Citation Nr: 1443250 Decision Date: 09/26/14 Archive Date: 10/06/14 DOCKET NO. 08-31 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for laryngeal cancer, to include as due to exposure to herbicides in service. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and C.C. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active duty service from October 1966 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in part, denied service connection for laryngeal cancer and for PTSD. The Veteran timely appealed both issues. The Veteran testified at a June 2011 Board hearing before an Acting Veterans Law Judge (AVLJ). A complete transcript of the hearing is of record. This AVLJ has since retired. In August 2014, the Board sent the Veteran a letter informing him that the AVLJ who presided at his hearing is no longer with the Board and asking him if he wished to attend another hearing before a Veterans Law Judge (VLJ) who would render a determination in his case. The Veteran indicated that he did not wish to appear at an additional Board hearing. Therefore, the Board will proceed to evaluate the appeal. See 38 U.S.C.A. §§ 7102, 7107(c) (West 2002); 38 C.F.R. § 20.707 (2013). In the Board's September 2011 remand, it was noted that the issue of entitlement to service connection for prostate cancer, to include as secondary to exposure to herbicides during service, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The matter was referred to the RO for appropriate action, but no action appears to have been taken. Since the Board does not have jurisdiction over this issue, it is again referred to the AOJ for appropriate action. The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claims currently on appeal. FINDINGS OF FACT 1. The Veteran had no in-country service or documented visitation in the Republic of Vietnam, or exposure to herbicides, including Agent Orange. 2. The preponderance of the evidence is against a finding that the Veteran's laryngeal cancer had an onset in service, manifested within one year of service separation, or is otherwise related to his active military service. 3. The competent medical evidence does not reveal a diagnosis of PTSD related to the Veteran's active service. 4. The preponderance of the evidence is against a finding that any acquired psychiatric disorder had an onset in service or is otherwise related to the Veteran's active military service, or that a psychosis manifested within one year of service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for laryngeal cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In addition, the notice requirements of the VCAA apply to all five 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. A letter dated October 2006 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the claims decided herein. It also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, and what information and evidence would be obtained by VA, namely, records such as medical records, employment records, and records from other Federal agencies. With respect to the Dingess requirements, this letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings and notice of the type of evidence necessary to establish an effective date. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained the Veteran's service treatment records, and has reviewed the evidence in the Virtual VA electronic records system. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The record indicates that the Veteran was also afforded a VA PTSD examination in March 2012, the results of which have been included in the claims file for review. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). This examination involved review of the claims file and thorough examination of the Veteran. As such, the Board finds this examination is adequate. Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite information necessary to make a decision on the Veteran's claims. Furthermore, in November 2010 the Veteran testified at a Board hearing over which an AVLJ presided. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the AVLJ clarified the issues on appeal and solicited information regarding the occurrence of injuries and onset and nature of his symptomatology. The Veteran was advised of the reasons for the previous denials and of the type of evidence that could be identified or submitted to further substantiate the claims. The Veteran's representative and the AVLJ asked questions directed at identifying whether the Veteran met the criteria for a grant of service connection. The AVLJ sought to identify any pertinent evidence not currently associated with the claim. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. The Board also finds there has been substantial compliance with its September 2011 remand directives. The Board notes that the Court has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA examinations. The Veteran was provided notification of the VA examination for his laryngeal cancer; however, he failed to report. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). Based on the foregoing, the Board finds that the VA Appeals Management Center substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on an appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2013). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. The Merits of the Claims Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Here, laryngeal cancer and a psychosis are considered chronic diseases under 38 C.F.R. § 3.309(a) and, thus, are subject to the provisions governing service connection based upon continuity of symptomatology. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Laryngeal Cancer Pertinent VA law and regulations provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). For skin conditions like chloracne or other acneform disease consistent with chloracne, they must become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent in order to fall within the presumptive provisions. Id.; 3.309(e). The provisions for presumptive service connection, however, do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Turning first to the Veteran's allegation of in-service exposure to Agent Orange, the record does not show that the Veteran had "service in Vietnam," and exposure to Agent Orange or other herbicides may not be presumed. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii) ; 3.313(a). "Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). In its Haas v. Peake decision, the Federal Circuit found that VA reasonably interpreted 38 U.S.C. § 1116(a)(1)(A) and 38 C.F.R. § 3.307(a)(6)(iii) as requiring the physical presence of a veteran within the land borders of Vietnam (including inland waterways) during service. Id., 525 F.3d 1168 (Fed. Cir. 2008). In addition, the Federal Circuit held that "service in Vietnam" will not be presumed based upon the veteran's receipt of a Vietnam Service Medal or Vietnam Campaign Medal. See Id. The Veteran alleges he was wounded in Vietnam and was transferred to Okinawa for treatment for a gunshot/shrapnel wound. As stated by the Board in the September 2011 remand, during his appeal, the Veteran has asserted that, when assigned to the 515th Transportation Division, he served in the Republic of Vietnam. Specifically, he claims that while stationed in Okinawa in 1968 and 1969, he would often be assigned to temporary duty (TDY) in the Republic of Vietnam, including one incident during which he was shot in the left ankle while driving in Vietnam that resulted in two and a half months in the hospital for recovery. The Veteran has additionally submitted an official order which indicated that the 515th Transportation (Light Truck) Division was assigned to Da Nang, Vietnam beginning February 10, 1969; such order was post-dated February 26, 1969. Review of his service personnel records reflects that the Veteran was assigned as a "light truck driver" with the 515th Transportation Division from September 15, 1967 to February 26, 1969, stationed in Okinawa, Japan, on the Veteran's DA Form 20. However, several other service personnel records show that, beginning in September 1968, the Veteran was attached to the 515th Transportation (Heavy Truck) Division, not the light truck division. In fact, the Veteran received several Article 15 violations while assigned to the heavy truck division, not the light truck division. Additionally, the Veteran's DA Form 2962, Security Termination Statement and Debriefing Certificate, dated February 15, 1969, reflects that he was assigned to the 515th Transportation (Heavy Truck) Division, and was at that time being processed for return to the United States. Since review of the Veteran's service personnel records reflects that he was assigned to the heavy truck division of the 515th Transportation Division beginning in September 1968 until his redeployment back to the United States on February 26, 1969-and since the official order of assignment of the 515th Transportation Division specifically limits itself to the light truck division-the Board finds that, at this juncture, the evidence of record does not confirm that the Veteran was ever assigned to a division that served in the Republic of Vietnam, but instead served overseas in Okinawa. Furthermore, the Board finds the Veteran has made several inconsistent statements regarding his military history; specifically, whether he was ever in Vietnam. During a telephone call in October 2006, the Veteran reported that he was never in Vietnam or its coastal waters. According to a Report of Contact, dated December 2008, the Veteran stated his cousin had been assisting him in filing his claims and misunderstood some issues. The Veteran stated he "never stepped foot in Vietnam. He also stated he never received a gunshot wound or shrapnel wound while he was in service. He does not want to file a claim for anything due to Agent Orange exposure because he states he was not exposed to Agent Orange... He would like to continue his appeal for PTSD and Laryngeal cancer. The cancer was not due to Agent Orange, but he does claim it to be due to service." Yet, at the June 2011 Board hearing, and according to a September 2011 Statement in Support of the Claim, the Veteran stated he was in Vietnam and was wounded as a result of gunshot or shrapnel. The Board further notes that the Veteran does not have a Purple Heart, a Combat Infantryman Badge (CIB) or a Vietnam Service Medal (VSM) for any wounds received in combat or for participation in the Vietnam theatre at that time. In fact, the Veteran's DD Form 214 shows "None" for service in the Republic of Vietnam. Moreover, the Board notes that the Veteran's left ankle is already service connected for a fracture suffered in service when a forklift crushed his ankle and he was hospitalized for approximately two months. In short, the Board finds that to date the Veteran is simply not credible as to his assertions that he served in the Republic of Vietnam at any time during active duty. As such, the Board finds the evidence is insufficient to demonstrate exposure to herbicides during the Veteran's military service. He is, therefore, not entitled to service connection on a presumptive basis for any disease identified under 38 C.F.R. § 3.309(e). Again, since there is no presumption of herbicide exposure on the facts of this case, the list of presumptive conditions under 38 C.F.R. § 3.309(e) is not applicable here. However, service connection for laryngeal cancer may still be established on the basis of a chronic disease presumption or based on direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board next turns to whether the evidence of record supports the finding that the current diagnosis for laryngeal cancer is otherwise related to the Veteran's service. Here, the Board finds that the weight of the evidence is against the claim. As noted above, the Veteran is currently diagnosed with laryngeal cancer. Thus, the current disability requirement is satisfied. The Veteran's in-service treatment records show no diagnosis of, or treatment for, laryngeal cancer. Likewise, as discussed above, exposure to an herbicide agent has not been shown. Therefore, the in-service occurrence or aggravation of a disease or injury requirement has not been satisfied. Alternately, service connection can be established upon a finding of continuity of symptomatology. 38 C.F.R. § 3.303(b). There is no medical evidence showing that the Veteran's laryngeal cancer was present during service. See 38 C.F.R. § 3.303. In addition, the evidence does not show that laryngeal cancer was diagnosed during the one year presumptive period for chronic diseases. See 38 C.F.R. §§ 3.307, 3.309. The Board finds the record lacks any medical evidence establishing a possible relationship between the Veteran's current disorder and his period of active service. Significantly, the Veteran was scheduled for a VA examination pursuant to the September 2011 Board remand. However, the Veteran failed to report for the examination. Therefore, there are no examination findings and opinions regarding the etiological relationship between the Veteran's claimed disability and service. Furthermore, the evidentiary gap between the Veteran's active service and the earliest medical evidence of laryngeal cancer weighs heavily against the Veteran's claims on a direct basis. Here, the Veteran was diagnosed in 1999; almost 30 years after service separation. The lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). The Veteran himself believes that his current laryngeal cancer is related to service. However, while he is competent to describe symptoms of cancer, he has not demonstrated the expertise generally required to opine on causation. Indeed, in this case, the question of etiology extends beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau)). Here, laryngeal cancer is not a simple medical condition that the Veteran can identify based on mere personal observation, that is, by visual observation or by any other of the senses. Consequently, his statements as to etiology in this case are not competent and therefore lack probative value. In sum, the record does not support the Veteran's assertions regarding any actual exposure to herbicides, and service connection on an herbicide presumptive basis is not warranted. Additionally, the evidence of record does not show laryngeal cancer during service or for years thereafter, nor does it show that the Veteran's current laryngeal cancer is otherwise related to his period of service. The evidence of record is not in relative equipoise. Accordingly, as the preponderance of the evidence is against the claim for entitlement to service connection for laryngeal cancer, the appeal must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Psychiatric Disorder The Board notes that it has recharacterized the issue of service connection for PTSD, to an acquired psychiatric disorder, in order to comport with the holding of the Court in Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held that a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304; see Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to the combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Effective July 13, 2010, a new provision was added to regulations applicable to PTSD. This provides that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f)(3). The Board, however, finds that the Veteran did not engage in combat with the enemy during service. The Veteran's service records and DD Form 214 do not establish that the Veteran engaged in combat. As stated earlier, the Veteran does not have any medal for any wounds received in combat or for participation in the Vietnam theatre and the Veteran's personnel records do not show evidence of service in the Republic of Vietnam. Despite the Veteran's statements that he served in Vietnam and sustained a gunshot/shrapnel wound, the Veteran is simply not credible as to his assertions that he served in the Republic of Vietnam at any time during active duty. The Board notes that the Veteran's left ankle is already service connected for a fracture suffered in service when a forklift crushed his ankle and he was hospitalized for approximately two months, not as a result of a gunshot/shrapnel wound. Furthermore, in light of VA's duty to assist, the Board determined that a remand was necessary in order to confirm through other sources whether the Veteran ever served on TDY in the Republic of Vietnam as asserted. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2013). According to an October 2012 Memorandum of Unavailability of Federal records, a request of pay records from Defense Finance and Accounting Services (DFAS) was made following the Board remand. A request for a complete DFAS Form SF-180 was made from the Veteran. However, no response was received from the Veteran. Subsequently, , a Formal Finding on the Unavailability for pay records from DFAS was made. In short, the Board finds that to date the Veteran is simply not shown to have served in the Republic of Vietnam at any time during active duty. The Veteran's in-service treatment records do not indicate any evidence of complaint, treatment, or diagnosis of a mental health disorder. The Report of Medical Examination at separation, dated April 1970, indicated that was no evidence of abnormal psychiatric findings. In addition, according to the Report of Medical History at separation, also dated April 1970, the Veteran reported he had frequent trouble sleeping but denied frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. Furthermore, there is no evidence the Veteran has a current diagnosis of PTSD. The Veteran was afforded a VA examination in March 2012 where upon review of the evidence of record, a mental status examination, and the Veteran's lay statement, the examiner determined the Veteran did not have a diagnosis of PTSD. Rather, the Veteran was diagnosed with mood disorder due to several medical conditions, alcohol dependence in remission, and nightmares. The Veteran reported that the stressor was being wounded on his left ankle but the examiner concluded that this stressor was not related to the Veteran's hear of hostile military activity. The examiner determined the Veteran did not present with clinical symptoms that met the criteria of PTSD. While nightmares were noted, the examiner stated the Veteran did not describe the nightmares as related to his military service but rather to "life's stressors." The examiner stated the Veteran's mood struggles "could be related to his unfortunate medical problems and his at the time extensive drinking. Furthermore, the examiner noted that several entries in the VA outpatient records indicated PTSD, however these "the encounter/coding for the session were NOT PTSD. [The] notes do not reflect or support the making of a diagnosis of PTSD. The focus of the session [do] not reflect being PTSD related in content or symptomatology. Further, during this same time frame, [another VA examiner] indicate[d] diagnosis of Alcohol and Mood disorder due to medical condition." Therefore, the examiner concluded: Based on his current historical information, it is unlikely that he had PTSD. The evidence does indicate that the [Veteran] has [n]ightmares, but are not attributed to military [etiology] as currently described by the [Veteran]. The evidence does indicate the [Veteran] has a mood disorder, depression, that is attributable to a general medical condition. It may be that his depression was also partially related to his alcohol dependence. Upon consideration of the evidence of record, the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, must be denied. Regarding PTSD, the threshold question here is whether the Veteran actually has the disability for which service connection is sought. In the absence of proof of a present disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A review of the record did not find any diagnosis of PTSD. While the Board recognizes the Veteran's sincere belief in his PTSD claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has PTSD that was caused, or aggravated, by military service during any period of his appeal. While the evidence reveals that the Veteran currently suffers from mood disorder, the weight of the probative evidence of record does not etiologically link the Veteran's current disorder to his service or any incident therein. In addition to the requirements of service connection as detailed above, regulations also provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). While the Veteran has been diagnosed with mood disorder by a VA psychiatrist, there is no opinion linking an acquired psychiatric disorder to his active service. There is no medical evidence of record suggesting an etiological link between the Veteran's currently diagnosed mood disorder and service. There is also no evidence the Veteran complained of, was treated for, or diagnosed with any psychiatric disorder within one year of separation from military service. See 38 C.F.R. §§ 3.307, 3.309. Rather, the March 2012 VA examiner determined the mood disorder was due to his medical condition; specifically, laryngeal cancer, status post laryngectomy in 2003, with subsequent communication problems; alcoholic encephalopathy, cerebellar ataxia, and hypothyroid. The Veteran has been service connected for the fracture of the left ankle with traumatic arthritis and residual scar, and donor site scar of the right thigh; neither of which are attributed to the cause or aggravation of the Veteran's mood disorder. Insofar as service connection is not in effect for the disability claimed by the Veteran to have proximally caused his claimed disability, service connection on a secondary basis is not warranted. For this reason, the Veteran's claim for secondary service connection must be denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). The only evidence of record in support of the Veteran's claim consists of his own lay statements. The Board acknowledges the Veteran's contention that he believes his psychiatric disorder, to include PTSD, is related to his military service. His assertions that he experiences symptoms are credible. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2013), as to the specific issue in this case, given the complexity of the particular questions of diagnosis and etiology and the fact that a nexus opinion may not be rendered based on personal observation, the Board finds that the Veteran is not competent to opine on the presence or etiology of his psychiatric disorder, to include PTSD. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD, and the benefit of the doubt rule does not apply. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for laryngeal cancer, to include as due to exposure to herbicides in service, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs