Citation Nr: 1751627 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-24 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for chronic kidney disease. 3. Entitlement to service connection for prostate cancer, to include as due to in-service exposure to an herbicide agent. 4. Entitlement to service connection for the residuals of a broken rib. 5. Entitlement to service connection for the residuals of exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Navy from August 1960 to May 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2011 and November 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In correspondence from October 2015, the Veteran withdrew his request for a hearing before the Board in writing. As such, the Board will proceed to adjudicate the Veteran's appeal on the evidence of record. 38 C.F.R. § 20.704 (2017). A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including a claimant's description of the claim, the symptoms a claimant describes, and the information a claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran has repeatedly characterized his psychiatric disorder as PTSD. However, the record also includes diagnoses of anxiety, specific phobia, and dysthymia. Accordingly, pursuant to Clemons, the Board has taken an expansive view of the Veteran's claim in characterizing the acquired psychiatric disorder claim, as noted above. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue(s) of entitlement to service connection for an acquired psychiatric disorder, the residuals of a broken rib, and the residuals of exposure to asbestos are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's chronic kidney disease did not have its onset in service and is not otherwise etiologically related to service. 2. The Veteran's prostate cancer did not have its onset in service and is not otherwise etiologically related to service, to include as secondary to in-service exposure to an herbicide agent. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic kidney disease have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board acknowledges the Veteran's service to his country and is sympathetic to his medical conditions; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). 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 of 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 Veteran). I. Service Connection - Legal Standard Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted on a secondary basis when there is competent evidence that a current disability is proximately due or has been aggravated by an already service-connected disability. 38 C.F.R. § 3.310. Service connection may also be granted for certain diseases, including prostate cancer, due to exposure to an herbicide agent pursuant to 38 C.F.R. §§ 3.307, 3.309(e). 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). Competent lay evidence is 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)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have 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). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). An appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert, 1 Vet. App. at 53. II. Service Connection - Analysis The Board observes that there is no question that the Veteran has a current disability of chronic kidney disease, as documented in a January 2011 VA treatment note. A biopsy of tissue from the Veteran's prostate in October 2011 also confirms the presence of prostatic adenocarcinoma. As such, the Board will turn to the central question of whether either of these current disabilities arose in service or are otherwise etiologically related to the Veteran's active duty service, either on a direct, presumptive, or secondary basis. The Board notes that the Veteran has not contended that either of these conditions arose in service and a review of the Veteran's service treatment records fails to uncover any in-service diagnosis or abnormalities relating to the Veteran's prostate or kidney. The record also lacks any evidence to suggest that either condition first manifested within a year of his separation from active duty, and there is no competent opinion to suggest that either of these disabilities is otherwise directly etiologically related to his service. Accordingly, the Board does not find that service connection may be granted for either of these claimed disabilities on a direct basis. The record is largely silent with respect to the Veteran's contentions regarding why he believes his chronic kidney disease is related to his active duty service. However, the Veteran has repeatedly contended that his prostate cancer should be presumptively connected to his service due to exposure to an herbicide agent. As the Veteran has noted, prostate cancer is one of the disabilities that may be presumptively service connected due to exposure to an herbicide agent. 38 C.F.R. § 3.309(e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. In addition, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ, in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such serve to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. See also 38 C.F.R. § 3.814 (c)(2). 38 C.F.R. § 3.307 (a)(6)(iv). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a veteran must have actually been present at some point on the land mass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The Veteran has specifically contended in a December 2011 statement that he was on a flight in 1964 from Hong Kong to an airbase north of Saigon in the Republic of Vietnam. He indicated that he was on the ground for roughly four hours before returning to Hong Kong. The Veteran largely reiterated these allegations in his Substantive Appeal filed in August 2013. The Veteran is certainly permitted to report his travel history while serving on active duty. VA, however, investigated these allegations in September 2009, in connection with a previous claim for service connection for diabetes mellitus, and again in October 2012 in connection with the instant appeal. However, VA was ultimately notified at that time that there was no evidence in the Veteran's file to substantiate any service in the Republic of Vietnam. A review of the Veteran's service treatment and extensive personnel records also fails to corroborate the Veteran's contentions that he was on the ground for roughly four hours in 1964 after arriving in Vietnam on a flight from Hong Kong. As the Veteran's service personnel records appear to be complete, the Board finds this evidence and the September 2009 and October 2012 determinations that he did not have any service in the Republic of Vietnam to be more probative than the Veteran's current contentions regarding a flight from Hong Kong to Vietnam in 1964. The record is devoid of any other competent evidence linking the Veteran's prostate cancer to his active duty service and does not contain any suggestion that this condition began in service or is otherwise causally related to any service-connected disability or any event or incident in his active duty service. As such, the Board finds that the preponderance of evidence is against the Veteran's claim and the doctrine of the benefit of the doubt is not for application. His claim for service connection for prostate cancer must therefore be denied. Similarly, the Board finds that the Veteran's claim for service connection for chronic kidney disease must also be denied. In contrast to the Veteran's other claims for service connection, he has not advanced any concrete theory for why this condition should be connected to service. The record does not indicate that it should be granted on a presumptive basis and he has not contended that this condition arose during his active duty service. Although the Veteran is service connected for tinnitus, hearing loss, and irritable bowel syndrome, there is no competent evidence of record to suggest that any of these disabilities is proximately related to the Veteran's chronic kidney disease. The record also lacks any competent evidence to suggest that any of these service-connected disabilities has aggravated his chronic kidney disease. The record does contain a February 2011 VA treatment note in which the Veteran's treating clinician suspected that the Veteran's chronic kidney disease was secondary to his diabetes mellitus, hypertension, and vascular disease. However, the Veteran has not been service-connected for any of these disabilities. The Board ultimately finds that the record lacks any competent evidence suggesting that the Veteran's chronic kidney disease arose during service, is otherwise etiologically related to service, or is proximately related to or has been aggravated by any service connected disabilities. As such, the Board finds that his claim for service connection for chronic kidney disease must be denied and there is no reasonable doubt to resolve in his favor. III. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Here, the Veteran was provided adequate notice in correspondence from June 2010 and November 2011. Pursuant to its duty to assist the Veteran, a review of the claims file indicates that all relevant service personnel and treatment records have been associated with the Veteran's claims file. The Board notes that VA has also made several attempts to verify the Veteran's claimed exposure to an herbicide agent, to include on a presumptive basis due to the Veteran's claimed service in the Republic of Vietnam. As explained below in the remand portion of this decision, the claims file does not appear to have all of the most recent VA treatment records. However, there is no dispute in the record that the Veteran has a current diagnosis of both prostate cancer and chronic kidney disease. The Board does not find that any updated treatment records would therefore have any probative value on the central question of whether the Veteran was exposed to an herbicide agent in service, either on a presumptive or direct basis. As the Veteran has not claimed that either of these conditions are otherwise related to his active duty service and the record is devoid of any competent evidence to suggest that the Veteran's chronic kidney disease or prostate cancer arose in or were caused by his active duty service, the Board does not find that any update treatment records would be relevant to his claim for service connection for these disabilities. As such, the Board may proceed and adjudicate the issues. The Board also acknowledges that the Veteran has not been provided a VA medical examination with respect to his claim for service connection for chronic kidney disease or prostate cancer. As part of its duties to assist an appellant in a claim for service connection, VA may be required to provide such an examination. Such an exam is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the claimant's service or with another service-connected disability, and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is no doubt that the record contains competent evidence of current disabilities of chronic kidney disease and prostate cancer. However, the Board does not find that there is any competent and credible evidence to suggest that there is a link between either of these conditions and the Veteran's active duty service. For the reasons explained above, the Board does not find that the Veteran has been either presumptively or directly exposed to an herbicide agent in service. Similarly, although the treatment records indicate that the Veteran's chronic kidney disease may be related to his hypertension or diabetes mellitus, neither of these conditions are service connected. As such, the Board does not find that the evidence of record surpasses the "low" threshold set forth in McLendon. Accordingly, the Board does not find that VA is required to provide a medical examination with respect to the Veteran's claims of service connection for these disabilities pursuant to McLendon. ORDER Service connection for chronic kidney disease is denied. Service connection for prostate cancer is denied. REMAND Although the Board sincerely regrets the delay, the issues of entitlement to service connection for residuals of a broken rib, residuals of exposure to asbestos, and an acquired psychiatric disorder must be remanded to allow VA to satisfy its duty to assist the Veteran. As part of its duty to assist claimants, VA must obtain relevant evidence upon receipt of a substantially complete application for benefits. When relevant evidence is in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain such evidence. 38 C.F.R. § 3.159(c)(2). Here, the Board notes that the most recent VA treatment records are from July 2014. These records indicate that the Veteran has continued to receive care at VA treatment centers. However, these recent records appear to have been provided by the Veteran and do not appear to contain all of the potentially relevant evidence relating to the claims of service connection for a rib disability, a respiratory disability associated with exposure to asbestos, or an acquired psychiatric disorder. The Board also observes that the updated VA treatment records that have been provided by the Veteran include a report of a CT scan of the Veteran's thorax. Notably, this diagnostic study included a report of a three millimeter density in the Veteran's right middle lobe that was possibly calcified. The Veteran was provided a VA respiratory examination in November 2012. After reviewing the Veteran's claims file, including an October 2004 chest x-ray study that was reportedly normal, the clinician who completed that examination ultimately determined that the Veteran did not have asbestosis or any other respiratory condition aside from sleep apnea. The recent yet incomplete VA treatment records submitted by the Veteran suggest that the Veteran does have some clinical abnormalities that could be suggestive of a current respiratory disability. As such, the Board finds that the Veteran should be afforded a supplemental VA respiratory examination to determine the current nature and etiology of any respiratory disability. The Veteran was also provided a VA examination in connection with his claim for service connection for PTSD in March 2011. The clinician who completed this evaluation ultimately concluded that the Veteran's PTSD was not caused by or a result of a non-combat stressor and that the Veteran did not meet the DSM-IV criterion for a stressor. However, as explained above, the Veteran's claim has been expanded to include any acquired psychiatric disorder, to include PTSD. The record does not contain any opinion regarding whether any such acquired psychiatric disorder, to include the Veteran's diagnoses of a phobia disorder, dysthymia, or an anxiety disorder, arose in or are otherwise etiologically related to service. He should be provided a psychological examination in order to obtain such an opinion. Accordingly, these matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file. 2. Thereafter, schedule the Veteran for a respiratory examination with the examiner who completed the November 2012 VA medical examination. However, if this clinician is unavailable, schedule the Veteran with an appropriate medical professional. The examiner is asked to take a complete medical history regarding the Veteran's claimed condition of any residuals of exposure to asbestos and conduct any tests or studies deemed necessary. The examiner should be provided the entire claims file, to include this remand, and note in the examination report review of the same. The examiner is asked explain the significance of the finding on the June 2014 thorax CT scan indicating a possibly calcified three millimeter density in the right middle lobe. The examiner is asked to identify any respiratory disability the Veteran currently has or has been diagnosed with since he filed his claim. The examiner is also asked to provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any such diagnosis either arose in or is etiologically related to the Veteran's active duty service, to include his conceded exposure to asbestos. A complete rationale should accompany this opinion. 3. After completing item one, schedule the Veteran with a VA psychological examination with an appropriate medical professional to determine the nature and etiology of any acquired psychiatric disability. The entire claims file should be provided to the examiner, to include this remand, who should indicate in the examination report review of the same. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disorder arose in or is otherwise etiologically related to service. The examiner is asked to provide a complete rationale for any opinion given. The examiner is also asked to specifically comment on in-service complaints of anxiety or nerves from August 1968 and March 1974. 4. After ensuring compliance with items one through three, complete any other development deemed necessary. 5. Finally, readjudicate the Veteran's claims. If any benefit sought on appeal is not granted in full, provide the Veteran and his representative a Supplemental Statement of the Case and allow them an appropriate amount of time to respond before returning the case to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs