Citation Nr: 1339341 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 08-03 531A ) 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 an acquired psychiatric disorder, claimed as PTSD (posttraumatic stress disorder) with insomnia. 2. Entitlement to service connection for benign prostatic hypertrophy (BPH) to include as a result of exposure to herbicides. WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and spouse ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from February 1965 to 1985, and served in the Republic of Vietnam from August 21, 1969 to March 4, 1971. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Veteran testified at a July 2009 Board personal hearing in Manila, the Republic of the Philippines (Travel Board). The hearing transcript has been associated with the claims file. While the Veteran initially submitted a claim for service connection for PTSD with insomnia, because evidence of record does not presently identify a diagnosis of PTSD related to the Veteran's psychiatric symptoms, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disability, claimed as PTSD with insomnia. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). In November 2009, the Board remanded the issues of service connection for BPH, an acquired psychiatric disorder (claimed as PTSD with insomnia), and a back disorder for additional development that included a request to obtain VA examinations to address the claimed disabilities. Service connection for a back disorder was subsequently granted by the RO in a July 2013 decision, and that issue is no longer on appeal. The Board finds that the RO substantially complied with the Board's remand directive in obtaining an April 2013 VA examination and opinion addressing BPH, and finds that the Board may proceed with a decision on this issue at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that further development is necessary to address the issue of service connection for an acquired psychiatric disorder (claimed as PTSD with insomnia). The issue of service connection for an acquired psychiatric disorder, claimed as PTSD with insomnia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran had active service in the Republic of Vietnam, he is presumed to have been exposed to herbicides in service. 2. The Veteran has currently diagnosed benign prostatic hypertrophy. 3. Benign prostatic hypertrophy is not a presumptive disease associated with exposure to an herbicide agent under 38 C.F.R. § 3.309(e). 4. The Veteran did not sustain an injury or disease related to the prostate in service and did not exhibit genitourinary (GU) symptoms in service. 5. Currently diagnosed benign prostatic hypertrophy is not related to an in-service injury, disease, or event, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for benign prostatic hypertrophy are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Id. The Board finds that the RO met the VCAA notice requirements in August 2006 preadjudicatory notice to the Veteran, which included notice with respect to presumptive disease associated with exposure to an herbicide agent. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, service personnel records, VA examinations, VA treatment records, medical certificates from a private physician, and the Veteran's statements and testimony. During the July 2009 Travel Board hearing, to assist the Veteran, the undersigned asked questions to help direct the Veteran's testimony to help identify any relevant symptoms or treatment in service or post service, including to ascertain whether there had been a diagnosis of current disability associated with the reported enlarged prostate. These actions fulfilled the duties under 38 C.F.R. § 3.103 (2013). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Pursuant to the November 2009 Board remand, the Veteran was afforded a VA examination to address benign prostatic hypertrophy. 38 C.F.R. § 3.159(c)(4) (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the April 2013 VA examination and opinion obtained is adequate as it included a complete physical examination of the Veteran, a review of the records and history taken during examination, and included relevant medical opinions and adequate reasoning for the opinions rendered. Accordingly, the Board finds that the RO substantially complied with the November 2009 Board remand order and VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the BPH has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Benign prostatic hypertrophy is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of herbicide exposure is warranted for 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); see also 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). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service. 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with 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). 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). In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain specific disorders, based upon extensive scientific research. See, e.g., Notices, 68 Fed. Reg. 27,630 -41 (2003); 64 Fed. Reg. 59,232 -243 (1999); 61 Fed. Reg. 57,586 -589 (1996). However, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). 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). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis for Benign Prostatic Hypertrophy The Veteran contends BPH is related to service, to include herbicide exposure in service. A DD Form 214 and personnel records reflect that the Veteran had active service in the Republic of Vietnam. While the Veteran had service with the United States Navy, personnel records show that he was assigned to Naval Support Activity, in country, in Saigon and Cat Lo from March 1970 to March 1971. Because the Veteran's naval service involved actual duty in the Republic of Vietnam, he is presumed to have been exposed to herbicides in service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97; see also Haas, 20 Vet. App. at 257 (2006). A June 2006 private medical certificate from Dr. E.B. and an April 2013 VA examination show that the Veteran has currently diagnosed BPH; however, the Board finds that, because BPH is not included in the above-indicated diseases associated with exposure to an herbicide agent, presumptive service connection is not warranted. See 38 C.F.R. § 3.309(e). Even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence demonstrates that BPH is not related to service, including to herbicide exposure in service. The Veteran did not sustain an injury or disease related to the prostate in service and did not exhibit GU symptoms in service. Service treatment records contain no complaints, diagnoses, or treatment related to the prostate or GU system. Periodic medical examinations completed in service, to include a November 1984 service separation examination, show that the Veteran had a normal GU system, and that the Veteran denied frequent or painful urination on associated reports of medical history. The evidence of record, lay and medical, reflects an initial post-service onset of BPH. The earliest post-service evidence of BPH was in June 2006. In the Veteran's July 2006 claim for compensation, he identified an initial diagnosis of "enlarged prostate gland" at Christ the King Hospital in June 2006. A June 2006 medical certification completed by Dr. E.B. confirmed the June 2006 diagnosis of BPH. During July 2009 Board hearing testimony, the Veteran described urinary symptoms which led up to his evaluation for BPH and he provided more detail as to the onset of his symptoms during an April 2013 VA examination. During the VA examination, the Veteran described a post-service onset of urinary symptoms in the 1990s, with no workup done. He reported that he was later told by his private physician that his prostate was enlarged and that he had a work-up of the kidneys at VA in 2010, and that enlarged prostate was confirmed by a private ultrasound in 2010. A July 2010 VA urinalysis is of record. The Board finds that the Veteran is competent to describe his history of medical treatment, and the Board finds that the Veteran is credible as the reported history is consistent with objective findings from the medical record. The Veteran has not identified any symptoms in service related to BPH, and instead indicated that his symptoms began post-service in the 1990s with an initial diagnosis of BPH in 2006. The Board finds that currently diagnosed BPH is not otherwise shown to be related to an in-service injury, disease, or event, to include herbicide exposure in service. The April 2013 VA examiner opined that BPH was not related to service, to include herbicide exposure in service, and instead related BPH to hormonal affects brought on by the Veteran's age. The April 2013 VA examiner reasoned that service treatment records showed no consult for a urinary or prostate problems. He noted that the Veteran reported "no" to frequent or painful urination on cited reports of medical history in service, and that the GU was stated to be normal on periodic examinations in service. Additionally, urinalysis completed in service, in October 1981 and November 1984, showed no microhematuria. The VA examiner opined that with these findings in service treatment records, BPH was less likely incurred in service, nor was it seen in service. The VA examiner further reasoned that current BPH was likely related to hormonal effects brought about by the Veteran's age (of 65 years at the time of the examination), stating that studies have shown that there is a surge in male hormones at age 40 years onwards among men. Accordingly, the VA examiner opined that BPH was less likely as not related to service, to include herbicide exposure in service. According to CAVC, "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. The Board finds that the April 2013 VA opinion is probative, as was based on an accurate factual background consistent with the Board's own findings. The VA examiner provided adequate reasoning for his opinion based on current findings, findings in service, and his own medical expertise. The evidence of record does not otherwise establish a nexus between currently diagnosed BPH and service, or in-serivce herbicide exposure. For these reasons, the Board finds that a preponderance of the evidence is against the service connection for benign prostatic hypertrophy, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for benign prostatic hypertrophy, including as due to herbicide exposure during service, is denied. REMAND A remand is required in this case to ensure that there is adequate evidence upon which to decide the Veteran's claim for service connection for a psychiatric disorder. The Veteran contends in various lay statements and during July 2009 Travel Board hearing testimony that he has received informal treatment from a local health officer since service for psychiatric symptoms to include insomnia, anxiety (described as constant fear), and anger outbursts which he believes is related to service in the Republic of Vietnam. The Veteran has identified an in-service stressor related to combat or "fear of hostile military or terrorist activity," specifically, exposure to hostile automatic weapons fire while stationed in Saigon in the Republic of Vietnam. The Veteran's DD Form 214 and personnel records show that he served in Naval Support Activity in the Republic of Vietnam during the Vietnam War. Personnel records show that he was assigned to Naval Support Activity in Saigon and Cat Lo from March 1970 to March 1971 and reflect that the Veteran was located in a combat zone. The Board finds that the identified stressor of exposure to hostile weapons fire is related to a fear of hostile military activity, and is consistent with the circumstances of the Veteran's service while located in a combat zone during the Vietnam War. Additionally, an April 2013 VA psychiatrist indicated that the identified stressor is adequate to support a diagnosis of PTSD, though such a diagnosis was ultimately not rendered. Accordingly, the Board finds that Veteran's credible lay statements and testimony are adequate to establish the occurrence of the identified in-service stressful event or combat exposure. See 38 C.F.R. § 3.304(f) (2013) (liberalizing, in certain circumstances that include hostile military activity, the evidentiary standard for establishing the required in-service stressor); 75 Fed. Reg. 39843 (July 13, 2010). Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). The Veteran was afforded a VA examination in April 2012; however, the Board finds that the examination was not adequate in its explanation as to why the Veteran does not have any current psychiatric disorder. While the VA examiner in April 2012 concluded that the Veteran had an identified stressor related to a fear of hostile military or terrorist activity that was adequate to support a diagnosis of PTSD, he stated that the Veteran did not meet the DSM-IV criteria for a PTSD diagnosis. The VA examiner did not attribute the credibly identified psychiatric symptoms (to include insomnia, anxiety, and anger outbursts) to any current psychiatric diagnosis or, in the absence of a current DSM-IV psychiatric diagnosis, did not explain why a diagnosis was not indicated. That the Veteran has multiple psychiatric symptoms that are not accounted for by any diagnosis, in the context of this claim where in-service stressful events are demonstrated, and symptoms since service have been credibly reported, is insufficient to decide the questions of current psychiatric disability and nexus to the in-service events. For these reasons, the Board finds that the April 2013 VA examination is inadequate, and a remand for a new VA examination is necessary to help clarify whether currently identified psychiatric symptoms are attributable to a psychiatric diagnosis, and, if so, whether such is related to the verified in-service event or combat exposure. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA psychiatric examination with a different VA examiner (other than the one who conducted the April 2013 VA examination), to help clarify whether the Veteran's currently identified psychiatric symptoms are attributable to any psychiatric diagnosis. If so, whether such diagnosed disorder is related a verified in-service event or combat exposure. If not, an explanation for such symptoms needs to be rendered. The relevant documents in the claims folder should be made available for review in connection with this request. Any indicated testing should be performed. The RO/AMC should inform the VA examiner of that the Veteran has verified exposure to hostile weapons fire in service. The VA examiner should identify any current psychiatric diagnoses related to the Veteran's identified psychiatric symptoms, to include insomnia, anxiety, and anger outbursts. If a current psychiatric diagnosis is not indicated, the examiner should explain the why a diagnosis is not indicated in the context of the reported symptoms, and explain the likely cause of such symptoms. For any diagnosed psychiatric disorder, the examiner should render the following opinion: Is it at least as likely as not (a 50 percent or greater probability) that a currently diagnosed psychiatric disorder began during service or is otherwise linked to a verified incident, event, or combat exposure in service? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. 2. After all development has been completed, the RO/AMC should readjudicate the claim for service connection for an acquired psychiatric disorder, to include PTSD with insomnia. If the benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2013). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs