Citation Nr: 1320753 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-47 275A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for prostate cancer. 3. Entitlement to service connection for rectal bleeding. 4. Entitlement to service connection for hypertension. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1953 to May 1964, with subsequent service in the Naval Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's right knee disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The preponderance of the evidence shows that the Veteran's prostate cancer was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 3. The preponderance of the evidence shows that the Veteran's rectal bleeding was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 4. The preponderance of the evidence shows that the Veteran's hypertension was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 5. Service connection is not in effect for any disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The criteria for service connection for rectal bleeding have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 5. The criteria for TDIU have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.16(a),(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through VCAA letters dated October 2009 and November 2009, the Veteran was informed of the information and evidence necessary to substantiate the claims for service connection and TDIU. He was also advised of the types of evidence VA would assist in obtaining, as well as his own responsibilities as to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the veteran's service and the disability, 4) degree of disability, and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA letter to the Veteran was provided in October 2009 prior to the initial unfavorable decision in January 2010. In this case, the Veteran was advised of the criteria for rating a disability and those governing effective dates of awards in the October 2009 letter, prior to the most recent adjudication by the RO, which cures any timing deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. In this decision, the Board has found as a fact that there was no in-service injury or disease, including no chronic in-service symptoms of hypertension or right knee arthritis. Because there is no in-service injury or disease to which competent medical opinion could relate a current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims for service connection. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disability would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's claimed disabilities and his military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The United States Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of both in-service injury or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Service Connection - Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Pertinent to the case at hand, arthritis and hypertension are among the list of chronic diseases listed within 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection - Right Knee The Veteran contends that his right knee arthritis is causally related to service. The Veteran's service treatment records are silent regarding any right knee injury, complaint, or treatment. The May 1964 separation report of medical examination showed clinically normal lower extremities. An October 1973 report of medical examination related to the Veteran's Naval Reserve service also showed clinically normal lower extremities. On the October 1973 report of medical history, the Veteran also reported no complaints of arthritis, rheumatism, bursitis, bone, joint, or other deformity, lameness, or trick or locked knee. Post-service, a June 2007 private treatment record shows X-ray confirmation of arthritic changes of the right knee. The examiner noted that if it is too painful he will need to see an orthopedic physician. The record shows no earlier diagnosis or complaint of a right knee disability. The Veteran contends he acquired right knee arthritis in active service or within the presumptive period. He is not shown to possess any medical expertise and therefore any medical opinions he asserts are not of significant probative value. He is competent to report his symptoms, but his current assertions of entitlement to service connection for a right knee disability are contradicted by the medical reports from service and the ensuing years, as described above. Contemporaneously recorded documents are considered to be a more accurate reflection of the Veteran's condition at that time, than a history he provides forty five years after the events about which it relates. The Board thus finds the Veteran's report not credible and concludes that those records are more probative as to the onset of the disability. The Board is thus left with a record that fails to show any in-service disease or injury to which the claimed disability is competently indicated to be related, or which shows chronic symptoms of arthritis since service or within one year after separation from service. In view of this, a basis upon which to establish service connection for right knee arthritis has not been presented. As the preponderance of the evidence is against the claim for service connection for right knee arthritis, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection - Prostate Cancer and Rectal Bleeding The Board acknowledges that the Veteran experiences rectal bleeding as a residual of his prostate cancer. As both claims stem from the same factual basis, the Board will address both issues together. The Veteran's service treatment records are silent regarding any complaint, treatment, or diagnosis of prostate cancer or rectal bleeding during service. The Veteran's May 1964 separation report of medical examination notes a clinically normal anus and rectum. Post-service the Veteran was first diagnosed with prostate cancer in February 2003. The Veteran's rectal bleeding occurred as a residual of the Veteran's prostate cancer. The only evidence of record relating the Veteran's prostate cancer and rectal bleeding to his service are the Veteran's lay assertions that the disabilities are related to his active service. The Board first observes that the Veteran has not specifically reported any symptoms of prostate cancer or rectal bleeding during service. The Veteran's medical examinations were normal during and after service, until a diagnosis of prostate cancer in February 2003. In resolving the vague inconsistent history provided by the Veteran, the Board finds greater probative value and reliability to the Veteran's recorded recollections on his separation examination and his first complaints of prostate cancer symptoms in February 2003, as these events were contemporaneous in time to the events in question and bear a greater indicia of reliability as they were made in the context of seeking appropriate medical treatment. See generally Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). The Veteran's current statements were made many decades after the events in question, are not consistent with prior findings, which appear reliable. The Board is left with a record that fails to show any in-service symptoms, disease, or injury to which the claimed disability is competently indicated to be related. In view of this, a basis upon which to establish service connection for prostate cancer and rectal bleeding has not been presented. As the preponderance of the evidence is against the claim that the Veteran's current prostate cancer and rectal bleeding are related to an injury, disease, or event in service, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Service Connection - Hypertension Upon entry into service, the Veteran's blood pressure was noted as 118/72 recumbent and 110/74 standing. During two May 1964 separation examinations, the Veteran's blood pressure was found to be 112/68 and 110/70 sitting. The record contains no complaints of symptoms of hypertension during service and no high blood pressure readings during service. During an October 1973 Naval Reserve report of medical examination, the Veteran's blood pressure was 98/72 sitting. Post-service, the record is silent for any complaints, treatment, or diagnosis of hypertension until 2000. A March 2003 private treatment record notes that the Veteran has had hypertension for three years. The Veteran contends that his hypertension began during service or within the presumptive period. Again, he is not shown to possess any medical expertise and therefore any medical opinions he asserts are not of significant probative value. He is competent to report his symptoms, but his current assertions do not indicate anything more than a broad and vague statement that he has hypertension related to service. The medical evidence is significantly contradictory to this statement, showing normal blood pressure readings throughout service and a decade after service. Additionally, treatment records show a history of hypertension with onset in 2000. Contemporaneously recorded documents are considered to be a more accurate reflection of the Veteran's condition at that time, than a history he provides more several decades after the events about which it relates. Additionally, lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value. Statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Therefore, the service treatment records and private post-service treatment records are accorded more probative value. The Board is thus left with a record that fails to show any in-service disease or injury to which the claimed disability is competently indicated to be related, or which shows chronic symptoms of hypertension since service or within a year after separation from service. In view of this, a basis upon which to establish service connection for hypertension has not been presented. As the preponderance of the evidence is against the claim for service connection for hypertension, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Agent Orange The Board acknowledges the Veteran's request for an Agent Orange examination. The Veteran contends that he has a skin condition, other than chloracne, that may have resulted from Agent Orange exposure during his Vietnam service. Under 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e), as to Veterans who served in Vietnam during a certain time period, selected diseases may be presumed to have resulted from exposure to herbicide agents such as Agent Orange. According to the Veteran's service records, he served in the Republic of Vietnam during the Vietnam Era, therefore, his exposure to toxic herbicides is presumed. See 38 U.S.C.A. §§ 1116, 1154. By requesting an Agent Orange examination, the Board presumes that the Veteran is asserting that any or all of his disabilities were due to exposure to herbicides during service. The Board notes however that the Veteran's records do not indicate service in the Republic of Vietnam or any other area where exposure to herbicides is presumed. The record does not contain any other positive evidence indicating an exposure to herbicides. Without an underlying exposure to herbicides, an Agent Orange examination would be fruitless as the examiners would be basing their examination on an inaccurate history. Therefore, the Board need not consider each individual claim on the basis of Agent Orange exposure. TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran contends that he is unable to secure substantially gainful employment due to his age, prostate cancer, hypertension, rectal bleeding, and right knee arthritis. The Board notes that when determining entitlement to TDIU, only the Veteran's service-connected disabilities without regard to the Veteran's age or non-service connected disabilities may be considered. Here, the Veteran is not service-connected for any disability. Therefore, he does not meet the schedular rating criteria for TDIU. 38 C.F.R. § 4.16(a). In sum, the Board finds that the Veteran's lack of service-connected disabilities precludes him from meeting the schedular requirements for TDIU. Therefore, the criteria for TDIU have not been met and the Veteran's claim is denied. ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for rectal bleeding is denied. Entitlement to service connection for hypertension is denied. Entitlement to TDIU is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs