Citation Nr: 1333781	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  10-40 137	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure.

2. Entitlement to service connection for arteriosclerotic heart disease, to include as due to herbicide exposure.

3. Entitlement to service connection for posttraumatic stress disorder (PTSD) to include as secondary to diabetes mellitus, type II.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Bruce, Counsel
INTRODUCTION

The Veteran served on active duty from October 1959 to July 1963.

This case comes before the Board of Veterans' Appeals (the Board) on appeal from July 2010 and February 2011 rating decisions of the Muskogee, Oklahoma, VA Regional Office (RO). The July 2010 rating decision denied service connection for diabetes mellitus, type II. The February 2011 rating decision denied service connection for arteriosclerotic heart disease and PTSD. 

A review of the Virtual VA paperless claims processing system was conducted.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. The competent and credible evidence fails to demonstrate that the Veteran's diabetes mellitus, type II, is related to his active duty service on either a presumptive or direct basis.

2. The competent and credible evidence fails to demonstrate that the Veteran's heart condition is related to his active duty service on either a presumptive or direct basis.

3. The competent and credible evidence fails to demonstrate that the Veteran has PTSD that is related to his active duty service on either a direct or secondary basis. 


CONCLUSIONS OF LAW

1. The criteria to establish service connection for diabetes mellitus, type II are not met or approximated. 38 U.S.C.A. §§ 1131, 5107 (West 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).
2. The criteria to establish service connection for a heart condition, to include ateriosclerotic heart disease, are not met or approximated. 38 U.S.C.A. §§ 1131, 5107 (West 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

3. The criteria to establish service connection for PTSD, to include as secondary to any service-connected disorder are not met or approximated. 38 U.S.C.A. §§ 1131, 5107 (West 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when 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);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 
Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide (4) degree of disability; and (5) effective date of the disability. See 38 C.F.R. § 3.159(b)(1); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In April 2010, the RO provided VCAA notice with respect to the Veteran's claims for entitlement to service connection for diabetes mellitus, type II, and arteriosclerotic heart disease. VCAA notice with respect to the issue of entitlement to service connection for PTSD was provided in an October 2010 letter. These letters provided the Veteran with notice of VA's duties to notify and assist him in the development of his claims consistent with the laws and regulations outlined above. The letters informed him of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence in support of his claims, the assistance that VA would provide to obtain information and evidence in support of his claims, and general notice regarding how disability ratings are assigned. He was given notice regarding disability ratings and effective dates of awards consistent with the holding in Dingess. These letters were provided to the Veteran prior to the initial adjudications of his claims, pursuant to Pelegrini v. Principi, 18 Vet.App. 112 (2004).



With regard to the duty to assist, the claims file contains the Veteran's service treatment records, personnel records, VA and private medical records, multiple lay statements, and a VA examination report addressing PTSD. 

The Veteran was provided with a VA PTSD examination in December 2010. The report of the examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examination is factually informed, medically competent and responsive to the issue under review and it is  adequate. See 38 C.F.R. § 4.2 (2013).

Medical examinations addressing the Veteran's claims for diabetes mellitus, type II, and heart disease are unnecessary in this case because, although there is a current disability, there is no credible evidence of an "in-service event, injury or disease," or a disease, manifested in accordance with presumptive service connection regulations, which would support incurrence or aggravation (McLendon element (2)).  Furthermore, there is no indication that the current disability may be related to an in-service event (McLendon element (3)).  

Although the Veteran has so asserted, he is not competent to render such an opinion himself. See Jandreau v. Nicholson, 492 F.3d 1372, 1377   (Fed. Cir. 2007) (noting, in a footnote, that sometimes a 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).  The Veteran cannot opine as to the etiology of these disabilities which involve complex medical matters.  Under such circumstances, an examination is not required.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2013).



All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been afforded the opportunity to present evidence and argument in support of his claims. 

All relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.

Merits of the Claims

The Veteran seeks service connection for diabetes mellitus, type II, and arteriosclerotic heart disease resulting from herbicide exposure during his active duty service in Thailand in 1962. He contends his PTSD is the result of traumatic events witnessed during active duty service or alternatively as secondary to his diabetes mellitus, type II. There is no competent, probative evidence supporting his claims. The Board must deny his claims. 38 C.F.R. § 3.102.

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372  (Fed. Cir. 2007).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). As PTSD is not chronic diseases under § 3.309(a), as a matter of law continuity of symptomatology may not serve in lieu of medical nexus with regard to this claim. Both diabetes and arteriosclerosis are chronic diseases under 
§ 3.309, continuity of symptomatology must be addressed with regard to these claims. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii).

Service connection may 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). 

There are statutory presumptions and VA regulations implementing them, that are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d) (2013). In the case of a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2013). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). 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. Id.

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) (2013) are satisfied: chloracne or other acneform disease consistent with chloracne if manifest to a degree of 10 percent within one year of date of last exposure, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, soft tissue sarcoma, hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e) (2013).

VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). 

For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), "service in the Republic of Vietnam" means that a claimant must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525); see also General Counsel Opinion, VAOPGCPREC 27-97 (July 23, 1997).

The Veteran did not serve in the Republic of Vietnam during the Vietnam Era. As indicated above, exposure is presumed in Veterans who set foot in Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii) (2013). Instead, the Veteran has argued that he was exposed to herbicides while stationed in Udorn, Thailand, one of the Royal Thai Air Force Bases.




VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in Thailand. VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q). Tactical herbicides, such as Agent Orange, were used at the Pranburi Military Reservation from April to September 1964, but not near any U.S. military installation or Royal Thai Air Force Base. Other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. Some Operation RANCH HAND aircrafts flew insecticide missions in Thailand from August 1963 to September 1963 and in October 1966. Id. While the 1966 missions involved the spraying of Malathion insecticide for "control of malaria carrying mosquitoes," these facts were noted as insufficient to establish tactical herbicide exposure for any Veteran based solely on service in Thailand. Id. If the Veteran's claim is based on servicing or working on aircraft that flew bombing missions over Vietnam, there is no presumption of "secondary exposure" based on being near or working on aircraft that flew over Vietnam or handling equipment once used in Vietnam. Id. 

Aerial spraying of tactical herbicides in Vietnam did not occur everywhere, and it is inaccurate to think that herbicides covered every aircraft and piece of equipment associated with Vietnam. The high altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicides over Vietnam during Operation RANCH HAND. Id. There are no studies that VA is aware of showing harmful health effects for any such secondary or remote herbicide contact that may have occurred. Id. Commercial (non tactical) herbicides may have been used on allied bases in Thailand. Therefore, VBA has indicated that if a Veteran's military occupational specialty (MOS) or unit is one that regularly had contact with the base perimeter, such as security police and dog handlers, there was a greater likelihood of exposure to commercial pesticides, including herbicides.

The record reflects that the Veteran served as an aircraft jet mechanic, a specialty that would not have had regular contact with a base perimeter, despite the Veteran's claims that he was involved in perimeter security duty. In this instance, the Veteran served in Udorn, Thailand from May 1962 to July 1962. As noted above, there was no spraying, testing, transporting, storage, or usage of herbicides, including Agent Orange, at Udorn, Thailand, prior to 1964. The Veteran was not in Thailand at a time when herbicides were used. Presumptive service connection as a result of herbicide exposure is not warranted for any of the Veteran's claims.

The Board has considered the Veteran's allegation that he was exposed to Agent Orange during his service in Thailand. However, an allegation is not sufficient in and of itself. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, however, there is no indication in the record that the Veteran possesses the necessary expertise to identify chemical compounds such that his observation is sufficient to establish the present of Agent Orange in Thailand and his exposure thereto. Accordingly, his statement of exposure, standing alone, is insufficient to establish his actual exposure to Agent Orange during his Thailand service. 

Service connection may be established under 38 C.F.R. § 3.303(b) (2013) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 (2013) and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. For Veterans who have served ninety (90) days or more of active duty service during a period of war, or during peacetime service after December 31, 1946, certain chronic disabilities, such as type II diabetes mellitus and arteriosclerosis, are presumed to have been incurred in or aggravated by service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). There is no evidence that the Veteran was diagnosed with either diabetes mellitus, type II, or arteriosclerosis within one year of service separation.

Therefore, the Veteran enjoys no presumption provided by law or regulation in 38 U.S.C.A. § 1116(f) (West 2002) or 38 C.F.R. § 3.307(6)(iii) (2013). A regulatory established presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. The Board will limit its analysis to a direct service connection as required by Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994) (when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis).    

Diabetes Mellitus, Type II

The Veteran currently has type II diabetes mellitus. A February 1997 private treatment record noted that the Veteran was diagnosed with non-insulin dependent diabetes mellitus in 1994. 

The Board has considered the Veteran's diagnosis of type II diabetes mellitus - however, there is no competent medical evidence that indicates that the Veteran had  type II diabetes mellitus while on active duty service. Indeed, the Veteran's service treatment records do not indicate that the Veteran was diagnosed while in service; both the Veteran's October 1959 entrance examination and July 1963 separation examination report the Veteran's endocrine system was listed as normal. 

The first diagnosis of record of type II diabetes mellitus is the noted 1994 date of diagnosis. The earliest diagnosis of diabetes mellitus, type II, was more than 30 years after separation from active military service. The Board finds that the 31 year lapse in time between the Veteran's active service and the first diagnosis of type II diabetes mellitus weighs against the Veteran's claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).

Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

The Veteran does not contend that his diabetes mellitus, type II, is related to his active duty service, other than as due to herbicide exposure. There is no competent or credible evidence linking the Veteran's diabetes mellitus, type II, to the Veteran's active duty service. Service connection on a direct basis must be denied.

Heart Condition

The Veteran has atherosclerosis (arteriosclerosis), as noted on an October 2001 private chest x-ray. The Board has considered the current diagnosis of a heart condition, but there is no competent medical evidence that indicates, nor does the Veteran contend, that he has a heart condition while on active duty service. The Veteran's service treatment records do not indicate that the Veteran was diagnosed with a heart condition while in service; both the Veteran's October 1959 entrance examination and July 1963 separation examination report the Veteran's cardiovascular system was normal. 

The first diagnosis of record of a diagnosed heart condition is the October 2001 x-ray report, more than 38 years after separation from active military service. The Board finds that the 38 year lapse in time between the Veteran's active service and the first diagnosis of atherosclerosis weighs against the Veteran's claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). 

Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this instance, the Veteran does not contend that his heart condition is related to his active duty service, other than as due to herbicide exposure. There is no competent and credible medical evidence that the Veteran's atherosclerosis is related to his active duty service. Service connection on a direct basis must be denied.

PTSD

The Veteran contends he has PTSD that is related to his active duty service to include as secondary to his diabetes mellitus, type II.  

For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  

Service connection has not been granted for diabetes mellitus, type II. Therefore, service connection for PTSD secondary to diabetes mellitus, type II, cannot be granted. 

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a). 38 C.F.R. § 4.125(a) refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV) as the source of criteria for the diagnosis of claimed psychiatric disorders.

DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror.

A veteran's testimony, by itself, can establish the occurrence of an in-service stressor event if the requirements of 38 C.F.R. § 3.304(f)(3) are met. The evidentiary burden of establishing a stressor is reduced under 38 C.F.R. 
§ 3.304(f)(3) if the Veteran can relate his PTSD to a fear of hostile military or terrorist activity is 38 C.F.R. § 3.304(f)(3). 

Effective on July 13, 2010, 38 C.F.R. § 3.304(f) (3) (stressor related to prisoner-of-war (POW) experience) and (f)(4) (stressor of in-service personal assault) were renumbered, respectively as (f)(4) and (f)(5), and a new (f)(3) was added which reduces the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 through 39852 (July 13, 2010).

This final rule applies to a claim of service connection for PTSD that is received by VA on or after July 12, 2010; or was received by VA before July 12, 2010 but has not been decided by the RO as of that date; or is appealed to the Board on or after July 12, 2010; or was appealed to the Board before July 12, 2010, but has not been decided by the Board as of that date; or is pending before VA on or after July 12, 2010, because the Court vacated a Board decision on the application and remanded it for readjudication. See 75 Fed. Reg. 39843 (July 13, 2010). As the Veteran filed his claim for PTSD in September 2010 and the RO did not decide the issue until February 2011, the change in regulation does apply in this instance.

The Veteran was afforded a VA psychiatric examination in December 2010. The examiner noted the Veteran's claimed stressor that during an exercise there was an alleged mechanical failure and a malfunction of the evacuation system in a plane that his "best friend" was piloting. The Veteran alleged that he was sent to recover the plane and the pilot and witnessed that his "best friend's" head had been blown off as a result of the malfunction to the evacuation system. While the Veteran reported that he was very disturbed by the incident, he stated that with time he reconciled to the fact that this is a risk of being in the military. He reported irritability, even fist fights, when he returned home following his active duty service, but further stated that he grew out of it.

Apart from the facts that the Veteran was not trained as, nor is there any evidence that he served as, an aircraft recovery specialist but instead as a jet mechanic, and the unlikelihood that Veteran in the U.S. Marine Corps of Corporal E-4 would have as his "best friend" a jet pilot who was in every likelihood a commissioned officer there is no evidence that the Veteran was in combat and no evidence that the Veteran was in fear of hostile or terrorist activity. The Veteran was not given an Axis I diagnosis. The examiner stated that the current Axis I condition did not meet the diagnostic criteria for PTSD according to the DSM-IV because the Veteran had only one traumatic event which was upsetting at the time, but he was able to come to terms with it and denied that he had been traumatized since the incident.

The medical evidence does not show that the Veteran has a clinical diagnosis of PTSD. Significantly, the examiner in the December 2010 VA examination, that addressed the DSM-IV, stated that the full criteria were not met. See the December 2010 VA examination. Indeed, the examiner found that the Veteran did not have any Axis I, psychiatric diagnosis. In this respect, the medical evidence as to treatment and the Veteran's self-reports have been investigated and found to not support a connection between PTSD and the Veteran's military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) ((holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional)). Jandreau, 492 F.3d at 1377. The Veteran is not competent to provide a medical diagnosis of PTSD. 

In the absence of proof of a present disability, there is no valid claim presented. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Since the competent medical evidence does not contain a clinical diagnosis of PTSD, service connection is not warranted for this claim. 

Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the Veteran's opinion is not competent with regard to an assessment as to etiology or diagnosis of any psychiatric disorder.

The December 2010 VA examiner's addendum opinion is the most probative medical evidence addressing the etiology of the Veteran's disorder, because it is clearly factually informed, medically based and responsive to this inquiry. The examiner provided a full and complete rationale for his opinion which was based on a review of the file. The examiner reviewed the Veteran's medical history and determined that the Veteran did not have an Axis I diagnosis. As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). As the December 2010 VA examiner's opinion is based upon an evaluation of the Veteran and review of the claims folder, the Board finds that it is entitled to the most weight regarding the diagnosis or etiology of any acquired psychiatric condition. The opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995).


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ORDER

Service connection for diabetes mellitus, type II, to include as due to herbicide exposure, is denied.

Service connection for arteriosclerotic heart disease, to include as due to herbicide exposure, is denied.

Service connection for posttraumatic stress disorder (PTSD) to include as secondary to diabetes mellitus, type II, is denied. 



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs