Citation Nr: 1319467	
Decision Date: 06/17/13    Archive Date: 06/27/13

DOCKET NO.  09-44 492 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for skin basal cell carcinoma of the forehead.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Juliano, Counsel
INTRODUCTION

The Veteran served on active duty from March 1968 to January 1970.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Boise, Idaho.

The Board notes that in light of the medical evidence of record and the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's claim for service connection for PTSD more broadly as for service connection for PTSD as a claim for service connection for an acquired psychiatric disorder, to include PTSD and depression.

The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, bilateral hearing loss, and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran has basal cell carcinoma that is related to his active service, to include conceded herbicide exposure.


CONCLUSION OF LAW

Service connection for basal cell carcinoma of the forehead is not warranted.  38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 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 claim for service connection for basal cell carcinoma of the forehead, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).

The Board finds that a VCAA letter dated November 2007 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012).  The November 2007 VCAA letter informed the Veteran of what information or evidence was needed to support his claim, including for claims based on herbicide exposure, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain.  The notice also explained how VA assigns disability ratings and effective dates.  See Dingess, supra.

The Board also concludes that VA's duty to assist has been satisfied.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  All of the Veteran's service treatment records and relevant VA treatment records have been associated with the claims file.  The Veteran has not identified any additional relevant treatment records for VA to obtain.  

VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of 
(1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  See 38 C.F.R. § 3.159(c)(4) (2012);  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

With regard to the Veteran's claim for basal cell carcinoma of the forehead, the Board acknowledges that the Veteran has not been provided with a VA examination.  The Board finds, however, that no VA examination is required as there is no competent evidence tending to indicate any relationship between basal cell carcinoma and his service, to include conceded herbicide exposure, so as to trigger the duty to provide a VA examination.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010); Duenas v. Principi, 18 Vet. App. 512 (2004); Wells v. Principi, 326 F.3d 1381 (2003).  While the Board acknowledges the Veteran's contention that he incurred basal cell carcinoma on his forehead ("skin cancer") due to herbicide exposure during his service in Vietnam, and while the Board concedes herbicide exposure during his Vietnam service, the Board finds that the Veteran does not have the medical training and experience so as to be competent to opine as to the etiology of a complex disease such as basal cell carcinoma.  See 38 C.F.R. § 3.159(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).   

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), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the record contains sufficient evidence to make a decision on the claim.

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 that 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 a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (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).

The Veteran claims that he incurred basal cell carcinoma of the forehead (claimed as skin cancer) due to exposure to herbicides during his service in Vietnam.  

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).

In the case of veterans who have been exposed to an herbicide agent during active service, 38 C.F.R. § 3.309(e) provides presumptive service connection for certain listed diseases.  See also 38 U.S.C.A. § 1116.  Basal cell carcinoma, however, is not included in the listed diseases for which service connection may be presumed.

With regard to his alleged herbicide exposure, as an initial matter, the Board acknowledges that the Veteran's service personnel records reflect he served on active duty in Vietnam from August 1968 to August 1969.  Therefore, herbicide exposure is conceded.  See 38 C.F.R. § 3.307(a)(6)(iii) (2012).  As noted above, however, basal cell carcinoma is not one of the diseases for which presumptive service connection may be granted under 38 C.F.R. § 3.309(e) based on herbicide exposure.  Nevertheless, the Veteran may prove service connection on a direct basis.  See Haas v. Peake, 525 F.3d 1168, 1193 (Fed. Cir. 2008) (citing 38 C.F.R. 
§ 3.309(e)); see also Combee v. Brown, 5 Vet. App. 248 (1993).

A September 2007 VA treatment record reflects that the Veteran had a history of having a basal cell skin cancer removed from his left eyebrow.  A prior May 2007 VA record similarly notes a history of two skin lesions having been removed, one that was a "sun exposure cancer" above his left eyebrow.

As noted in the VCAA section above, the Veteran was provided with a VCAA letter dated November 2007 that informed the Veteran of what information or evidence was needed to support his claim, including for claims based on herbicide exposure.  The Veteran did not, however, respond with any information as to when and where he was treated for basal cell carcinoma, and the Board notes that the duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Therefore, the Board is left with the record before it, which contains no evidence tending to link any currently diagnosed basal cell carcinoma, or residuals thereof, to the Veteran's service, to include his conceded herbicide exposure, except for the Veteran's own lay statements, which the Board finds to be not probative.  As noted in the VCAA section above, the Board finds that the Veteran lacks the requisite medical education and experience to opine as to whether any basal cell carcinoma may be etiologically related a herbicide exposure, and, therefore, the Board finds his lay opinion as to etiology to lack competency.  The Board adds that one VA treatment record reflects that his history of basal cell carcinoma was caused by sun exposure, which also tends to discount his credibility insofar as he argues it was related to herbicide, not sun, exposure.  See May 3, 2007.

In summary, the Board concludes that the preponderance of the evidence is against granting service connection for basal cell carcinoma of the forehead; the benefit of the doubt rule is not for application.  See 38 U.S.C.A. § 5107(b).

ORDER

Service connection for basal cell carcinoma of the forehead is denied.


REMAND

A.  Acquired Psychiatric Disorder

The Veteran served on active duty from March 1968 to January 1970, including one year of service in the Republic of Vietnam from August 1968 to August 1969.  He claims that he has an acquired psychiatric disorder, to include PTSD, that is related to service.

Specifically, the Veteran asserts that in September 1968, while stationed with the Headquarters and Headquarters Battery, 8th Battalion, 26th Artillery (mistransposed as the 52nd Artillery, 26th Artillery) around Onkay or Onkyo, Vietnam, he helped move wounded soldiers who were being medevaced to his base or camp after the TET offensive into tents and shot them with morphine; he also asserts that he was in a convoy that came upon a village that had been dropped with white phosphorous, and that dead bodies were being dumped into holes and burned.  See Stressor Statement, November 2009.  He also asserts that on one occasion (no date was provided), around Kontum, Vietnam, he and another soldier were asked to travel 80 miles alone and trade their C-rations for lumber to build bunkers, and that they feared for their lives.  See Stressor Statement, November 2009.  He also asserts that on one occasion, his base or camp around Ben Het came under a "horseshoe ambush" by the enemy for several days.  Finally, he reports that on one occasion, on a convoy from Kontum to Ben Het, they stopped and a Kit Carson Scout got out of the vehicle and grabbed a woman in the jungle to interrogate her, and that the Veteran learned after the fact that the scout cut off her breast with a knife during the interrogation.

As an initial matter, the Board acknowledges that the stressor verification report from DPRIS mostly focuses on whether the Veteran's unit experienced any enemy attacks as per an OR-LL report for the period ending in October 1968, whereas the Veteran's buddy, J.F., wrote in a January 2010 statement that he served with the Veteran's unit in Vietnam, and that it was in Ben Het during the latter part of their tour (ending in August 1969) when a lot of enemy action took place and ground and air attacks were prevalent.  Regardless, the Board acknowledges, as pointed out by the Veteran, that he was attached to an artillery unit in Vietnam, and the Board also acknowledges that it is not inconceivable that a radar operator for an artillery unit would, at some time during a tour in Vietnam, have to leave his base camp and fear for his life as contemplated by recently amended 38 C.F.R. § 3.304(f)(3).  The Board adds that it is not inconceivable that, having been attached to an artillery unit, the Veteran would witness wounded soldiers.  Therefore, the Board concedes that the Veteran's reports of fear of enemy attacks during his service in Vietnam are consistent with the circumstances, conditions, or hardships of that service such that further attempts at stressor verification are not required.  See 38 C.F.R. § 3.304(f)(3).  

VA treatment records in the claims file dated from 2007 to 2009 reflect that the Veteran admitted himself for alcohol detoxication in May 2007, September 2007, and December 2008.  Several of these records reflect diagnosed alcohol abuse or dependence and various depressive disorders.  A few VA treatment records also reflect diagnosed PTSD or a history thereof.  The Board also acknowledges a September 2010 VA examination report in which the VA examiner essentially opined that although the Veteran's reported stressor(s) met the DSM criteria for PTSD, he did not meet the diagnostic criteria for a diagnosis of such and, rather, that his diagnosis was alcohol dependence and an alcohol induced mood disorder with depressive features that the examiner opined were related to his alcohol abuse, not his service.  The examiner noted that the Veteran reported that he did not experience any difficulties with occupational or social functioning until 2005 when he had to close down his business and he was struggling to find employment, and that the Veteran reported experiencing no social difficulties until moving to a new town.  

In support of his claim, the Veteran submitted a December 2009 letter from Dr. A.O. of the VA medical center in Boise, Idaho (Chief, Inpatient Psychiatry).  Dr. A.O. wrote that the Veteran recently came under his care at the VA, and that he believed that the Veteran had PTSD due to combat experience in Vietnam.  The Board notes, however, that the VA treatment records in the claims file dated through April 2009 do not include any treatment records from Dr. A.O.  Therefore, the Board finds that a remand is necessary to obtain copies of any outstanding VA treatment records dated since April 2009 relating to the Veteran's claim, particularly those prepared by Dr. A.O.  

As it appears that relevant evidence in the form of regular treatment for PTSD was not before the examiner in February 2009, the Board finds that that examination is no longer adequate for rating purposes.  The Veteran must be afforded an additional examination, and review of the record, to determine whether he meets the regulatory criteria for a diagnosis of PTSD for VA compensation purposes.



B.  Hearing Loss and Tinnitus

The Veteran claims that he has hearing loss and tinnitus as a result of service.  The Board notes that the Veteran served in Vietnam from August 1968 to August 1969 as a radar operator for an artillery unit.  Specifically, he asserts that he experienced acoustic trauma as a result small arms and large artillery fire in service, as well as from noise from low-flying aircraft.  See Statement, November 2007.  He reports that there was constant artillery fire on his base.  See Form 9.  The Veteran has also believes that his hearing loss and tinnitus may be related to an occasion in Vietnam when "they shot off a low boy over our track unit."  See Statement, November 2009.  He reports experiencing constant tinnitus since service.  See, e.g., VA Audiology, February 2009.

The Board acknowledges that VA treatment records dated from 2007 to 2009 reflect diagnosed sensorineural hearing loss, and that the Veteran has been issued hearing aids.  See, e.g., February 2009 clinical record.  

The Veteran was provided with a VA examination in August 2009.  The VA examiner, however, opined that the Veteran's hearing loss and tinnitus are less likely as not related to his service, reasoning in part that his hearing was normal at separation and that he had noise exposure in his civilian work and recreation.  His post-service occupational history of some farming and working in auto body paint and repair, followed by auto retail from 1978 to 2004, was noted in the report, as well as his history of recreational shooting.  

The Board is cognizant of the Court's holding in Hensley v. Brown, 5 Vet. App. 155, 159 (1993) that normal hearing at separation from service does not necessarily preclude an award of service connection for hearing loss.  See also Ledford v. Derwinski, 3 Vet. App. 87 (1992).  In this regard, the Board adds that although the Veteran's hearing thresholds were noted as normal on his January 1970 separation examination report (all zero), nevertheless, a positive threshold shift is shown in several frequencies from his December 1967 enlistment examination report (showing some thresholds in the negative).  The August 2009 VA examiner did not, however, address the shift in thresholds.

In addition, the Board finds that the nature of the Veteran's post-service occupational noise exposure is not entirely clear, particularly given the fact that the VA examiner noted his occupational history from 1978 to 2004 as being in auto retail, an occupation not typically associated with significant noise exposure.  In fact, the Veteran denied any significant occupational noise exposure to the VA audiologist in February 2009.  Also, while the Board acknowledges that some post-service recreational noise exposure from gunfire was noted, the Board notes that it is certainly plausible that the Veteran, having been attached to an artillery unit, experienced more noise exposure from gunfire in service than post-service.

Therefore, in light of the above, the Board finds that a remand is necessary for another VA medical opinion to address the shift in hearing thresholds between the Veteran's enlistment and separation from service, and to address in greater detail the Veteran's post-service occupational noise exposure, and to again provide an opinion as to whether the Veteran has hearing loss and tinnitus that are related to his service.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA treatment records dated since April 2009, including but not limited to any psychiatry records from Dr. A.O.

2.  After the above development in paragraph 1 has been completed, schedule the Veteran for a VA examination by a VA psychiatrist or psychologist to determine the nature and etiology of his diagnosed psychiatric disorders, to include PTSD and depression.  The claims file, and any pertinent records contained in the Virtual VA eFolder or other electronic claims file, must be reviewed in conjunction with the examination.  All testing deemed necessary must be conducted and results reported in detail.  

Based on the review and the examination, the examiner is asked to render an opinion as to whether it is at least as likely as not that any diagnosed psychiatric disorder is medically related to his service, to include his service in Vietnam, and his fear of hostile military action during that service.  

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.  

3.  After the above development in paragraph 1 has been completed, obtain a VA medical opinion to clarify the current nature and the etiology of the Veteran's hearing loss and tinnitus.  The complete claims folder must be provided to the examiner for review, and the examiner must note that the claims folder has been reviewed.  

The examiner should indicate whether it is at least as likely as not (meaning likelihood of at least 50%) that the Veteran's hearing loss and tinnitus had their onset in service, or are otherwise related to service.  In rendering the opinion, the examiner is asked to address the following:

a) The shift in hearing thresholds from enlistment to separation from service;

b) The specific nature and significance of the Veteran's post-service occupational and recreational noise exposure.
If the Veteran's hearing loss or tinnitus is not found to be related to service, please explain the rationale for such opinion.

As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).  The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

4.  Then, readjudicate the Veteran's claims.  If his claims remain denied, he should be provided with a Supplemental Statement of the Case (SSOC).  After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs