veterans Administration Medical" document was submitted to VA by the Veteran on the same day he submitted the fabricated examination report.  As such, if it is accepted that the VA examination report was a fabrication (as the memorandum decision did) the most logical inference would be that this "medical record" is also a fabrication, for reasons noted fully above.

In this regard, the Board must note that the U.S. Attorney's Office in New York in 1981 decline to persecute in this matter of fraud not because the Veteran was innocent, but because the Veteran did not appear to "posses all of his faculties . . .".

The SSA Findings

Records associated with the Veteran's claim for Social Security Administration (SSA) disability benefits were received by VA in September 2002 and provide that the Veteran has been under disability since 1983 for a psychotic state of unknown etiology.  There is no evidence in the SSA records that the Veteran had any disease subject to the presumption of service connection based on Agent Orange exposure or any evidence that he had any disability due to disease or injury incurred in or contracted in service.  

There is an August 1983 letter addressed to the Veteran from VA informing him that applicants for disability compensation and pension or persons receiving such benefits to undergo an examination.  It is unclear from where the information handwritten on this form arose.  It appears to be signed by a physician Dr. "S" and states "Severe nervous disorder caused by the exposure Agent Orange Mental Disble Affective [illegible]."  

Another writing from 1983, purportedly signed by a physician, Dr. "S." of the VA clinic in Tuskeegee, Alabama, provides as follows with regard to the Veteran:  

"Actute Psychosis:  Severe Mental disorder Cause by the exposure as a Viet Nam Veteran to the Chemical Agent Orange Suffered a nervous breakdown and had to be discharge for medical reason.  Mental defiencey preventing the patient from getting along with other people.  Unable to function as a productive individual.  Has no interests or personal habits, lost memory & a sever lack to make decisions.  A patient at the Veterans Administration Hospital were his treatment required hospitalization once very month 1966 - 1983.  Patient is not able to work, last work in 1965.  

An SSA form dated in September 1983 documents that a VA employee was unable to find any inpatient or outpatient file on the Veteran.  Another form from that month shows that the Veteran insisted that he had been hospitalized at the VA hospital in Tuskegee in August 1983 for one week and that Dr. "S." was his physician.  However, an SSA employee investigated this allegation, calling both the RO and the VA Hospital in Montgomery, but found that no one at either place was able to identify a Dr. S.  

As such, this marks the second time a record appeared in the Veteran's claims file in which the signing doctor appeared to be a fictitious person.

Another statement from an SSA employee indicates that she contacted a Dr. "A" to verify medical information that had his signature but Dr. A. informed her that the Veteran was not a patient of his and asserted that the Veteran had not come in for his compensation examination.  Dr. A. requested that the SSA employee mail him the information so that he could verify if the signature was his.  

This language is similar to an SSA-3368-F8 form filled out by the Veteran in which he stated that he was hospitalized in 1976, 1978, and 1982 for "Nervous disorder as result of being exposed to agent orange."

This evidence tends to show that the Veteran is not credible as to his reported treatment by VA or other physicians.  That the Veteran has identified records that do not exist is consistent with his submission of documents purported to be from medical practitioners which have been documented as not actually being from medical practitioners.  The Board, therefore, affords no weight to any of the Veteran's reports as to treatment provided for any condition other than where there is some independent and authentic documentation of the treatment.  The Board finds that the Veteran is simply not telling the truth and creates evidence to support his claims.

VA "examination report" Dated November 1984

In October 1984, the RO in Atlanta Georgia received the Veteran's application for VA disability benefits based on exposure to Agent Orange.  As to that claim he explained the nature of sickness, disease, or injuries for which the claim was made as follows:  Blood Disorder - ; Blood Pressure Problems - 1966 Agent Orange Exposure - causing blood disorder - 1965."  

On November 2, 1984 the RO requested a physical examination of the Veteran and provided in the request that the "Vet claims sc for nervous cond, hypertension, blood disorder (unspecified) and Agent Orange Exposure.  Pls examine for all claimed conds. Rel to NSC pension."  

However, it was noted that the Veteran failed to cooperate and did not report for his scheduled VA examination.  

In a November 1984 Request for Physical examination form, a section for date completed is stamped "DEC 12, 1984 and in a section for the name of the fee examiner or other station is stamped "FAILED TO COOPERATE" and handwritten is ""DNR" FOR Exam 12-11."  

Of record is a Deferred or Confirmed Rating Decision dated in December 1984 that contains the handwritten text "Vet Failed to Prosecute claim - Did Not Complete Exam - Evidence OF RECORd is not SuFFicieNT FoR RATiNG PurposEs."  

Curiously, a VA examination report (dated November 30, 1984) was received by the RO December 11, 1984; despite the fact that it was clearly noted that the Veteran had failed to report to his scheduled VA examination.  Coincidentally, that same day, the RO also received a medical report entitled "Veterans Administration MEDICAL".  Also of note was the fact that this report was purported to have been signed by the Veteran on November 30, 1984; the same date the VA examination was provided.  

The JMR instructed the Board to provide reasons and bases with regard to two items of evidence dated in November 1984.  The Board attempted to explain why that evidence was not favorable to the Veteran's claim, but the Court asserted in the 2012 memorandum decision that while it was essentially accepted by the Court that multiple VA examination reports were forgeries, because the record was replete with indications that the Veteran had not ever actually reported to a VA examination, the Court felt that this repeated pattern of fraud on the Veteran's part did not encapsulate a November 1984 report entitled "Veterans Administration Medical" at this time. 

The memorandum decision directed the Board to analyze the veracity of this document without drawing impermissible medical conclusions, which it will do at this time. 

The first item referred to in the joint motion is a VA Form 21-2545, A VA report of medical examination for disability evaluation, dated November 30, 1984.  This includes a narrative history provided by the Veteran (the person examined).  He stated as follows:  

Mr. [the Veteran]  handled Agent Orange in airplanes during his tour of duty in Viet nam.  The post traumatic stress disorder brought on [illegible] by chemical 245-T, a toxic chemical TCCD cause a severe break down in soft tissue sarcoma parplgia cutanea tarda and chloracne and chloracne.  Mr. [the Veteran] was release on a medical disc have not work in the passed 18 years.  His condition prevent employment not able to work.  Psychotic, a breakdown in the past tissue sarcoma causing sever weakness treatment started May 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84."

The JMR referred to language in the section for musculo-skeletal system which contained the following language: "[I]nfection related to Agent Orange causing musculo system breakdown in tissues or [illegible] blisters swollen as if patient was addicted to heroin."  The complete handwritten text in that section is as follows:  

infection related to agent orange causing musculo skeletal system breakdown in tissues or flatty soared blisters swollen as if patient was addiction to heron some fluid left, right joints hand, need assistance in the control of movement due to selling knees pressure area a the joints some fluids some areas like the elbow, bottom of feet, stomach tenderness and weakness due to a disease ridden skeletal system fibrous brittle bony throughout the musculo skeletal system received mechanical walker, arms and hands objects used for control.  Dryed skin 1/2 inch thick covering feet, blistering scars around toes right & left feet, wrapping, required, daily saline solution use for aiding the blistering soars area; not able to walk at all.  Use wheel chair.  have a family member with him at all time when not hospitalized.  body has no burns areas.

Of note is that similar entries, in the sense of the language and logic, are found in all sections of this document.  For example, in the immediately following section, which addresses the endocrine system, is written the following: "From the hypothalamus, the pituitary organized the endocrine glands failing to release the amount of harmones into the blood thus effecting the endocrine system thyroid, adrenals, pancreas gonads do not receive enough harmone"

Similarly, in a Remarks section is written the following:  

From the medulla and adjacent areas radiate the cranial nerves are not serving the sensory and motor needs of head, neck, chest and abdomen, olfactory, op[tic, oculomotor, trachlear, trigeminal, abducens, facial, acoustic, glassopharyngeal, vagres, spinal accessory and hypoglossal do to some deteriorating of some areas there exist a severe feeling of helpless senseless, paralyzed blood of protoplasm.  Although cortex and care, the cerebellum governs the patient damaged areas of movement, falling, running at the mouth most of the efferent fibers stemming from cell nuclei deep inside the cerebellum show a small trace of fluid.

This document is signed, in three sections for "SIGNATURE OF PHYSICIAN" with illegible names and a specialty of the first physician as "MD,"  a specialty of the second physician as "heart surgeon," and a specialty of the third physician of "Psychiatry."  

In light of the fact that this case has been repeatedly returned to the Board by the Court over a 15 year period the Board believes it must be absolutely clear on this point:  The Board finds that this document is clearly and unambiguously a fraud.  Rather, the Veteran or someone at his direction, clearly completed not only the narrative section but all other sections as well.  

In light of the JMR and memorandum decision, the Board believes it must explain its findings plainly:  

First, the Veteran clearly did not report for the examination, as documented in the VA Request for Physical Examination which shows that he did not report for the examination.

Second, the language and logic expressed in the entries just quoted is clearly not that of a medical professional but rather is more in keeping with the Veteran's language and logic found in statements that he has signed and submitted to the VA.  

"VETERANS ADMINISTRATION MEDICAL" Record

Now the Board turns to the second document noted by the Parties, a document with a heading "VETERANS ADMINISTRATION MEDICAL" and a section labeled "Policy or Medical Assistance Number."  

As an initial point, the "Veterans Administration Medical" was received on the same day as the VA examination report which the Court has accepted as fraudulent.  This does not seem to be coincidental to the Board, and provides strong evidence that the "Veterans Administration Medical" document is also a forgery.  That is, the Board, as finder of fact, concludes, irrespective of any language contained in the "Veterans Administration Medical" document, that based on the receipt of that document on the same date as a clearly forged VA examination report, both submitted in conjunction with the same claim for VA benefits, and on behalf of a Veteran who has been shown to have submitted multiple forgeries in pursuit of governmental benefits, is sufficient to conclude that the "Veterans Administration Medical" document is also a forgery.

The Board also notes that the document in question is a Xerox of a medical record that appears to have been augmented by hand written notes.  That is, it was not a pre-printed form, but rather one in which medical findings were made in handwriting, the form was then Xeroxed and hand written notes were added.  

This is highly suspicious as well, particularly in light of the fact that a similar medical record was found in the SSA records, but without any of the handwritten additions.

In a section labeled "Describe The Illness or Injury for Which Patient Received Treatment" is the following handwritten entry:  "Soft tissue sarcoma, nervous disorder parephyria cutanea tarda liver disease, active sychosis memory loss illness affective patient nervous system, musculo skeletal sizure and epilepsy attack weekly."  

In a section labeled "Was illness or injury connected with employment" is written "Agent Orange chemicals 2,4-D and 2,4,5 T."  At the bottom of this form is a section for the signature of the patient and this is signed by the Veteran.  

Attached to that form and received on the same date are two other pages.  The first is a listing of entries in a table - for example "heart pills abnormal beat."  The next page begins with the sentences "Entephalin examination has also helped explain the chemistry of the patient neurotic condition.  Encephalins occupy a certain number of opiate receptors.  The medicine [the Veteran] now take relieves some of the pain occupying receptors that are left unfilled."  

The Board finds that this form and accompanying pages were completed by or at the direction of the Veteran, and not completed by a medical professional.  There are no findings anywhere in the records that the Veteran has ever been diagnosed with any of the conditions listed.  The statement that he had skeletal seizures and weekly epilepsy attacks is not supported anywhere in the record.  Moreover, the language and grammar used in the documents is not reflective of what one would expect from a medical professional, or anyone with more than a high-school education, but rather is consistent with the Veteran's own statements found in the claims file.  

For example, in October 1983, a SSA investigator placed a home visit to the Veteran, and in his report he noted that the Veteran's speech contained many grammatical errors.

It is noted that the memorandum decision took issue with the Board's conclusion that the grammar is not what one would expect from a medical professional.  The Veterans Court suggested that medical expertise was required to state that a medical expert would "write a medical report in a certain way using specific language"; the Court suggested that the Board should provide a more thorough statement explaining its reasoning.  

The Board acknowledges that not all doctors write in flowing prose.  However, even accepting that there might be a few doctors with poor writing skills, and clearly many write illegibly, the fact remains that numerous documents are of record, purporting to have been written by multiple medical professionals that are, in this case, frauds.  Yet, they all share the common feature of poor grammar and spelling.  Thus, it would dictate that this repeated pattern of poor grammar and spelling is indicative that the documents all came from a single source, namely the Veteran; and not from multiple medical professionals who could not spell and write in a manner similar to the Veteran.  

Further, and perhaps most importantly, the November 1984 medical document cites problems the Veteran simply does not have.  

Beyond this, it must be noted that the Veteran has repeated avoided examination over many decades, before and after this report.  He has indicated he will not be examined. 

This conclusion is further supported by the fact that there is clear documentation from the SSA to the effect that the Veteran had a demonstrated history of submitting documents to that agency which were not from actual doctors.

As such, the Board wishes to emphasize that its determination that the medical documents were fraudulent has nothing to do with a knowledge of medicine of what a doctor would write.  The Board is not, for example, suggesting that a diagnosis contained in a document was not supported by symptoms.  

Rather, the Board is:  (A) reading the documents of record; (B) comparing the sources they are attributed to; (C) noting correlations between the documents: (D) considering related instances in which other governmental agencies investigated documents submitted by the Veteran and claiming to be from a medical professional who was determined either not to exist or not to have been associated with caring for the Veteran, and (E) making a logical inference. 

In the opinion of the Board, as the appointed fact finder in this case, a logical deduction is precisely what must be done in this highly usual case.  Thus, the Board's decision is not a medical determination in nature; it is a finding of fact based on the considerable evidence of record which, beyond a shadow of a doubt, establishes that the Veteran has a long history of fabricating evidence in an effort to bolster his claims for disability benefits with various governmental agencies.  The Board is empowered to make all findings of fact as long as it does not make medical judgments. 

It is clear that the Veteran has had a tendency to submit documents allegedly from physicians that were not, in fact, from physicians.  This is shown by investigations by both VA and by SSA.  As noted, in April 1981, the RO investigated the purported VA examination report that had been submitted by the Veteran.  However, the chief medical officer at the VA outpatient clinic from which the October 1979 VA examination report was purported to have originated wrote that he had reviewed the examination report, but found that there were no such doctors working at the facility, and he suspected that the form might be a forgery. 

Subsequently, SSA clearly suspected something was amiss with a "medical" document which had been submitted by the Veteran and contacted the VA RO to inquire about the doctor alleged to have written the report, Dr. S.  However, SSA was informed that Dr. S. was not one of the four doctors on staff at the RO at that time.  SSA followed up with the VA hospital in Montgomery, but was informed that there was no Dr. S. on staff there either.  As such, the only logical deduction that can be reached is that the Veteran routinely created false medical documentation in his pursuit of governmental benefits and that this report is a fraud as well.

Because the Board finds that the documents from November 1984, just discussed, were created either by the Veteran or at his direction, and not by medical professionals, the documents are no more probative than any other statement provided by the Veteran.  Given that the VA report of medical examination from November 1984 contains little more than a stringing together of physiologic and anatomical terms, the Board finds that the documents are not evidence favorable to the Veteran's claim.  The documents, however, are evidence unfavorable to his claims because they tend to show that the Veteran is not credible, and therefore cast a negative light on any of his reported history.  

Beyond the above, even if the Board assumes this record is true (that this report was not written by the Veteran but was write by a health care provider reviewing what the Veteran was reporting to him or her), it is entirely based on the Veteran's reported history, which is clearly not accurate, for reasons well noted in this decision.

In this regard, the Board believes it understands the Court's concerns in this case (that while some of the medical records in this case are fraudulent other medical records in this case may, in fact, be valid).  However, it is important to note that even if some of the evaluations are not outright fabrications they are based, for the most part, on reports from the Veteran that simply cannot be found accurate for reasons clearly indicated above and below.  The Board finds that the Veteran is not an accurate historian of his disabilities (either when they began or their existence). 

A critical fact in this highly complex case that has gone on many decades cannot be over looked:  Even at this time, decades after the case came before the Board and has been before the courts for years, in light of the Veteran's actions in this case it is still very unclear if the Veteran has any actual physical disabilities, let alone any disabilities that would qualify for presumptive service connection in light of herbicide exposure.  At this point, based on the available objective evidence (which is very limited in light of the Veteran's highly atypical actions in this case) the Board finds that while the Veteran appears to have some type of mental impairment, it is highly possible that the Veteran has no physical disability at all, let alone a disability that would qualify as related to herbicide exposure related to his service in Vietnam.

The October 1990 Application

In October 1990, the RO received another application from the Veteran for VA disability benefits.  In the section for the nature of the disease or injuries for which the claim is made the Veteran provided as follows:  "Exposed - War herbicide containing dioxin.  A chemical contained in the herbicide Agent Orange 4-6-65 - 5/65/6/65/7/65, 8/65, 9/65, 10/65, 11/65, 12/65, 1/66 - hepatobiliary tract, immunologics, abnormalities, gastrointestinal ulcer, altered lipid Metabolism, Soft tissue sarcoma 100 disable."  He indicated that he had been hospitalized at VA hospitals in New York, New York, and Tuskegee, Alabama in July, August, and September 1990.  He filled in the section of the application for whether he has received treatment while in service, as treatment for hepatobiliary track psychosocial effects in May and November 1965, immunological abnormalities in June, July, and December 1965 at the same location, and for altered lipid metabolism from July to October 1965, with all treatment allegedly occurring at the infirmary of the first battalion in Vietnam.  

In a December 1990 writing he stated that he had been treated for the following "Soft tissue sarcomas, skin disorders/choloracne, subclinical hepatotice effects, porphyria cutanea tarda, neurologic effects, psychological effects, gastrointestinal ulcer and altered lipid metabolism."  He stated in an attachment that he had new symptoms daily.  He also indicated that records of his treatment for Agent Orange exposure could be found at Metropolitan Hospital and a medical facility at the VA RO, both in New York.  

He explained that he believed the conditions he suffers from that are related to Agent Orange exposure include as follows:  

Soft tissue sarcoma a sevre disorder affecting changes in bowel movement a blood red to purplish loose watery stool everyday, change in liver, gastric hyperplasia causing unusual change of normal cells in stomach and other organs including Kidney.  The sarcomeres in the muscle fiber do not contracts, causing severe pain throughout the body.  Past Traumatic Nervousness, depressin, nightmares, uses alcohol and pills and drugs for control of.

The RO requested evidence from the Metropolitan Hospital and in September 1991 received a letter from Metropolitan Hospital Center informing VA that the Veteran was not known to Metropolitan Hospital.  As explained in the "duties to notify and assist" section of the instant decision, there are no records of treatment of the Veteran by any VA facility that he has alleged provided him with treatment.  In his September 1991 VA Form 9 substantive appeal, the Veteran stated that he did not see where a physical examination at a VA hospital would help his case.  

These documents tend to show that the Veteran is not credible and are in keeping with his tendency to report treatment that did not occur and to provide examination reports purportedly written by physicians that the evidence tends to show were not written by physicians.  

There is no authentic evidence showing that the Veteran has any disease for which service connection can be presumed as due to exposure to Agent Orange.  There is likewise no authentic evidence that the Veteran has any disease that reliable evidence shows is caused by exposure to Agent Orange.  In most cases, there is no clear evidence that the disabilities cited exist.

Treatment in 1965-1966

In a May 2004 writing, the Veteran reported that he received treatment at an infirmary in Vietnam in 1965 - 66 for agent orange exposure.  Service treatment records do not show that the Veteran has any of the conditions for which he asserts service connection is warranted.  He was treated for acute urethritis, gonococic, in November 1964, that he reported groin pain in December 1964, lower back pain in April 1965, and groin pain in May 1965.  A January 1966 report of medical examination for the purpose of separation from active service includes that he had a normal clinical evaluation of all systems.  In an associated report of medical examination, the Veteran checked selection boxes for "NO" as to whether he then had or had ever had a approximately 65 different symptoms or conditions, including stomach, liver or intestinal trouble; frequent indigestion; or tumor, growth, cyst, cancer.  He checked a selection box for "YES" only with regard to mumps.  However, checking this box is significant in that it gives added indication that the Veteran reviewed the form, which would necessarily require some reflection about the state of his health, rather than simply checking no for every answer.

Service personnel records document that the Veteran had service in the first battalion 26th Infantry USARPAC from October 1965 to January 1966 and from August 1965 to October 1965 F.R.K. (A) NTTPS1 and he was awarded the Combat Infantry Badge.  There is no indication in these records that the Veteran was discharged for medical reasons.  Indeed, of record is a DD Form 220 documenting that the Veteran underwent a complete medical examination for military service on or about June 28, 1966.  He signed a statement to the effect that upon release from active duty or ACDUTRA during his tour from May 27, 1967 to June 10, 1967 there had been no change in his physical condition and to the best of his knowledge, he was not suffering from any disability, defect, or illness, which was not present upon entry or acquired during this tour of duty.  This form indicates that he had Active duty/ACDUTRA from May 27, 1967 to June 11, 1967.  These records do not indicate that he was discharged for medical reasons.  

These records therefore constitute evidence against the Veteran's claims for two reasons.  First, the records do document treatment of the Veteran for some conditions, but do not show treatment or reported symptoms of any of the diseases of which he alleges he has.  Second, the records are more evidence that the Veteran is not credible.  This is because he has asserted that he has provided documents that either he created or someone else created at his direction stating that he was discharged for medical reasons but the service records show that this is not accurate.  

In the memorandum decision, the Court, citing to VA's duty to assist, took issue with the Board's having failed to have specifically sought to obtain records from treatment the Veteran alleged having receiving at a "ma[k]eshift infirmary."  

Beyond the problems associated with obtaining such records, even if such records ever existed from a makeshift infirmary in Vietnam nearly 50 years ago, it is true that the record contains a form in which the Veteran was asked to provide treatment information, on which he reported receiving treatment at a "U.S. Infirmary/Dispensary" in the "Quang Tri Province" of Vietnam in 1965 and 1966 for PTSD, a gastrointestinal disorder, and sarcoma.  It is noted that in May 2009, the Veteran again completed a form explaining where he had been treated for disabilities related from Agent Orange exposure.  The Veteran repeatedly wrote U.S. Infirmary/Dispensary in each block (reserved for VA medical centers currently and in the past, and for non-VA hospitals or doctors, both currently and in the past.)  The Veteran also described treatment for some combination of PTSD, gastrointestinal malfunction and sarcoma, in each block.  

The Court noted that the Veteran provided the location and approximate dates of his in-service infirmary treatment, and identified treatment for at least three disorders which he has argued were caused by his exposure to Agent Orange.  The Court then indicated that the Board's failure to specifically discuss whether there are outstanding in-service treatment records that VA should have obtained renders inadequate its statement of reasons or bases for its determination that VA fulfilled its duty to assist. 

However, the Court did not specifically direct the Board to seek to obtain such records.  

As such, the Board will explain why it does not believe that such treatment was ever rendered and therefore why VA is not under any duty to remand so that a search for these records could be undertaken.

As an initial point, the Veteran asserts that he was treated for "sarcoma" which is defined as "a connective tissue neoplasm, usually highly malignant."  STEDMAN'S MEDICAL DICTIONARY, 1593 (27th ed. 2000)  

As such, the Veteran is essentially alleging that he was treated for cancer in a field hospital in Vietnam.  

This statement on its face is patently implausible.  

Moreover, the fact is there is no mention of any cancer treatment in the Veteran's service treatment records, including on his separation physical in January 1966.  

Importantly, the Veteran's service personnel records show that he was in Vietnam from September 1965-January 1966.  As such, even if the Veteran arrived in Vietnam, was sent into the field on his first day, and was also diagnosed with cancer on that same day, his separation physical would have taken place fewer than five months later.  Yet, on the Veteran's separation physical there was no mention of either sarcoma or cancer of any kind, or for many years thereafter.  

These facts are totally inconsistent, not even taking into consideration the Veteran's efforts at fabricated medical reports. 

Moreover, on a medical history survey completed in conjunction with his separation physical the Veteran denied any illness other than those reported, providing evidence against his own claim. 

Turning to the other conditions the Veteran reported being treated for, it is noted that while he reported receiving treatment for PTSD at a field hospital in 1965-1966.

"PTSD" was not actually a recognized psychiatric disability (not listed in the DSM) for more than a decade after this alleged treatment for PTSD.

The Board also considered the possibility that the Veteran received treatment for psychiatric problems which he now believes is PTSD, but the fact remains that he specifically denied having ever experienced any frequent trouble sleeping, any frequent or terrifying nightmares, any depression or any nervous trouble of any sort on his medical history survey completed in conjunction with his separation physical.  That is, he denied having ever been treated for any psychiatric symptomatology in January 1966, which again is at most five months removed from the psychiatric treatment he alleges having received in Vietnam, providing factual evidence against his own claim.   

The reasoning is the same with his allegation of gastrointestinal treatment, as he denied having ever experienced any gastrointestinal symptoms on the January 1966 medical history survey.  His history of providing false medical reports to VA and SSA only supports this finding.  The Board, for these reasons and bases, finds that the Veteran's contention regarding this treatment in Vietnam is not factually accurate and there is no duty to remand this case to locate records which clearly do not exist.  

The Veteran's Statements at Separation

While the Veteran now, more than four decades removed from service, claims to have been treated in Vietnam, to accept such a conclusion would require the Board to accept that the Veteran repeatedly lied on his medical history survey completed in conjunction with his separation physical as well as on the separation physical itself.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran).  Yet his statements in 1966 were made without any direction, and were contemporary with the time he now alleges the treatment occurred during.  Conversely, the first allegation of in-service treatment comes years after service and was made in the context of seeking monetary benefits.  

Given the repeated inconsistencies in the Veteran's statements, the Board finds him to be a wholly unreliable historian; and his allegation that he received treatment at a field hospital in Vietnam is afforded no probative weight.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). 

As noted in the memorandum decision, the Board is clearly on notice of the Veteran's allegation that he received treatment in Vietnam.  However, as described, the Board does not feel compelled to waste further government resources in pursuit of records for treatment which clearly and unmistakably never existed.  The Veteran's statements as to treatment in service are not to be believed based on affirmative evidence that refute the Veteran's contentions on this point, as noted above.

This conclusion is made with the full understanding and appreciation of the guiding principle that VA will make as many requests as are necessary to obtain relevant records from a Federal Department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.  38 C.F.R. § 3.159(c)(2).  Here, the Board concludes that such a search would be futile, as no such treatment was ever provided.  Therefore, a remand is not necessary to seek any treatment records.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).  

The Veteran's Alleged Disabilities

The Veteran has also, through the years, alleged to have a number of diseases which he relates to Agent Orange exposure during service.  However, as discussed above, it does not appear that the Veteran has actually been diagnosed by a real doctor with any disability secondary to herbicide exposure.  Rather, it would appear that through the years the Veteran has concluded on his own that he has a disability or disease and then sends a statement into the VA asserting that such a condition is secondary to herbicide exposure.  

For example, in October 1984, Veteran filed a claim seeking service connection for "Agent Orange exposure causing a blood disorder (he also sought service connection for blood pressure problems).  

On October 3, 1984, the Veteran asserted that he had soft tissue sarcoma, nervous disorder, porphyria cutanea tarda, liver disorder, and chloracne.  

In December 1990, the Veteran wrote that he was treated for soft tissue sarcomas, skin disorders/chloracne, subclinical "hepatotxile effects" porphyria cutanea tardia, neurologic effects, psychological effects, gastrointestinal ulcer and altered lipid metabolism.  

In December 1990, the Veteran indicated that he had a soft tissue sarcoma, a severe disorder affecting changes in bowel movements, liver changes, gastric hyperplasia causing a unusual change of normal cells in the stomach and other organs including the kidney.  He also asserted that the sarcomeres in the muscle fiber did not contract causing severe pain.  He also related post traumatic nervousness, depression, nightmares and alcohol and drug use to Agent Orange exposure.

In June 2008, the Veteran asserted that he had PTSD and "other Agent Orange related disorder[s]."

As noted above, it would be very difficult to list the Veteran's alleged disabilities associated with herbicides as his contentions regarding this issue change over time and are generalized in nature at some points (see June 2008 statement).  As noted above, "[e]ntitlement to service connection for 'disabilities' resulting from exposure to Agent Orange" would not be how the undersigned would customarily address this issue.  In any event, what is consistent in these submissions is that they have at no time been accompanied by credible medical evidence showing either the presence of a claimed disease/disability, or suggesting that a diagnosed condition even might be secondary to herbicide exposure.  In most cases, there is no evidence that the disability exists. 

In its previous decision, the Board generally concluded that as to the Veteran's statements that he had any of the diseases for which he asserted service connection was warranted, he was neither competent to diagnose such diseases nor credible in his reports of any symptoms of or treatment for such diseases.  

The Board explained that the diseases that the Veteran had referred to by name, such as soft tissue sarcoma, chloracne, and cutanea tarda, are not diseases that are subject to differentiation from other diseases by mere observation, and they are not diseases that are commonly referred to in popular culture.  Moreover, the Veteran had not explained and the Board, also a non-expert, had no basis for finding that, for example, chloracne has any characteristic features that are readily distinguishable by a layperson from some other form of acne or skin disease.  Nor is it within the realm of lay knowledge to distinguish one form of cancer from another.  It is well known that cancers are diagnosed through laboratory tests or inspection by a trained medical professional.  For these reasons the Board finds that the diseases that the Veteran alleges he has due to Agent Orange exposure are not of the type that can be diagnosed by a layperson.  

The memorandum decision took issue with this point as well, asserting that the Board had only addressed three of the Veteran's alleged disorders in detail, but had not made clear how its reasoning might apply to his other disorders.

As noted above, it would be very difficult to list the Veteran's alleged disabilities associated with herbicides as his contentions regarding this issue change repeatedly.  

In light of the unique facts of this case, the Board, rather than attempting to list all the problems the Veteran alleges he has as a result of herbicide exposure, attempted to address the Veteran's central concern and determine if the Veteran has any disability related to herbicide exposure.  In Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) the Federal Circuit clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders.  As emphasized in Clemmons, though a veteran may only seek service connection for PTSD, the veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id.  The rational appears applicable to this case in that the Veteran has been consistent:  He believes that he has multiple problems associated with herbicide exposure.  To address this contention, the Board worded the issue as: entitlement to service connection for "disabilities" resulting from exposure to Agent Orange (herbicides).

Regarding the question of whether the Veteran is competent to diagnosis his condition and then associate that condition with exposure to herbicides, the Board has repeatedly explained why the Veteran is not credible.  As such, it is ultimately irrelevant whether he is competent to report any diagnosis, as he is not credible in his statements to the VA regarding his medical history and his condition (even if the Veteran were a doctor, at this point the Board does not believe his factual statements not on the basis of any medical determination by the Board, but on the basis of the factual determination that he is a highly inaccurate historian of his alleged problems). 

In the memorandum decision, the Veterans Court noted that since 1984, the Veteran had stated that Agent Orange exposure had caused him to suffer from post-traumatic stress disorder (PTSD), sarcoma, a nervous disorder, extreme pain, skin disorders/chlorache, down syndrome, porphyria cutanea tarda, a liver disorder,
a neurological disorder, an ulcer, "altered lipid metabolism", an immunological disorder, a hepatobiliary track disorder, a blood disorder, gastric hyperplasia, and gastrointestinal malfunction.  The memorandum decision also cited to a November 1984 "VA medical examination", indicating that the Veteran was suffering from a number or disorders associated with exposure to Agent Orange, and noted that in May 1994, the RO denied service connection for soft-tissue sarcoma and a gastrointestinal disorder.

As noted, the Court took no issue with the Board's conclusion that the Veteran was not competent to describe sarcoma, porphyria cutanea tarda, and chloracne.  Additionally, PTSD was acknowledged to have been adjudicated separately, denied, and not appealed, and is therefore not for consideration.  

With regards to the other cited disorders (nervous disorder, down syndrome, a liver disorder, a neurological disorder, an ulcer, "altered lipid metabolism", an immunological disorder, a hepatobiliary track disorder, a blood disorder, gastric hyperplasia, or gastrointestinal disorder), each of these diagnoses would require medical expertise to diagnose.  It is acknowledged that the Veteran might be considered competent to report symptoms such as pain, but VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms.  Rather, the VA needs to identify a disability, not symptoms of a disability.  Accordingly, service connection cannot be granted for symptoms of a disability.  The Board also finds that the Veteran has not generally reported symptoms, instead suggesting he has a liver disorder for example.  This is not something his is competent to do.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).   Simply put, the Veteran is not competent to diagnose the aforementioned conditions as they are not perceivable from the use of any of his senses.  Rather they are internal conditions which would require testing that would then be interpreted by a person with medical training.  This is not the case here.  As discussed, medical evidence has not been presented to actually establish any of these conditions.  

In most cases, there is no evidence that these problems even actually exist at this time. 
 
Moreover, even if the Veteran were competent to diagnose something such as a gastrointestinal disorder, and the Board does not believe he is, the fact remains that the Veteran's claims file is void of credible medical evidence linking any such condition to his time in service, to include any exposure to herbicides therein.  There is also the question of whether the Veteran actually has any actual physical disability, as noted above. 



The Veteran's Unwillingness to Attend a VA Examination and the Impact this has on his Claims

It is noted in this regard that VA has been attempting to provide the Veteran with VA examinations for more than three decades, but despite VA's best efforts, the Veteran continues to waste VA's time and resources by repeatedly failing to report to scheduled examinations, even telling a VA employee to "go to hell" when the employee was endeavoring to schedule an examination, in an effort to help the Veteran prevail in his claim, notwithstanding indications of fraud. 

The takeaway from all of this is that the Veteran does not appear to have described any condition which is presumptively associated with herbicide exposure, which is also capable of lay observation; and even if he did, the consistently fraudulent submissions by the Veteran in pursuit of disability benefits have so tainted his credibility, that none of his statements or submissions can be believed by a finding of fact in this case.  A review of the records only supports this finding.    

The Board understands that the Veteran appears to have some sort of mental impairment.  However, a detailed review of the records fails to indicate that he has any disability associated with herbicide exposure (whether or not it is on the list of presumptive disabilities).  His unwillingness to attend an objective examination makes further evaluation of this claim impossible at this time.  A review of records only provided evidence, overall, against these claims. 

The Board, in its role as fact finder, "is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself."  Buchanan v. Nicholson, 451 F.3d at 1337 (emphasis added).  Also, a layperson may be competent "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). 

However, what is incumbent in this is the fact that for lay testimony to establish the existence of a disability, it must be both competent and credible.

Here, the Board has already provided a detailed explanation as to why this Veteran is found to be not credible.  In light of the joint motions and memorandum decision, the Board once again emphasizes its conclusion that:  The Veteran has repeatedly fabricated evidence, his statements regarding treatment are not believable, he is knowingly creating an inaccurate medical history that is not true, and his statements, as a whole, are found to provide highly probative evidence against all claims with the VA.  Based on the Veteran's conflicting statements and fabricated evidence, the Board finds that the Veteran is not credible.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." 

Because of his repeated pattern of providing fraudulent and fabricated statements, the entirety of the Veteran's lay assertions regarding what diseases he has and any relationship of any disease that he may have to exposure to Agent Orange are afforded no probative weight.    

The Board has not neglected to consider that it appears the Veteran received compensation from the Agent Orange Payment Program, but this fact does not provide a factual basis to find that he has a disability related to service.  

There is no evidence of record that is both competent and credible, showing that the Veteran has any disease for which service connection can be presumed due to exposure to Agent Orange or that is shown to have been caused by exposure to Agent Orange.  As the record fails to show that he has any disease for which service connection can be presumed based on in-service exposure to Agent Orange and fails to show that any disease that he may have, including psychiatric disease, was caused by in-service exposure to Agent Orange, his appeal must be denied.  The evidence in this case is not evenly balanced and there is therefore no reasonable doubt to be resolved.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, his claim is denied.
Duties to notify and assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 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, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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.  38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  For service-connection claims, this notice must address the downstream elements of disability rating and effective date.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

With regard to the Veteran's claim of entitlement to service connection for disabilities due to Agent Orange exposure, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in April 2004, March 2006, and April 2009 that fully addressed all three notice elements and were sent prior to the initial RO decision in this matter.  The letters informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence.  

As to this issue, the unfavorable rating decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current § 5103(a) requirements in 2000.  The Veterans Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial decision, the RO did not err in not providing such notice.  Rather, a veteran has the right to a content complying notice and proper subsequent VA process.  Pelegrini, 18 Vet. App. at 120.   The letters sent to the Veteran in April 2004, March 2006, and April 2009 provided the content complying notice and subsequent VA process was afforded the Veteran following those letters, most recently by the RO's issuance of a supplemental statement of the case in November 2009.  

Moreover, no allegation of any deficiency in the notice that was provided was raised to the Court on appeal.  See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  
 
VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service and other pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

As explained, VA has made all necessary efforts to afford the Veteran a VA examination.  He has refused to cooperate with those efforts by repeatedly refusing to attend an examination.  VA has therefore fulfilled its duty to afford him an examination.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained his service treatment and personnel records.  Records of his claim for disability benefits from the Social Security Administration (SSA) are also associated with the claims file.  

In 1990 the Veteran reported that he was treated "for the Chemical - Agent Orange" at a VA medical facility located in New York City and at Metropolitan Hospital located in New York City.  Of record is a July 2002 VA Form 10-7132 in which the VA Medical Center (VAMC) in New York, New York indicated that there were no available records of treatment of the Veteran.  A September 2002 letter from the VA Central Health Care System in Tuskegee, Alabama indicates that there are no locatable records of the Veteran.  The Board believes that this treatment never occurred for reasons noted above.  In any event, effort to locate these records have been unsuccessful.

In the June 2008 remand, the Board instructed the AOJ to send a letter to the Veteran and his representative (at the time) asking him to submit evidence relevant to his claim for service connection for disability due to Agent Orange exposure or to provide VA with the necessary information so that VA could assist him in obtaining the evidence.  Of record is an April 2009 letter that is compliant with that remand instruction.  The Veteran did not provide any additional information.  The Board also instructed the AOJ to ensure that the Veteran was afforded a relevant C&P examination, and as already explained, the RO made all necessary efforts to afford the Veteran an examination but the Veteran refused to attend the examination.  Based on the RO's actions the Board finds that there has been compliance with its June 2008 remand.  See Stegall v. West, 11 Vet. App. 268 (1998).  

The record contains a form in which the Veteran was asked to provide treatment information so that VA can know where to request his records from.  He wrote that he received treatment at a "U.S. Infirmary/Dispensary" in the "Quang Tri Province" of Vietnam in 1965 and 1966 for PTSD, a gastrointestinal disorder, and sarcoma.  The memorandum decision noted that the Veteran listed similar information in a July 2008 statement and in his September 1990 claim for disability benefits.  The memorandum decision directed the Board to discuss whether there were outstanding treatment records that should be sought.  However, as was discussed in the body of this decision, the evidence of record does not support the conclusion that the Veteran was actually treated in Vietnam as he reported, and, as such, there are no additional records to seek.  The obtained service treatment records are found to be a complete record of the treatment the Veteran received in service.

Neither the Veteran nor his prior representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Beyond the above, the Board must note that this case has been ongoing for decades.  It is noted that VA has been attempting to provide the Veteran with VA examinations for three decades and attempting to locate records for two decades.  Even if the Board were to find a disability the Veteran currently has is related to herbicide exposure (based, on example, on a review of treatment records and the list of presumptive herbicide disabilities), given that the Veteran is clearly unwilling to attend an examination, which would be required by the RO in order to determine the extent of the disability in light of what can only be described as an highly unreliable record in this case) a grant of service connection will not provide the Veteran with benefits, mooting all prior efforts to assist the Veteran with his claims.  Further efforts are not warranted.  

ORDER

The appeal is denied.  


____________________________________________
JOHN J. CROWLEY 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs