Citation Nr: 1325564 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 11-26 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depression, and nightmares. 2. Entitlement to service connection for diabetes mellitus, type II (DM), claimed as due to exposure to herbicides. 3. Entitlement to service connection for residuals, status post myocardial infarction (claimed as heart condition), claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to November 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that denied entitlement to service connection for the issues on appeal. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has accordingly characterized the mental health issue as shown on the title page. In connection with his appeal, the Veteran testified before a decision review officer (DRO) at the RO May 2011; he also testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2012. Transcripts of the hearings are associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. An acquired psychiatric disorder was not present in service or within one year after the Veteran's discharge from service, and any currently present acquired psychiatric disorder is not etiologically related to service. 2. DM was not present in service or within one year after the Veteran's discharge from service, and any currently present DM is not etiologically related to service. 3. A heart disability was not present in service or within one year after the Veteran's discharge from service, and any currently present heart disability is not etiologically related to service. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred in or aggravated by active duty, and the incurrence or aggravation of an acquired psychiatric disorder during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. DM was not incurred in or aggravated by active duty, and the incurrence or aggravation of DM during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. A heart condition was not incurred in or aggravated by active duty, and the incurrence or aggravation of a heart condition during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with the notice required under the VCAA, to include notice regarding the disability-rating and effective-date elements of his claims, by letter mailed in April 2010, prior to the initial adjudication of the claims. The Board also notes that service treatment records have been obtained, as well as pertinent VA and private medical records and Social Security Administration (SSA) records. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. The Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of the claimed disabilities on appeal. However, VA need not conduct an examination with respect to the claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claims. See 38 C.F.R. § 3.159(c) (4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case, as there is no indication that the Veteran has diagnoses of acquired psychiatric disorder, DM, or a heart condition related to his service. Thus remand for a VA examination is not necessary. Additionally, the Veteran presented testimony in support of his claim before the undersigned. The provisions of 38 C.F.R. § 3.103(c) (2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the April 2012 hearing, the undersigned complied with the requirements set forth in Bryant. Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c) (2) (2012), nor have they identified any prejudice in the conducting of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. Thus, the duties to notify and assist have been met. Accordingly, the Board will address the merits of the claims. Legal Criteria 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; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a psychosis, diabetes mellitus, or certain heart conditions to a degree of 10 percent within one year from the date of termination of such service, such diseases shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The law also establishes a presumption of service connection for diseases associated with exposure to certain herbicide agents. The law also provides a presumption of exposure for veterans who served in the Republic of Vietnam ("Vietnam"). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). If a veteran was exposed to an herbicide agent during his or her active military service, certain diseases shall be service-connected if the disorder became compensably disabling at any time after the active military service. See 38 C.F.R. § 3.307(a) (6); 38 C.F.R. § 3.309(e). Specifically, if a veteran served on active duty in Vietnam during the Vietnam era (beginning on February 28, 1961, in the case of a veteran who served in Vietnam during that period, or beginning on August 5, 1964, and ending on May 7, 1975, in all other cases), the veteran is presumed to have been exposed to herbicides, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that military service. The last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in Vietnam during the period beginning on February 28, 1961, and ending May 7, 1975. "Service in the Republic of Vietnam" includes military service in the waters offshore and military service in other locations if the conditions of the military service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a) (6) (iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). It is established law that a veteran must have set foot on the land mass of Vietnam, or have been present in the inland waterways of that country during the statutory period (so-called "brown water" naval activity) in order to be considered to have had qualifying military service in Vietnam and, in turn, presumed exposure to herbicides. See Haas, 525 F.3d 1168. VA's General Counsel has held that service on a deep-water naval vessel off the shores of Vietnam may not be considered qualifying military service in Vietnam. VAOPGCPREC 27-97 (July 23, 1997). VA reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam ("blue water" versus "brown water")) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. See 66 Fed. Reg. 23166 (May 8, 2001). Thus, VA made a distinction between military service offshore ("blue water") and those veterans (referred to as "brown water" veterans) who served aboard smaller river patrol and swift boats that operated on the brown-colored rivers, canals, estuaries, and delta areas making up the inland waterways of Vietnam. Brown water Navy and Coast Guard veterans receive the same presumption of herbicide exposure as veterans who served on the ground in Vietnam. VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 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 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). Analysis The Veteran filed the instant claims for service connection in April 2010. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, DM, and a heart condition as he believes the conditions are related to his active duty service. He asserts, and testified before the undersigned, that he was under a lot of job stress and anxiety in his position in communications while in service and was exposed to herbicides from the ships returning from Vietnam. Specifically, he contends that the stress of his high security job caused his psychiatric disabilities and exposure to Agent Orange caused his DM and heart condition. The Veteran's DD Form 214 and service personnel records show no foreign service, to include no service in Vietnam. Thus, there is no evidence to support his contentions that he served in Vietnam, and he cannot be considered present in the inland waterways of that country during the statutory period (so-called "brown water" naval activity). The Veteran is not presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307(a) (6) (iii). With respect to whether service connection is warranted on a direct basis, the Board notes that the Veteran's service treatment records do not show complaints or diagnoses of psychiatric disorders, DM, or a heart condition. A release to inactive duty (RID) examination report in October 1968 showed normal heart and psychiatric clinical evaluations. Private treatment records show that the Veteran had a myocardial infarction in May 1998, nearly 30 years after separation from service. As for post-service medical evidence, the record is replete with VA medical center reports starting in 1999 that detail the Veteran's diagnoses of PTSD, depression, panic disorder, anxiety, DM, and coronary artery disease (CAD). Specifically, a VA mental health note in October 2009 showed that the Veteran reported that he went to Vietnam on several missions during 1967 to 1968 and that his job was to "kill people". As noted above, the Veteran was afforded hearings before a DRO in May 2011 and before the undersigned in April 2012. During these hearings the Veteran testified that his military position was of a yeoman seaman, basically entailing clerk-type work in communications and checking records. He testified that his position was stressful. He also stated that he would board landing crafts that were used for transporting supplies back and forth to Vietnam, up the shore. He asserted that it was possible that Agent Orange may have been aboard those crafts. He also asserted that he was "sure" he handled the messages regarding a total of 21 men being killed in 1968. He also noted a 1967 service treatment record in which it was noted that he had a cold for a month and was recently coughing up blood. The Veteran also submitted a statement received by the RO in July 2010, attesting to the high security communications job he had in service. He also stated that he would board ships deploying for Vietnam. After reviewing the evidence of record, the Board finds a preponderance of the evidence to be against the Veteran's claims of entitlement to service connection for an acquired psychiatric disability, DM, and a heart condition. The Board finds that the record does not show an acquired psychiatric disability, DM, or heart condition existed in service; that such disabilities were manifested within one year after the Veteran's discharge from service; or that any acquired psychiatric disability, DM, or heart condition has existed during the pendency of this claim is etiologically related to service. That is, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that in regard to the aforementioned service treatment record demonstrating complaints of coughing up blood in 1967, this appears to have been an acute and transitory episode as no disorders were recorded at the time of his RID examination. The Veteran was not diagnosed with psychiatric disabilities or DM and did not have his myocardial infarction until many years after service. This time lapse between the conclusion of his military service and the onset of his symptoms provides compelling evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran has also failed to show continuity of symptomatology during the many years since service to otherwise support these claims. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). The Board has accordingly considered the lay evidence offered by the Veteran to VA in which he asserted his belief that his psychiatric disabilities, DM, and heart condition are related to service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). To the extent that the Veteran's assertions are offered to establish a relationship between current claimed disabilities and service, such evidence must fail. The matter of medical etiology, or relationship-the matter on which these claims turn-is within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to be other than a layperson without the appropriate medical training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Moreover, to the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg, the question of causation here involves a more complex relationship that the Veteran is not competent to address. The Board notes that it has found the Veteran to be competent to testify in regard to the onset and continuity of symptomatology. However, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency, "a legal concept determining whether testimony may be heard and considered," and credibility, "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). As noted above, the Veteran reported in a mental health note in October 2009 that he went to Vietnam on several missions during 1967 to 1968 and that his job was to "kill people". The evidence of record to include his DD Form 214, personnel records, and testimony before a DRO and the undersigned, show that these statements are false. Moreover, there is no documentation to support the contention that he served in Vietnam; hence, the Board does not find the Veteran credible and the lay assertions in this regard have no probative value. Furthermore, any diagnoses of PTSD, or any other psychiatric disorder, based upon an inaccurate factual background provided by the Veteran would also have no probative value. In addition, the Veteran's lack of credibility regarding his service in Vietnam not only clearly calls in to question his allegations of presumed exposure to Agent Orange, but also his report of a direct exposure to Agent Orange when he alleged that he boarded landing crafts during service that were used for transporting supplies back and forth to Vietnam, up the shore. Once again, because the Veteran is deemed not credible with respect to the events surrounding his military service, his current recollection of events also has no probative value with respect to the claims of service connection for Diabetes Mellitus and a heart disorder. Accordingly, this claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for residuals, status post myocardial infarction (claimed as heart condition) is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs