Citation Nr: 1417526 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 09-37 274 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to exposure to herbicides. 2. Entitlement to service connection for a kidney disorder, to include as due to exposure to herbicides. 3. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides. 4. Entitlement to service connection for a vision disorder, to include as due to exposure to herbicides. 5. Entitlement to service connection for bilateral hearing loss, to include as due to exposure to herbicides. 6. Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to June 1966. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an October 2007 rating decision issued by the RO. The Board remanded the case for additional development in September 2012. It has now been returned to the Board for the purpose of appellate review. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or finding referable to hypertension or a kidney disorder in service or for many years thereafter. 2. The currently demonstrated hypertension and kidney disorder are not shown to be due to an event or incident of the Veteran's period of active service. 3. The Veteran is not shown to have had prostate cancer. 4. The Veteran is shown to have had refractive error during service, but an acquired eye disease or injury due to service is not demonstrated. 5. The Veteran is not shown to have a hearing loss disability for VA compensation purposes. 6. The Veteran is not shown to have manifested complaints or findings of an innocent acquired psychiatric disorder during service or for many years thereafter. 7. The currently demonstrated dementia and depression are not shown to be due to an event or incident of the Veteran's period of active service. 8. The Veteran is not shown to have performed active service in the Republic of Vietnam or to have a diagnosis of PTSD. CONCLUSIONS OF LAW 1. The Veteran's disability manifested by hypertension is not due to disease or injury that was incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The Veteran's disability manifested by a kidney disorder is not due to a disease or injury that was incurred in or aggravated by active service; nor may any be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. The Veteran does not have a disability manifested by prostate cancer due to disease or injury that was not incurred in or aggravated by active service; nor may any be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 4. The Veteran does not have an acquired vision disability due to disease or injury that was incurred in or aggravated by active service; nor is refractive error a disease or injury within the meaning of applicable legislation. 38 U.S.C.A. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 5. The Veteran does not have a bilateral hearing loss disability due to disease or injury that was incurred in or aggravated by active service, nor may a sensorineural hearing loss disability be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 6. The Veteran's does not have an innocently acquired psychiatric disability manifested by PTSD due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 7. The Veteran's disability manifested by dementia and depression is not due to disease or injury that was incurred in or aggravated by active service; nor may any be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA 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 with substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 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(a); 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). Here, the duty to notify was satisfied by a February 2007 letter that was sent to the Veteran which explained what the evidence needed to show in order to establish service connection for a claimed disability and how VA could help obtain that evidence. The letter also explained how VA assigns ratings and effective dates for service connected disabilities. 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). The evidence of record includes service treatment records, service personnel records, paper and electronic VA treatment records, private treatment records, Social Security Administration (SSA) records, the allegations of the Veteran's wife, and written statements, apparently prepared by his wife, that were signed by the Veteran. The Veteran was afforded a VA psychiatric examination in connection with his claim. Unfortunately, due to his current medical condition, including multiple strokes and dementia, the Veteran was unable to respond to most of the interview questions. Nonetheless, the examiner was able to form an opinion about the nature and etiology of any psychiatric disorder based on the Veteran's presentation during the interview and review of the record. There is no evidence that the Veteran's condition is expected to improve or that he would be able to answer interview questions at any time in the future. Reexamination would therefore be futile. The Veteran was not afforded VA examinations with respect to his other claims. VA is required to provide a medical examination or medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5107A(d). An examination is considered necessary if the record contains competent evidence that (a) the Veteran has a current disability or persistent or recurrent symptoms of a disability; (b) the disability or symptoms may be associated with the Veteran's service; and (c) the record does not contain sufficient medical evidence for VA to make a decision on the claim. Id. In this case VA was not required to provide an examination with respect to the remaining issues because the record either does not contain any evidence that the Veteran actually has the claimed conditions or, if present, that they are any way related to service. Although there are extensive medical records, none of them show the existence of prostate cancer, hearing loss, or a visual disability other than refractive error. While the Veteran is shown to have hypertension and a kidney disorder, there is no evidence that either condition is related to his military service. Initially the appellant's asserted that these conditions were caused by herbicide exposure during service. However, as will be discussed in greater detail, the evidence does not support the allegation that the Veteran served in the Republic of Vietnam or otherwise was exposed to herbicides. Later, the Veteran's representative asserted that the Veteran developed these conditions in service and was treated for them in service. However, the Veteran's service treatment records and post service medical records show that this was not the case in that none of the claimed conditions is shown to have developed until long after service. Since there is no possibility of establishing a nexus to service, examinations would not be helpful. Additionally, the extensive documentation of the Veteran's very limited ability to communicate suggests that ordering additional examinations would be unavailing since he is not shown to be able to provide any history or to effectively communicate his symptoms. The Board thus finds that no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of these claims. 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). The Board also finds that the instructions set forth in the September 2012 remand were substantially complied with, as the identified medical and SSA records were obtained and associated with the claims file. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection The appellant claims that all of the Veteran's conditions were caused by his active service. Initially, the only theory advanced was that these problems were caused by the Veteran's exposure to herbicides during service. Much later, the Veteran's representative alleged that the conditions were all present during service and treated during service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including hypertension, prostate cancer, and sensorineural hearing loss, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, in the case of the chronic diseases set forth in 38 C.F.R. § 3.309, the requisite nexus may also be provided by evidence of continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (2013). The Veteran's service treatment records do not show complaints or findings referable to prostate cancer, hearing loss, hypertension, kidney disease, or a psychiatric disorder. A visual issue documented during service was that the Veteran was prescribed glasses. His blood pressure at his April 1966 discharge physical was well within the normal range, both sitting and standing. Audiometric testing at discharge showed normal hearing. The only defects noted were an epigastric scar and defective distant vision corrected with glasses. All other body systems were noted to be normal. In addition, the Veteran expressly denied having frequent trouble sleeping, nightmares, or depression or excessive worry in a report of medical history prepared in conjunction with the examination. While the Veteran signed a written statement asserting that he served in the Republic of Vietnam and was exposed to herbicides, this is not supported by his service personnel records. His DD Form 214 noted that his foreign service was in the European theater. He received no awards or decorations indicative of Vietnam service. The Veteran's record of service lists his only foreign service as having been in Greece. Thus, on this record, the Veteran's assertions that he served in the Republic Vietnam are found not to be credible for the purpose of establishing that he may be presumed to have been exposed to herbicides during service. Neither the Veteran nor his spouse has provided any information about the circumstances of his alleged service in the Republic of Vietnam or to show that he had other exposure to herbicides during service. To the extent that multiple statements have been submitted indicating that the Veteran was in the military at the time that herbicides were used, there is no explanation of how such exposure would have occurred and these bare statements do not establish that the Veteran was actually exposed to herbicides during service. The Board also notes that the Veteran's wife has no personal knowledge of anything that occurred during the Veteran's service because they were not married until decades after the Veteran's period of active service ended. A review of the numerous VA and private treatment records do not show any diagnosis or treatment for prostate cancer. Neither the Veteran nor his wife has provided any specific information to document that the Veteran had prostate cancer. While a layperson is competent to report a diagnosis that they have been told, there is no indication that either had ever been told that the Veteran had prostate cancer. Since there is no evidence to show that the Veteran ever had prostate cancer, a basis for the grant of service connection has not been presented. Similarly, given the extensive documentation of the Veteran's medical problems and severe functional limitations, there is no basis for finding that the Veteran developed a hearing loss disability for VA compensation purposes that can be causally linked to an event or incident of his active service. To the extent that a layperson is competent to report experiencing difficulty hearing, no such statements by the Veteran have been reported in this case. While service treatment records show indicate that the Veteran was prescribed glasses for correcting his visual acuity, refractive error is considered to be a congenital or developmental defect which is not subject to service connection. 38 C.F.R. § 3.303(c). No acquired eye disease has been identified by the medical evidence The medical records do show diagnoses of hypertension and kidney disease. A medical history included in the SSA records reports that the Veteran was diagnosed with hypertension due to hyperaldosteronism in September 1994, nearly 30 years after service, after he presented with left hemiparesis and dysarthria. This was determined to be an infarction secondary to hypertension. An adrenal gland tumor was removed, but the hypertension persisted and the Veteran had a residual left hemiparesis. The 1994 treatment records confirm a diagnosis of hypertension was made at that time after the Veteran suffered a cerebrovascular accident. The Veteran had more heart problems including two additional strokes in 2005, with a severe decline in functioning after the second stroke. It appears that, around that time, coronary renal failure was noted and later treatment records reflect chronic kidney disease. However, there is no evidence to show that either hypertension or kidney disease had its clinical onset during service or until many years thereafter. To the extent that the Veteran is not shown to have been exposed to herbicides in service, service connection cannot be granted on that basis. To the extent the Veteran's representative has asserted that these claimed conditions were diagnosed and treated during service, these statements are not submitted by competent evidence. With respect to the claimed psychiatric disorder, the VA treatment records show diagnoses of dementia and depression. The Veteran was noted to be aggressive towards his caregivers, and this was thought to be related to sleep problems and his stroke. The private treatment records show that the Veteran had some depression, but a diagnosis of PTSD was not reported. The Veteran's primary care doctor at VA referred him to the mental health clinic for management of depression and "possible PTSD," but there is no explanation of or support for this statement in the available records. Moreover, he was not diagnosed with PTSD at the mental health clinic. There also is no evidence that serves to link any acquired psychiatric disorder to an event or incident of the Veteran's active service. To the extent that the Veteran's wife reported that he talked about being exposed to war trauma, but there is no showing that he served in combat or in the Republic of Vietnam. The Veteran was afforded a psychiatric examination by VA in March 2009. The report indicates that the Veteran was unable to respond to most of the interview questions. He was unable to provide any information himself and his wife had only known him for the past 17 years. The Veteran was unable to provide any military history or to indicate that he had served in combat. His wife said he preferred to stay to himself even prior to the strokes in 2005, but he was wheelchair bound, started to become physically aggressive, and needed complete assistance with essentially all activities after the strokes. The Veteran was on medication to help with depression and aggression. He occasionally did cry or make a gun sign with his hand. The Veteran's wife reported that the Veteran was unable to think rationally or speak since his strokes in 2005, even though some medical records suggested that he retained some degree of ability. During the interview the Veteran sat quietly in his wheelchair. He was essentially mute and was not able to answer most questions The examiner was unable to assess the Veteran's mood or obtain no verbal response to attempts to assess orientation or thought processes. The examiner was unable to perform any tests of memory. The Veteran's wife described his having terminal insomnia and thought that he saw things because he would sometimes point. The examiner diagnosed dementia secondary to cardiovascular accident and mood disorder secondary to general medical condition (cardiovascular accident). There is no indication that either of these conditions was related to service in any way. The Board is sympathetic to the wife's assertion that he should be granted benefits because he had severe medical conditions and the family was in need of financial assistance, this is not a basis for the grant of service connection. The Board is without jurisdiction to award monetary benefits that are not authorized by the law. See, e.g., Harvey v. Brown, 6 Vet. App. 416 (1994) (noting that the Board has no equitable jurisdiction). ORDER Service connection for hypertension is denied. Service connection for a kidney disorder is denied. Service connection for claimed prostate cancer is denied. Service connection for a claimed vision disorder is denied. Service connection for claimed bilateral hearing loss is denied. Service connection for an innocently acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs