Citation Nr: 1323400 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-42 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 10 percent disabling. 2. Entitlement to service connection for brain aneurysm, to include as secondary to herbicide exposure during service. 3. Entitlement to service connection for colon cancer, to include as secondary to herbicide exposure during service. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his former spouse ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971, including service in the Republic of Vietnam from August 1969 to July 1970. His awards include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his former spouse testified at a video-conference hearing in March 2011 before the undersigned Veterans Law Judge (VLJ). A transcript of the testimony is in the claims file. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issues on appeal. In the decision below, the Board grants a 30 percent rating for PTSD. However, additional development is required to determine whether an even higher rating is warranted. Therefore, the issue of entitlement to an evaluation in excess of 30 percent for service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD was manifested by symptoms including chronic sleep impairment, nightmares twice weekly, and some avoidant behavior. 2. The Veteran's colon cancer manifested many years after his discharge from service and there is no competent evidence even suggesting the condition is etiologically related to service. 3. The Veteran's brain aneurysm manifested several years after his discharge from service and there is no competent evidence even suggesting the condition is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). 2. The requirements for establishing service connection for colon cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The requirements for establishing service connection for brain aneurysm have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, an April 2010 letter sent prior to the decision on appeal provided notice regarding what information and evidence is needed to substantiate his service connection claims, including as a result of herbicide exposure, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, private treatment records, articles, lay statements, and hearing testimony. The Board acknowledges that the Veteran has not been provided with a VA examination in conjunction with his service connection claims. However, as there is no competent evidence of the conditions in service or the presumptive period, and none of the medical evidence even suggests his conditions are directly related to service, VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ identified the issues, advised the Veteran of the basis for the denial, and suggested he submit nexus opinions. Moreover, the Veteran volunteered his treatment and symptom history. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that there is no prejudice to the Veteran in deciding this case and that no further action pursuant to Byrant is necessary. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process and has done. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's PTSD is currently rated 10 percent disabling. The Veteran filed a claim for an increased rating in February 2010. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). Ratings are assigned according to the manifestation of particular symptoms. Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). At the April 2010 VA examination, the Veteran reported nightmares, frequent sleep disturbance, avoiding war movies and news of the current war, avoiding crowds, and isolating himself from others. The VA examiner diagnosed mild to occasionally moderate PTSD with a Global Assessment of Functioning (GAF) score of 65 to 70. Medical evidence shows that the Veteran was not seeking or receiving mental health treatment. In lay statements dated March 2011 the Veteran and his former spouse described him as a "loner" who has difficulty being in crowds. His former spouse, a nurse who married the Veteran two years after his discharge from service, reported that when they were married in the 1970s the Veteran would dive to the floor when he heard a car backfire, had nightmares and night sweats, and exhibited symptoms of depression. The Veteran testified at his hearing that he had nightmares twice a week and sleeps at most three to four hours per night. He endorsed occasional, infrequent panic attacks. Symptoms such as chronic sleep impairment and occasional panic attacks, while generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, fall squarely within the criteria for a 30 percent rating. Thus, the Board finds that the criteria for a 30 percent evaluation have been met during the course of the appeal. However, as noted in the Introduction, additional development is necessary before a decision can be rendered on whether an even higher rating is warranted at any point during the appeal. Thus, the issue of entitlement to an evaluation in excess of 30 percent for PTSD is being remanded and will be addressed in the Remand section below. III. Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cancer or brain hemorrhage or thrombosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, service connection for certain diseases may be granted based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. Presumed exposure to an herbicide exists for a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, that included service in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Initially, the Board finds that the Veteran's service in Vietnam has been confirmed, and he is therefore presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(ii). A. Colon Cancer The Veteran contends that his colon cancer is the result of exposure to Agent Orange while serving in Vietnam. December 2009 VA treatment records show a colon biopsy that revealed a tubulovillous adenoma described as a colon mass. A January 2010 private treatment record shows a diagnosis of malignant neoplasm of the cecum, which was removed in a laparoscopic partial colectomy. While the Veteran's exposure to Agent Orange has been conceded, neither colon cancer nor malignant neoplasm of the cecum are conditions that VA has determined to have a positive association with exposure to herbicides. The presumptive provisions of 38 C.F.R. § 3.307 are specifically limited to enumerated chronic diseases listed in 38 C.F.R. § 3.309(e), and colon cancer and malignant neoplasm of the cecum are not among the enumerated diseases. Therefore, his claim for service connection for colon cancer on a presumptive basis as due to Agent Orange exposure must be denied. 38 C.F.R. §§ 3.307, 3.309(e). Moreover, the Veteran does not contend and the evidence does not suggest that his claimed disability arose during service or within one year of service. Service treatment records are negative for any complaints, treatment, or findings referable to colon cancer. The Veteran specifically denied cancer and intestine trouble on the Report of Medical History completed for separation from service in 1971. The earliest medical evidence of record of the disability is a November 2009 VA treatment note indicating that, due to positive fecal occult blood test results, the Veteran needed a colonoscopy. The first mention of the tumor is the report of the subsequent colonoscopy and biopsy in December 2009. The Veteran testified at his hearing that no physician has indicated to him that his colon cancer is related to his herbicide exposure. There is no medical evidence of record suggesting a nexus between his colon cancer and service. The Board further notes that in accordance with section 3 of the Agent Orange Act of 1991, Pub. L. 102-4, 105 Stat. 11, the Secretary has entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. As required by the statute and agreement, the NAS submits a report to the Secretary every two years regarding the results of their review and summarization of the medical literature. In the latest report, NAS concluded that there remains inadequate or insufficient evidence of an association between exposure to herbicides and colorectal cancers. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, Update 2008, 75 Fed. Reg. 81332 (Dec. 27, 2010). Although the Veteran contends that his colon cancer is related to his herbicide exposure during military service, there is no indication that he has specialized training in diagnosing cancers or determining their etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the question of whether colon cancer is due to herbicide exposure falls outside the realm of common knowledge of a lay person. Such disability can have many different causes, thereby requiring medical expertise to determine the etiology. Thus, the Veteran's opinion on this question is not competent medical evidence. In sum, the Veteran does not contend and the evidence does not show his colon cancer manifested in service or within one year following discharge from service, and there is no medical evidence of record suggesting a connection between the Veteran's colon cancer and service, to include in-service exposure to herbicides. Accordingly, the preponderance of the evidence is against the claim and service connection for colon cancer is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for colon cancer. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. B. Brain Aneurysm The Veteran contends that his brain aneurysm is the result of exposure to Agent Orange while serving in Vietnam. The evidence establishes that the Veteran had a brain aneurysm repair in 1975. Specifically, VA treatment records show a reported history of brain aneurysm repair in 1975, and in his original claim the Veteran reported that in January 1975 he had brain surgery "due to an aneurysm that actually burst when I was on the operating table. The only thing that happened was I lost my smell." The Board notes the Veteran did not provide information concerning the facility where such occurred despite an April 2010 letter requesting information concerning his treatment for his claimed conditions. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Assuming for the sake of argument that such procedure did occur and that he has residual loss of smell, a brain aneurysm is not one of the conditions that VA has determined to have a positive association with exposure to herbicides. Therefore, his claim for service connection for brain aneurysm on a presumptive basis as due to Agent Orange exposure must be denied. 38 C.F.R. §§ 3.307, 3.309(e). Moreover, the Veteran does not contend and the evidence does not suggest that his claimed disability arose during service or within one year of service. Service treatment records are negative for any complaints, treatment, or diagnoses referable to a brain aneurysm, and the Veteran specifically denied dizziness, fainting spells, headaches, and a head injury on the Report of Medical History completed for separation from service in 1971. The earliest evidence of record of the disability is a November 2009 VA treatment note reporting a medical history of "brain aneurysm repair 1975." The Veteran testified at his hearing that no physician has indicated to him that his brain aneurysm is related to his herbicide exposure. There is no medical evidence suggesting a nexus between any extant residual disability and service. Although the Veteran contends that his brain aneurysm is related to his herbicide exposure during military service, as noted above, his lay opinion as to etiology of this complex medical question is not competent medical evidence. See Jandreau, supra. In sum, the Veteran does not contend and the evidence does not show his brain aneurysm manifested in service or within one year following discharge from service, and there is no medical evidence of record suggesting a connection between the Veteran's brain aneurysm and service, to include in-service exposure to herbicides. Accordingly, the preponderance of the evidence is against the claim and service connection for brain aneurysm is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for brain aneurysm. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER A 30 percent disability rating for PTSD is granted, subject to the law and regulations governing the payment of VA monetary benefits. Service connection for colon cancer is denied. Service connection for brain aneurysm is denied. REMAND The Board notes that additional development is necessary to determine whether a rating in excess of 30 percent is warranted for the Veteran's PTSD. The Veteran's PTSD was most recently assessed more than three years ago during the April 2010 VA PTSD examination. The testimony during the Veteran's hearing suggests that a new examination is necessary ascertain the current severity of the Veteran's disability. The most recent mental health treatment records in the claims file are dated December 2009. On remand, the Veteran should be given the opportunity to identify any providers who have treated him for his PTSD since that date. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any private or VA providers who treated him for PTSD after December 2009. After securing any necessary authorization, request any relevant records identified. 2. After the above has been completed, schedule the Veteran for VA mental health examination to determine the severity of his service-connected PTSD. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. 3. The RO/AMC should then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs