Citation Nr: 1320269 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-33 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for lumps on the arms. 2. Entitlement to service connection for a skin condition. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a psychiatric disorder other than PTSD, to include depression. 5. Entitlement to service connection for muscle weakness. 6. Entitlement to service connection for allergic rhinitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1967 to August 1969, including service in Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee Wisconsin, which denied entitlement to service connection for lumps in the arms, a skin condition, PTSD, rhinitis, and muscle weakness. The Veteran had requested the opportunity to appear at a Video Conference hearing before a Veterans Law Judge. However, he withdrew that request; the Board will therefore adjudicate the claim on the record. The claim of service connection for PTSD encompasses any mental illness, regardless of diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's psychiatric disability has been diagnosed as depression, and this disability is deemed part of the claim for service connection for PTSD. In April 2013, after the last supplemental statement of the case, and receipt of the appeal at the Board; the Veteran submitted copies of VA treatment and examination records. These were duplicates of records previously considered by the RO. Hence, no further action is required with regard to this evidence. Cf. 38 C.F.R. § 20.1304 (2012). The Veteran has raised the issues of entitlement to service connection for neck pain, numbness in the hands and feet, and hypertension. These issues have not been adjudicated by the RO and the Board, therefore, does not have jurisdiction over them. They are referred to the RO for appropriate action. FINDINGS OF FACT 1. In written communications submitted in April and May 2013, the Veteran withdrew from consideration on appeal the issues of entitlement to service connection for lumps on the arms, for a skin condition, and for PTSD. 2. The Veteran's depression is a result of his military service. 3. A disability characterized by muscle weakness is not shown to have been incurred in or aggravated by military service. 4. Allergic rhinitis is not shown to have been incurred in or aggravated by military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of entitlement to service connection for lumps on the arms, a skin condition, and PTSD have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for service connection for depression have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. The criteria for service connection for a disability manifested by muscle weakness have not been met. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for service connection for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Inasmuch as this decision grants the claim for entitlement to service connection for depression, further notice or assistance is not required to aid the Veteran in substantiating that claim. With respect to the claims of service connection for muscle weakness and allergic rhinitis, under the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in March 2009 and June 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the service treatment records are silent as to any complaints or treatment for allergic rhinitis or similar conditions or for muscle weakness. Moreover, the post-service evidence does not indicate any complaints or treatment referable to allergic rhinitis or similar conditions or for muscle weakness until some twenty years or more following separation. Furthermore, the records contains no evidence suggesting a causal relationship between the current disability and active service. The Veteran has not reported why he thinks allergic rhinitis or muscle weakness should be service connected. In April 2010, he wrote that he did not recall claiming service connection for these conditions. In December 2009 he did express disagreement with the denial of service connection, but provided no reasons why these conditions were related to service. For these reasons, the evidence does not indicate that the claimed disabilities may be related to active service such as to require an examination, even under the low threshold of McLendon. 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 Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). Claims Withdrawn An appeal may be withdrawn in writing at any time before the Board promulgates a decision. Withdrawal of a substantive appeal may be made by the Veteran. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In April 2013 and May 2013, the Veteran submitted written statements in which he withdrew from his appeal the following issues: entitlement to service connection for lumps on the arms, entitlement to service connection for a skin condition, and entitlement to service connection for PTSD. As there remains no allegation of error of fact or law for appellate consideration with respect to these claims, the Board does not have appellate jurisdiction to review them. 38 U.S.C.A. § 7105. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). A lay person is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). A Veteran bears the "'evidentiary burden' to establish all elements of his claim," including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Claimed Exposure to Agent Orange Exposure to certain herbicide agents, include the one commonly referred to as Agent Orange, shall be presumed for any Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975). 38 U.S.C.A. § 1116(f). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, 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). 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010). Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease. 38 U.S.C.A. § 1116(b)(1). VA's Secretary has determined that a presumption of service connection based on exposure to certain herbicides, including Agent Orange, used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 41442-41449 and 57586-57589 (1996); 67 Fed. Reg. 42600- 42608 (2002); 68 Fed. Reg. 27630-27641 (2003); 72 Fed. Reg. 32395-32407 (2007). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet App 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Facts and Analysis Depression On a VA examination in September 2010, the Veteran reported that he was attending individual and group therapy bi-weekly and was taking an anti-depressant. He experienced periods of severe depression, occurring on a more regular basis in the past couple of years, feeling "really down" two or three days per week. At these times he was very pessimistic, agitated, and irritable, with middle insomnia and early morning waking as well as suicidal ideation related to unanswered questions about Vietnam. He had served as a tank mechanic in Vietnam and although he was not technically involved in fighting, he had to travel to forward areas in order to repair tanks and experienced enemy attacks as a result. He tended to be a loner and was quick-tempered and noted that he drank on a fairly regular basis. He had a short attention span and was easily distracted, but his thought process and content were unremarkable. He had difficult staying asleep at night and reported panic attacks once or twice week as well as racing thoughts and problems with short-term memory. He described specific stressor incidents in service including a gunfight when he was on guard duty and seeing other troops who wore severed ears of enemy combatants on strings. He reported recurrent and intrusive recollections and efforts to avoid thoughts and feelings associated with the trauma. He reported feeling mistrustful of anyone he wasn't close to prior to his military service, including his family and found himself withdrawing from certain social situations. The examiner noted that the Veteran did not meet all of the diagnostic criteria for PTSD but clearly had moderate to severe depression most likely caused by the stressors experienced in Vietnam. On an August 2012 VA examination, the examiner noted the prior diagnosis of depressive disorder, NOS, with occupational and social impairment resulting in decreased work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Veteran's wife accompanied him to the examination and reported he had not "been there emotionally" for many years and spent his life working rather than being home with the family. The Veteran reported that he tended to avoid groups of people and reminders of his military experiences and had guilt and sadness regarding his time in Vietnam. He had significant feelings of depression, especially with the loss of his eyesight, which left him unable to work; his job had been his primary coping mechanism for the effects of his military service. The examiner opined that the Veteran's currently diagnosed depressive disorder was related, at least in part, to his military service and fear of hostile military activity during his time in Vietnam. Analysis The Veteran has described events in his military service which are consistent with the nature and circumstances of his service as shown in his personnel records. Specifically, he worked as a mechanic in Vietnam and his description of fear of hostile military activity, occasional guard duty, and incoming enemy fire are consistent with the experiences associated with his duties. Moreover, VA examinations in September 2010 and August 2012 have yielded competent medical diagnoses of Depressive Disorder. Both examiners attributed his diagnosed acquired psychiatric disability to his experiences in Vietnam. Unlike a diagnosis of PTSD, where the diagnosis is one of Depressive Disorder, specific verification of the stressor events is not required. In light of all of the evidence and affording the Veteran the benefit of any doubt which might remain, the Board finds that his current acquired psychiatric disability, diagnosed as depressive disorder, not otherwise specified, is the result of his service in Vietnam. No other psychiatric disability has been diagnosed or identified. Service connection is therefore warranted a psychiatric disability other than PTSD. Muscle Weakness The Veteran's service treatment records contain no discussion of any complaints, treatment, or diagnosis of muscle weakness at any time during service. Nor do the Veteran's written statements contain any assertions that he experienced symptoms of this disability in service or on a continuing basis since service separation. As previously noted, he has not explained why muscle weakness is related to service. After service, the Veteran discussed concerns about muscle weakness with his doctors on a few occasions. In January 1997 he reported that he felt he had lost some strength in his arms and legs to a mild degree, although it had not limited his activities. He had full range of motion and motor strength in all large joints and the provider did not diagnose any specific condition related to the Veteran's complaints. In April 1998 he reported that he felt his arms fatigued more easily when doing overhead work and that he had occasional discomfort in his right bicep, but otherwise, his strength was good. On physical examination, the strength in his shoulder was 5/5, as was the strength in biceps, triceps, wrist flexors, and grip. The provider did not diagnose any specific condition relative to the Veteran's complaints. In sum, there is no evidence of an injury in service or of any symptoms of muscle weakness in service. While the Veteran is presumed to have been exposed to herbicides such as Agent Orange while in Vietnam, muscle weakness as described by the Veteran is not a condition for which service connection can be established on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309. Moreover, with the exception of the Veteran's subjective perceptions in 1997 and 1998, there is no evidence that the Veteran has any disability manifested by muscle weakness. Notably, despite the Veteran's subjective complaints, the two medical providers found no pathology and offered no diagnosis of any condition related to muscle weakness. In a service connection claim, the threshold question is whether or not the Veteran actually has a current disability. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Here, there is no evidence of a current disability during, or proximate to, the claims period; therefore there cannot be any relationship to service, to include exposure to herbicides in Vietnam, and the claim must fail. Allergic Rhinitis The Veteran's service treatment records contain no references to any complaints, treatment, or diagnosis of allergic rhinitis or similar conditions at any time during service. Nor do the Veteran's statements contain any assertions that he experienced symptoms of this disability in service or on a continuing basis since service separation. After service separation, the Veteran was seen on a number of occasions for concerns about rhinitis, sinusitis, and upper respiratory conditions. A November 1986 X-ray of the Veteran's sinuses showed them to be normal. A November 2002 X-ray of the sinuses showed mild right ethmoid sinusitis and bilateral maxillary sinusitis. In April 2004 the Veteran was treated for a cough and chronic problems with a stuffy nose. The provider diagnosed allergic rhinitis and prescribed medication. In March 2005, the Veteran was seen for complaints of chronic rhinitis and nasal congestion. In August 2005, the Veteran was seen for complaints of chronic rhinitis and sinusitis, as well as chronic nasal obstructions. In January 2010 the Veteran was seen for a follow-up visit after having been in the emergency room for breathing problems. He was still having shortness of breath with exertion and coughing at night. He was using an albuterol inhaler only and not a Combivent inhaler. The provider diagnosed asthma and recommended additional testing including a chest X-ray. In February 2010, the Veteran experienced an acute exacerbation of asthma and was instructed in taking new medications. In October 2010, the Veteran was treated for complaints of difficulty breathing and wheezing and was diagnosed with an upper respiratory infection. With respect to the Veteran's claim of service connection for allergic rhinitis or any related condition, the Board concedes he has been diagnosed with the condition on multiple occasions since service. As stated, he is presumed to have been exposed to herbicides such as Agent Orange during his service in Vietnam. However, neither allergic rhinitis nor any similar or related condition is covered by the provisions for presumptive service connection under 38 C.F.R. §§ 3.307, 3.309. In addition, direct service connection for such a disability cannot be established because there is no evidence to link it to service. None of the Veteran's medical treatment providers have ever offered any opinion that the Veteran's allergic rhinitis is in any way related to his military service, to include exposure to herbicides and the Veteran has not even advanced a theory as to how current allergic rhinitis might be related to service. As there is no evidence to suggest that the Veteran's allergic rhinitis is related to his military service, the preponderance of the evidence is against the claim, and reasonable doubt does not arise. 38 U.S.C.A. § 5107(b). ORDER The appeal of the claim of entitlement to service connection for lumps on the arms is dismissed. The appeal of the claim of entitlement to service connection for a skin condition is dismissed. The appeal of the claim of entitlement to service connection for PTSD is dismissed. Entitlement to service connection for depression is granted. Entitlement to service connection for muscle weakness is denied. Entitlement to service connection for allergic rhinitis is denied. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs