Citation Nr: 1313480 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-46 058 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected hypertension. 2. Entitlement to service connection for prostate cancer as a result of in-service exposure to chemical herbicides in Korea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to September 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 RO decision. The Board notes that the Veteran submitted a notice of disagreement (NOD) in December 2009 with respect to a November 2009 denial of his claim for service connection for residuals of a cerebrovascular accident and loss of vision. In a November 2010 rating decision, the RO granted service connection for right cerebral infarct and left superior quadrantanopia. This decision was a complete grants of benefits with respect to these issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, these issues are not currently on appeal before the Board. The Board notes that the Veteran indicated in a December 2010 statement that he feels that his vision has deteriorated since his compensation and pension examination, as has his other symptomatology. The Board notes that the Veteran was granted service connection for left superior quadrantanopia in a November 2010 rating decision. It is unclear from the Veteran's statement whether he was attempting to submit a NOD with the November 2010 rating decision or attempting to submit a new claim for an increased rating. As such, the Board finds that the issue of entitlement to an increased rating for service-connected left superior quadrantanopia has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's hypertension is manifested by a diastolic pressure of predominantly less than 110 and a systolic pressure of predominantly less than 200. 2. The credible evidence of record does not support a finding that the Veteran was exposed to agent orange or herbicides during service. 3. Prostate cancer was not shown in service or until many years after service, and has not been shown to be etiologically related to a disease, injury, or event in service, including alleged exposure to herbicides during such service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for hypertension have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.104, Diagnostic Code 7101 (2012). 2. Prostate cancer was not incurred in or aggravated by active service, and may not be presumed to have been incurred in or aggravated by service. See 38 U.S.C.A. § 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. A July 2009 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the Veteran was informed in this letter of how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available, pertinent service treatment records and relevant VA and private medical records are in the file. The Board notes that the Veteran indicated in a December 2010 statement submitted in response to a November 24, 2010, award letter that he was hospitalized during November and part of December at John Cochran VA Medical Center (VAMC) in St. Louis, Missouri, for his claimed conditions. The Board notes that the November 24, 2010, award letter referred to the Veteran's right cerebral infarct and left superior quadrantanopia. Therefore, as the Veteran did not indicate that his hospitalization was related in any way to the claims on appeal, the Board finds that all available records identified by the Veteran as relating to these claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With regard to claims of service connection, the Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. With respect to the Veteran's claim for service connection for prostate cancer, the Board notes that there is no competent medical evidence linking this disability to military service, and no lay evidence as to the presence of symptomatology in service or as to a continuity of symptomatology suggesting an association to service. The Veteran has indicated that exposure to agent orange or herbicides resulted in his prostate cancer. However, as will be discussed in greater detail below, the Board finds that the evidence of record does not verify such exposure while on active duty. The Board is aware that Charles v. Principi, 16 Vet. App. 370 (2002), requires VA to obtain a medical nexus opinion where the claimant has been diagnosed as having a disability and has proffered competent lay evidence of continuous symptoms of the disorder since his discharge from service. Here, however, the Veteran's service treatment records contain no evidence of treatment for or complaints of prostate cancer, nor has the Veteran proffered lay statements indicating the presence of symptomatology in service or that he has had continuous symptoms of this disability since his active duty. Thus, as there is no medical evidence suggesting an association between his current disability and service, and no lay evidence as to the presence of symptomatology in service or the continuity of symptoms since service, the Board finds that the third prong of McLendon is not met, and that a VA examination or opinion is not warranted. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran with a VA examination for his hypertension claim in August 2012. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. The examiner reviewed the claims file, examined the Veteran, and conducted the appropriate diagnostic tests and studies. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board finds this examination report to be thorough and consistent with contemporaneous medical records. Thus, the Board concludes that the examination in this case is adequate upon which to base a decision with regard to this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include malignant tumors, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). In this regard, it is noted that a "Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The diseases alluded to above include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, all chronic B-cell leukemias, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 1. Entitlement to an evaluation in excess of 10 percent for service-connected hypertension. An evaluation of 10 percent is currently assigned to the Veteran's hypertension, effective July 3, 1990, under Diagnostic Code 7101, found at 38 C.F.R. §4.104 (2013). Under Diagnostic Code 7101, a 10 percent evaluation is provided when evidence demonstrates diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, and a minimum of 10 percent is also assigned when there is a history of diastolic blood pressure of predominantly 100 or more and continuous medication is required for control. A 20 percent evaluation is warranted for hypertension with diastolic pressure predominantly 110 or more, or; systolic pressure is predominantly 200 or more. A 40 percent evaluation is warranted for hypertension with diastolic pressure predominantly 120 or more. A maximum schedular evaluation of 60 percent is assigned when there is diastolic pressure predominantly 130 or more. The Board notes that the Veteran underwent a VA examination in August 2012. At this examination, his blood pressure was recorded as 128/80, 122/78, and 122/80. In an October 2010 VA examination report, the Veteran's blood pressure was recorded as 128/76, 136/80, and 140/76. A review of the VA and private medical records reveals that the Veteran's blood pressure was recorded as 137/97 in May 2009, as 124/80 in June 2009, as 118/84 in July 2009, as 106/76 and 116/82 in September 2009, as 146/90 in February 2010, as 132/77 in September 2010, and as 100/63 in August 2010. In order for the Veteran's disability to warrant an increased rating, it must meet the criteria of at least a 20 percent rating. There is no indication in the medical evidence of record that the Veteran has demonstrated a diastolic pressure of predominantly 110 or more or a systolic pressure of predominantly 200 or more. As such, a higher rating is not warranted under Diagnostic Code 7101. The Board has reviewed the remaining diagnostic codes relating to diseases of the heart but finds Diagnostic Code 7101 is the most appropriate diagnostic code to apply in this case. See 38 C.F.R. § 4.104, Diagnostic Codes 7000-7123 (2012). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected hypertension is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against the claim for an increased rating for hypertension, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings is not for application, as the disability has remained relatively stable throughout the appeal. Hart, supra. 2. Entitlement to service connection for prostate cancer as a result of in-service exposure to chemical herbicides in Korea. The Veteran contends that he has prostate cancer as a result of in-service exposure to herbicides while serving in Korea between 1968 and 1969. In his December 2009 NOD, the Veteran asserted that he was assigned to the air defense command while stationed in Korea, his unit had missiles on the demilitarized zone (DMZ), and he made numerous trips to the DMZ while in Korea. In his November 2010 substantive appeal, the Veteran asserted that he was the commanding officer's driver and drove him to the DMZ in Korea on numerous occasions in the course of his duties. A review of the service treatment records reflects no complaints, treatment, or diagnoses of prostate cancer. A review of the post-service medical evidence of record reflects that the Veteran was diagnosed with prostate cancer in 2008. As an initial matter, the Board notes that there is no medical evidence of record reflecting that the Veteran was diagnosed with prostate cancer during service or within one year of discharge from active duty, nor has the Veteran asserted such. Therefore, service connection cannot be granted for prostate cancer on a presumptive basis under 38 U.S.C.A. § 1112. With respect to granting service connection for prostate cancer based on in-service exposure to herbicides outside of Vietnam, VA has information regarding agent orange use in Korea along the DMZ. Previously, the United States Department of Defense (DoD) confirmed that agent orange was used from April 1968 through July 1969 along the DMZ, although there is no indication that the herbicide was sprayed in the DMZ itself. On January 25, 2011, VA amended its regulations to provide presumptive herbicide exposure for any Veteran who served between April 1, 1968, and August 31, 1971, in a unit determined by VA and the DoD to have operated in an area in or near the Korean DMZ in which herbicides were applied. See 76 Fed. Reg. 4,245-4,250 (Jan. 25, 2011). If it is determined that a Veteran who served in Korea during this time period belonged to one of the units identified by DoD, then it is presumed that he or she was exposed to herbicides containing agent orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. The Board notes that the Veteran's personnel records reflect that he served in Korea from July 19, 1969, to August 18, 1970, with the Btry A 4th Bn (HERC) 44th Arty; HHB, 4th Bn (HERC), 44th Arty; and Btry F 4th Bn (HERC) 44th Arty. Therefore, while it is clear from the evidence of record that the Veteran served in Korea during the required timeframe, the Veteran did not serve in one of the units in Korea identified by DoD as being exposed to herbicides or agent orange. Additionally, the Board notes that the claims file contains a July 2009 response from the National Personnel Records Center (NPRC) indicating that there is no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam, and there is no record of exposure to herbicides. Further, the claims file contains an October 2009 VA Memorandum, in which it was determined that the Veteran's alleged agent orange exposure could not be corroborated. This Memorandum outlined the efforts that were made in order to obtain the information necessary to verify exposure to agent orange. The Board notes that VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(p) specifies that a request should be sent to the United States Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides when a Veteran claims exposure in Korea, and his/her service was not (1) between April 1, 1968, and August 31, 1971, and (2) in a unit or entity that DoD has identified as operating in or near the Korean DMZ during the qualifying time period. In this case, however, as the Veteran's Korean service was clearly between April 1, 1968, and August 31, 1971, no further development is required. The Board has considered the Veteran's assertions that he made numerous trips to the DMZ while in Korea. However, the evidence of record simply does not reflect that he served in a unit or entity that DoD has identified as operating in or near the Korean DMZ during the qualifying time period. Moreover, there are no allegations or evidence suggesting or supporting the fact that the Veteran was otherwise exposed to agent orange or herbicides. As such, exposure to herbicides or agent orange cannot be conceded, and service connection cannot be granted on a presumptive basis for prostate cancer as a result of in-service herbicide or agent orange exposure. With respect to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). Currently, there is no lay or medical evidence of record reflecting that the Veteran had prostate cancer in service, and no competent medical opinion has related his prostate cancer to service. The Veteran has never asserted that he had prostate cancer in service, nor has he described a continuity of relevant symptomatology since service. Moreover, the medical evidence of record does not reflect a diagnosis of prostate cancer until many years after service. To the extent that the Veteran has offered his own opinion as to a nexus between his prostate cancer and his exposure to herbicides, the Board finds that the opinion warrants no probative value. Notably, the Veteran's exposure to herbicide has not been established; in fact, as explained above, the evidence does not support such exposure. Therefore, as the evidence does not support an in-service event or incident on which service connection may be based, the claim fails. In conclusion, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for prostate cancer; therefore, the benefit-of-the-doubt rule does not apply. ORDER Entitlement to an evaluation in excess of 10 percent for service-connected hypertension is denied. Entitlement to service connection for prostate cancer as a result of in-service exposure to chemical herbicides in Korea is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs