Citation Nr: 1324953 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 11-26 387 ) 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 complete atrio-ventricular block, claimed as heart block. 2. Entitlement to service connection for pulmonary tuberculosis (PTB). 3. Entitlement to service connection for benign prostatic hypertrophy, claimed as prostate enlargement. 4. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status. ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran reportedly had active duty service from June 1944 to May 1945 with the Philippine Guerilla and Combination Service. The Veteran died in December 2011 and the appellant is the Veteran's widow. This matter came to the Board of Veterans' Appeals (Board) from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in November 2010, and a statement of the case was issued in August 2011. The Board notes that prior to his death, the Veteran perfected his appeal to the Board in September 2011. The Veteran's spouse has been substituted as the appellant. A supplemental statement of the case reflects that the RO found that the Veteran's spouse met the criteria for substitution in the matter of the Veteran's appeal which was pending at the time of his death. See 38 U.S.C.A. § 5121A. 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. A heart disorder, to include complete atrio-ventricular block, claimed as heart block, was not manifested during the Veteran's active duty service, nor within one year thereafter; and is not otherwise related to the Veteran's active duty service. 2. Pulmonary tuberculosis was not manifested during the Veteran's active duty service, nor within three years thereafter; and is not otherwise related to the Veteran's active duty service. 3. Benign prostatic hypertrophy, claimed as prostate enlargement, was not manifested during the Veteran's active duty service, and is not otherwise related to the Veteran's active duty service. 4. Service connection is not currently in effect for any disability; a service-connected disability did not render the Veteran unable to care for his daily personal needs without assistance from others, or unable to protect himself from the hazards and dangers of daily living on a regular basis, nor was he substantially confined to his dwelling, the immediate premises, a ward or clinical area of an institution due to a service-connected condition. CONCLUSIONS OF LAW 1. A heart disorder, to include complete atrio-ventricular block (claimed as heart block) was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred or aggravated by active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Pulmonary tuberculosis was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to have been incurred or aggravated by active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. Benign prostatic hypertrophy was not incurred or aggravated in service. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). 4. The criteria for entitlement to SMC by reason of being in need of the aid and attendance of another person or on account of being housebound have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102 , 3.156(a), and 3.326(a), 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); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in July 2010 and May 2011 VCAA letters, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard 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' 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. In this case, the RO provided VCAA notice to the Veteran in July 2010, which was prior to the October 2010 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. 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). In the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate his claims. The July 2010 and May 2011 letters also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. In sum, prior to his death, the Veteran received all essential notice, has had a meaningful opportunity to participate in the development of the claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Following the Veteran's death, and application for substitution, the appellant was furnished a supplemental statement of the case in March 2013. The appellant has had the opportunity to participate in the development of the claims, and has submitted written argument on two occasions in support of the appeal. In any event, the appellant has not demonstrated any prejudice with regard to the content of VCAA notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Moreover, the appellant has not pointed to any violation of due process in connection with her continuing the appeal as the substitute claimant in place of the late Veteran. Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Although service department records from the Philippine Army have been secured; service treatment records were determined to be unavailable. A verification from the National Personnel Records Center (NPRC) that the Veteran's service medical and clinical records are unavailable is of record. Copies of post-service treatment records from the Veteran's private providers have been obtained. By letter dated September 2010, the Veteran was asked to provide original copies of all medical records received by VA. Additionally, the Veteran was asked to complete VA Form 21-4142, Authorization for Release of Information, and provide the address, dates of treatment, and conditions for which he was treated. The Veteran failed to respond. "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). Insofar as the Veteran did not provide the information and/or releases that were necessary in order for VA obtain the Veteran's private treatment records, those records could not be obtained and the Board finds that no additional assistant in this regard is required. The Board notes that VA did not provide the Veteran with a medical examination in regard to his claims of service connection for PTB, atrio-ventricular block, and enlarged prostate. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. However, no examination is necessary in order to adjudicate this Veteran's claims. As will be discussed below, there is no credible evidence that the Veteran had such disabilities in service. While there is a current diagnosis of PTB, atrio-ventricular block, and enlarged prostate, without credible evidence of an in-service incurrence or probative evidence that suggests a nexus to service, no examination is required. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. §§ 3.159(b), 20.1102 (2011); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Service Connection Claims for complete atrio-ventricular block, pulmonary tuberculosis, and benign prostatic hypertrophy The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). 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). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as heart disease, are presumed to have been incurred in service if manifest to a compensable degree following discharge from service (within one year for heart disease). 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Furthermore, tuberculosis may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within three years after termination of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Evidence of activity on comparative study of x-ray films showing pulmonary tuberculosis within the 3-year presumptive period provided by section 3.307(a)(3) will be taken as establishing service connection for active pulmonary tuberculosis subsequently diagnosed by approved methods. 38 C.F.R. § 3.371(a). A diagnosis of pulmonary tuberculosis will be acceptable only when provided in (1) service department records; (2) VA medical records of examination, observation or treatment; or (3) private physician records on the basis of that physician's examination, observation or treatment of the Veteran and where the diagnosis is confirmed by acceptable clinical, x-ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment. 38 C.F.R. § 3.374; Tubianosa v. Derwinski, 3 Vet. App. 181, 184 (1992). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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"). A Veteran 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) (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). The Board has reviewed all the evidence in the Veteran's claims file. 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 Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). An Affidavit for Philippine Army Personnel, Form 23, completed at discharge from service, and signed June 6, 1946, noted the Veteran had no wounds or illnesses incurred during service. The Veteran submitted a number of affidavits and certifications from individuals claiming to have treated the Veteran for heart block and PTB while in service. An affidavit dated March 17, 1945 showed the Veteran was diagnosed with the PTB and being treated at the 27th Station Hospital. A March 20, 1945 document showed the Veteran was diagnosed with heart block disease and PTB and was treated at the 26th Station Hospital. A Medical Certification dated April 1, 1945 detailed the Veteran was admitted to the 27th Station Hospital from February 17, 1945 through March 16, 1945 for heart block and PTB. A May 1945 document showed the Veteran was treated for PTB and prostate enlargement at the 26th Station Hospital. A May 30, 1945 certification stated the Veteran suffered from prostate enlargement and was under treatment at the 26th Station Hospital. A February 20, 1946 Certificate of Hospitalization listed that the Veteran was hospitalized from November 30, 1944 to December 1, 1944 at the 37th Field Hospital; December 1, 1944 to January 21, 1945 at the 73rd Field Hospital; January 21, 1945 to February 7, 1945 in the 1st Convalescent Hospital; February 7, 1945 through March 1, 1945 at the 1st [repl Bn] and from March 1, 1945 at the 44th Hospital. A May 1946 document titled Disposition of Patient notes that the Veteran was hospitalized from February 15, 1945 through March 16, 1945 at the 1st General Hospital. Following service, the earliest record of treatment for any of the claimed disabilities was from 2003. The Veteran submitted yearly x-ray reports from his private medical physician from 2003 through 2009. An October 2003 radiology report diagnosed PTB, bilateral; pneumonitis, right; and aorta atherosclerotic. The x-ray report further showed fibrohazed infiltrates in both upper lung fields, hazy densities in the right mid-lung field, a normal heart, calcified aortic knob, trachea at midline, and hemidiaghragm and costophrenic angles intact. An April 2004 x-ray showed few fibrohazed infiltrates at the right upper lung; blunted right costophrenic sulcus; atherosclerotic aorta; and normal heart size and configuration. Atherosclerotic aorta, minimal Koch's infiltrates of the right upper lung, and minimal pleural effusions and/or thickening of the right costophrenic sulcus were diagnosed. A follow-up x-ray was performed in May 2005 and showed no significant changes of the minimal Koch's infiltrates at the right upper lung, most likely stable, and an atherosclerotic aorta. A January 2006 x-ray showed minimal pleural effusions of the right lung and an atherosclerotic aorta. An April 2006 x-ray showed the same findings as the May 2005 x-ray. In May 2005, the Veteran was diagnosed with prostatomegaly and benign prostatic hypertrophy (BPH). A cystoscopy was performed. An ultrasound in June 2005 found an enlarged prostate gland with an ill-defined prostate. A March 2007 x-ray showed no significant changes of the minimal Koch infiltrates at the right upper lung, most likely residual; the rest of the lung field was clear. Same status continued of the obscured right costophrenic sulcus. An atherosclerotic aorta was shown. A July 2008 x-ray showed minimal remaining infiltrates at the right upper lung field, blunted right costophrenic sulcus, prominent vascular markings, and a normal heart. Minimal remaining PTB of undetermined activity and minimal pleural thickening at the right costophrenic sulcus were diagnosed. The September 2009 x-ray showed no significant changes from the July 2008 x-ray. Medical records from October 2009 showed a complete right bundle bunch block. In August 2010, the Veteran was hospitalized for pneumonia and complete atrio-ventricular block. Medical records also showed the Veteran was treated for BPH and a permanent pacemaker was installed. In November 2010, x-rays showed the Veteran had pulmonary congestive changes, bilateral pleural effusions, pneumonia, cardiomegaly, and an atherosclerotic aorta. Additionally, an electrocardiogram (EKG) test showed third degree atrio-ventricular block. The Veteran was again hospitalized for these conditions in December 2010. There is no medical evidence or opinion of record which relates that Veteran's claimed disabilities to his active duty service. In fact, there is no etiology given for any of his claimed disabilities. After reviewing the record, the Board is unable to find that there is credible evidence establishing an illness or disability in-service. Although the Veteran submitted a number of certifications and affidavits attesting to his treatment and hospitalizations for PTB, enlarged prostate, and heart block, these are contradictory to the Form 23 provided by the NPRC and indicated that as of June 1946, the Veteran had no record of wounds or illness. The Form 23 is an official record furnished to VA from official sources, and the Board therefore finds the information set forth in this document to be highly credible. It also serves as strong probative evidence against the claims of in-service incurrence, as the Form 23 is a contemporaneous report from separation. Had the Veteran received treatment and been hospitalized on the various occasions suggested by the documents submitted by the Veteran, then it is reasonable to expect that at least some of treatments/hospitalizations claimed by the Veteran would have been reported in this official document. The authenticity and credibility of the documents submitted by the Veteran is in question. The Board again notes that the Veteran did not furnish the originals of the documents when requested by the RO. This further raises suspicions regarding the authenticity of the documents submitted by the Veteran. Additionally, the certifications and affidavits are in some instances contradictory of themselves. Specifically, the evidence asserts the Veteran was hospitalized from February 1945 to March 1945; however, the records are inconsistent. The April 1, 1945 Medical Certification showed the Veteran was hospitalized at the 26th Station Hospital, while the February 20, 1946 Certificate of Hospitalization lists the Veteran's hospitalizations with the [Repl Bn] and 44th Hospital; and still yet, the May 1946 Disposition of Patient shows the Veteran was treated at the 1st General Hospital. Therefore, the Board places greater probative value to the accuracy of the information provided by the June 1946 Affidavit for Philippine Army Personnel (which showed no in-service wound or illness). As such, the first credible diagnosis of PTB was in 2003. As a result, the Veteran is not entitled to the benefit of the presumptive provision because it is not shown that tuberculosis was manifested within three years after discharge from active service. 38 U.S.C.A. § 1113; 38 C.F.R. § § 3.307, 3.309. The first credible diagnosis of prostate enlargement was in 2005; and the first credible diagnosis of atrio-ventricular block was in 2010. With regard to the claim for atrio-ventricular block, the Board notes the Veteran is not entitled to the benefit of the presumptive provision, because it is not shown that a heart disease was manifested within one year after discharge from active service. 38 U.S.C.A. § 1113; 38 C.F.R. § § 3.307, 3.309. With regard to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d). Currently, there is no credible medical evidence of record reflecting that the Veteran had PTB, prostate enlargement, and atrio-ventricular block in service and no medical opinion of record offering an etiology relating his current PTB, prostate enlargement, and atrio-ventricular block to his active duty service. The Board acknowledges the Veteran's contention that his PTB, prostate enlargement, and atrio-ventricular block are related to his active duty service. However, there is no credible evidence of record to support this contention. While the Veteran was competent to provide testimony or statements relating to symptoms or facts of events that he has observed and are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). He may sincerely believe that his PTB, prostate enlargement, and atrio-ventricular block are proximately due to, the result of, or aggravated by his service, however, as a lay person, he is not competent to render a medical diagnosis or an opinion concerning medical causation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (finding that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (noting that certain disabilities are not conditions capable of lay diagnosis). In sum, the Board finds that the preponderance of the evidence indicates that the Veteran's PTB, prostate enlargement, and atrio-ventricular block were not present until many years following discharge from service, and the Veteran's PTB, prostate enlargement, and atrio-ventricular block are not related to his military service. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). Special Monthly Compensation The Veteran is seeking entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate due to the impact of his numerous conditions. With respect to payment of special monthly compensation, compensation at the aid and attendance rate is payable when the Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b)(3). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers inherent in his daily environment. "Bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). Special monthly compensation is also payable where the Veteran has a single service-connected disability rated as 100 percent, without resort to individual unemployability, and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a result of his service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). As discussed above, service connection is not currently in effect for any disability. Under these circumstances, the Veteran does not meet the basic eligibility requirements for entitlement to SMC , and his claim, therefore, must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER The appeal is denied as to all issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs