Citation Nr: 1325690 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-20 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), for accrued benefits purposes. 2. Entitlement to service connection for a liver disorder, for accrued benefits purposes. 3. Entitlement to service connection for a central nervous system disorder, for accrued benefits purposes. 4. Entitlement to service connection for a prostate disorder, for accrued benefits purposes. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), for accrued benefits purposes. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to June 1967. He died in February 2007. The appellant claims as the Veteran's widow. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs' (VA) Regional Offices (RO) in Portland, Oregon. In March 2013, a hearing before the undersigned Veterans Law Judge was conducted; a transcript of that hearing is of record and is located in the Virtual VA file. The U.S. Court of Appeals for Veterans Claims (Court) has held that a claimant is generally not competent to diagnose his own psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). In this case, the Veteran's psychiatric claim has been developed as a one for PTSD. Pursuant to Clemons, the Board has expanded the issue to include any diagnosed psychiatric disorder. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. In May 2010, the appellant filed a claim for entitlement to service connection for the cause of the Veteran's death. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In March 2013, prior to the promulgation of a decision in the appeal, the Board was notified by the appellant that she wanted to withdraw the claims for service connection for accrued benefits purposes for COPD, a central nervous system disorder, and a prostate disorder. 2. The Veteran served in Vietnam and it is presumed that he was exposed to herbicides during service. 3. The presence of a liver disorder during the Veteran's lifetime is not shown by the record. 4. Based on evidence of record at the time of the Veteran's death, an acquired psychiatric disorder did not manifest during service and is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims for service connection for accrued benefits purposes for COPD, a central nervous system disorder, and a prostate disorder by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for service connection for accrued benefits purposes for a liver disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2012). 3. The criteria for service connection for accrued benefits purposes for an acquired psychiatric disorder, including PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103; 38 C.F.R. §§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the Veteran was sent letters in November 2005, May 2006, and August 2006, prior to the initial decision on the claims, that informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence, and addressing disability ratings and effective dates. As the current claimant stands in the Veteran's stead, she is also presumed to have received notice. Moreover, she received a letter in April 2008 that informed her of what evidence was required to substantiate the claims, and of her and VA's respective duties for obtaining evidence. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private and VA clinical records have been reviewed. The appellant was also afforded a personal hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ clarified the issues on appeal, explained the concept of service connection, and identified an evidentiary deficit. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103. The Board notes that VA has a reduced duty to assist the appellant in acquiring evidence in support of her claim of service connection for accrued benefits. With regard to such claim, entitlement to benefits due and unpaid are determined "based on evidence in the file at date of death." 38 C.F.R. § 3.1000(a) (2012). Thus, VA is not obliged to provide an examination or obtain a medical opinion regarding service connection, or to acquire private medical evidence not of record at the time of the Veteran's death. The Board is thus satisfied that VA has complied with the duty-to-assist-requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to final decision in this appeal. No further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). COPD, Central Nervous System Disorder, & Prostate Disorder The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In March 2013, the appellant submitted a statement indicating that she was withdrawing the appeals for the issues of entitlement to service connection for accrued benefits purposes for COPD, a central nervous system disorder, and a prostate disorder. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals for those issues, and they are dismissed. Law & Regulations Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). 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) (2012). Certain chronic diseases, including psychoses and cirrhosis of the liver, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2012). Under § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Recently, the United States Court of Appeals for the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, a "Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). VA regulations define that "service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a) (6) (iii). Current VA regulations provide that the following diseases shall be service-connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, ischemic heart disease (excluding hypertension), chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2012). Except for chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, these diseases must have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). In this case, personnel records show that the Veteran served in Vietnam during the Vietnam Era. As such, it is presumed that he was exposed to herbicides during service. An accrued benefits claim arises after a Veteran has died. Although a Veteran's claim does not survive his death, see Landicho v. Brown, 7 Vet. App. 42, 47 (1994), certain individuals may be entitled to accrued benefits under certain conditions. Among requirements for accrued benefits are that a claim must be filed within the year after the Veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. In this case, the appellant's claim for accrued benefits was received within one year of the Veteran's death. Applicable law provides that an individual entitled to accrued benefits may be paid periodic monetary benefits to which a Veteran was entitled at the time of his death under existing ratings or based on evidence in the file at the time of his death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The United States Court of Appeals for the Federal Circuit has made it clear that, in order to support a claim for accrued benefits, a Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. Feb. 11, 1998). Here, at the time of his death, the Veteran had claims pending for entitlement to service connection for a liver disorder and a psychiatric disorder, in addition to those withdrawn by the appellant. An accrued benefits claim is, under the law, derivative of, and separate from, the Veteran's claims. See Zevalkink v. Brown, 6 Vet. App. 483, 489-490 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996). Thus, in the adjudication of a claim for accrued benefits, the claimant is bound by the same legal requirements to which the Veteran would have been bound had he survived to have his claims finally decided. Liver Disorder The appellant in this case contends the Veteran had a liver disorder related to service, and alternatively, that his liver disorder was related to his psychiatric disorder as his psychiatric disorder caused him to consume alcohol and damage his liver. On careful review of the record in this case, the Board simply cannot find evidence that the Veteran was diagnosed with a liver disorder in his lifetime. In this regard, the Board notes that a private medical record dated from June 2006, which comprises nearly the most current evidence of record dated from prior to the Veteran's death, noted that a sonogram of the abdomen had been conducted and showed a normal liver without any evidence of cirrhosis. The appellant contends the Veteran was diagnosed with a type of hepatitis related to alcohol use prior to his death. Hearing Transcript, p. 7. However, multiple blood tests are of record, including a June 2006 Hepatic Function Panel, but a diagnosis of hepatitis or a liver disorder was not rendered based on these tests. The record is clear that the Veteran suffered from alcohol abuse, but a liver disorder is simply not documented. The appellant additionally contends that the Veteran suffered from a liver disorder, because damage to the liver caused his central pontine myelinolysis (CPM). Hearing Transcript, p. 8. The record, including a June 2006 private medical report for example, shows the Veteran suffered from CPM prior to his death. CPM was listed as a significant condition contributing to death on the Veteran's death certificate. However, there is no evidence of record indicating that CPM arose due to any problem the Veteran had with his liver, and CPM itself is not a disorder of the liver. Based on the evidence above, the Board cannot find the requirement for the presence of a liver disability during the Veteran's lifetime has been met. Where the medical evidence establishes that a Veteran does not have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). In the absence of a current disability, the other elements of service connection and theories of presumptive service connection, secondary service connection, and continuity of symptomatology need not be addressed. The claim for service connection for accrued benefits purposes must be denied. In reaching these decision, the Board has considered the Veteran's and appellant's statements, and finds that they are competent to report the symptoms of a liver problem. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The appellant here reports that a liver disease was diagnosed during the Veteran's lifetime. She is competent to report this. However, the medical evidence disclosing no liver impairment, and in fact showing evidence to the contrary (as indicated by the June 2006 sonogram of the abdomen and Hepatic Function Panel, for example), outweighs the lay evidence. Cf. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (threshold considerations in weighing the probative value of medical opinions include the qualifications of the person opining, and most of the probative value from such opinions come from their reasoning). Here, the medical evidence disclosing no impairment is far more credible and probative than the lay evidence. Acquired Psychiatric Disorder Prior to his death, the Veteran was diagnosed with anxiety and depression. See, e.g., treatment records of June 2003, August 2005, January 2006, and May 2006. The record is devoid of documentation of PTSD prior to the Veteran's death. Indeed, in the May 2006 VA treatment record, for example, the Veteran and appellant specifically contended he was suffering from symptoms of PTSD and that they applied for a mental health evaluation for PTSD. On examination of the Veteran, the examiner diagnosed anxiety and depression. As for the in-service incurrence of the condition, service treatment records do not document psychiatric diagnoses or complaints. However, the Board concedes that an in-service stressor alleged by the Veteran has been corroborated. The Veteran alleged that while assigned to a heavy equipment maintenance company in 1966 or 1967, he witnessed an ammunition dump explode, throwing shrapnel into the air and killing a fellow service member. In February 2010, the Joint Services Records and Research Center (JSRRC) confirmed that on October 28, 1966, the Ammunition Supply Point located at Long Bien received an enemy attack, resulting in two deaths and nine wounded. Unfortunately, the evidence of record or in VA's possession on the date of the Veteran's death is not sufficient to establish that anxiety or depression were related to military service. The Board cannot now seek a medical opinion to determine whether a nexus exists between military service and any psychiatric disability. See Ralston v. West, 13 Vet. App. 108, 113 (1999). In this regard, the Board emphasizes that this is not a substitution case. Because the Board must base its accrued benefits decision on the evidence in the file at the date of death, and because there was no competent evidence of record at the time of the Veteran's death establishing a link between the Veteran's anxiety and depression and service, the claim for accrued benefits must be denied. The Board further finds that chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, as there is no evidence documenting psychosis from within one year of the Veteran's discharge from active duty in June 1967, the Board finds that presumptive service connection is not warranted on this basis. Furthermore, psychosis was not noted or diagnosed during service. See 38 C.F.R. §3.303(b). To the extent the appellant argues a continuity of symptomatology between a psychiatric disorder and in-service injury or disease, as noted above, the United States Court of Appeals for the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331. Psychoses have been identified as such a chronic disease, but anxiety and depression have not. 38 C.F.R. § 3.309(a). A psychosis was not noted during service and the evidence establishes that there were not characteristic manifestations of the disease process during service. Therefore, the Board finds that continuity of symptomatology regarding a psychosis has not been established. In reaching these decisions, the Board acknowledges the competent lay statements of the Veteran and the appellant, including her competent assertions that during the Veteran's lifetime, she was told he had PTSD which was related to service. The Board acknowledges that the evidence, to include both the lay and medical evidence of record, is potentially suggestive of a nexus between the claimed psychiatric disorders and service. If this case were simply one of entitlement to service connection during the Veteran's lifetime, a remand would be necessary to obtain a VA examination addressing etiology (with the Board being able to consider evidence regardless as to when it was submitted). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As, however, the Board is limited in its consideration to evidence of record at the time of the Veteran's death, it must observe that the only positive evidence is so lacking in rationale as to be virtually non-credible and non-probative. Accordingly, for accrued benefits purposes, service connection cannot be granted for the claimed disorders. The Board has also considered the fact that the Veteran was exposed to herbicides while serving in the Republic of Vietnam during the Vietnam Era. The Veteran's psychiatric disorders, however, are not among those presumed to be associated with herbicide exposure. See 38 C.F.R. § 3.309(e). It is not otherwise contended that any herbicide exposure caused the Veteran's psychiatric disorders, and the claims file is devoid of any evidence to support this. In short, there is competent evidence that the Veteran had anxiety and depression prior to his death, however, there is no competent evidence establishing a relationship to service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The issue of entitlement to service connection for COPD accrued benefits purposes is dismissed. Service connection for a liver disorder for accrued benefits purposes is denied. The issue of entitlement to service connection for a central nervous system disorder for accrued benefits purposes is dismissed. The issue of entitlement to service connection for a prostate disorder for accrued benefits purposes is dismissed. Service connection for an acquired psychiatric disorder, to include PTSD, for accrued benefits purposes is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs