Citation Nr: 18144861 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 12-16 551A DATE: October 25, 2018 ORDER Entitlement to service connection for rectal carcinoma, to include as due to herbicide exposure is denied. Entitlement to recognition of the Veteran's son, O.H.L., as a helpless child on the basis of permanent incapacity for self-support prior to attaining the age of 18 is denied. FINDINGS OF FACT 1. The Veteran’s rectal adenocarcinoma is not a soft-tissue sarcoma, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease, including presumed exposure to herbicide agents. 2. The evidence does not show that O.H.L. became permanently incapable of self-support by reason of a mental or physical disability prior to attaining the age of 18 years. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for rectal carcinoma, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to recognition of the Veteran's son, O.H.L., as a helpless child on the basis of permanent incapacity for self-support prior to attaining the age of 18 have not been met. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. §§ 3.57, 3.356 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for rectal carcinoma, to include as due to herbicide exposure The Veteran contends that his rectal cell carcinoma is attributable to his service in Vietnam. A review of his personnel records confirms service there from October 1966 to September 1967, with the Veteran having been awarded the Purple Heart related to his participation in combat operations. Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include cancer, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For cancer, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. Finally, service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed, including soft tissue sarcomas. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board concludes that, while the Veteran has been assessed with rectal cancer, which is a chronic disease, it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Medical records show the Veteran was not diagnosed with rectal cancer until 2011, decades after his separation from service and decades outside of the applicable presumptive period. The Veteran has not reported having experienced any symptoms of rectal cancer during the presumptive period and consistently since service. He is not competent to provide a diagnosis in this case or determine that any observed symptoms were manifestations of rectal cancer. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran primarily claims that his rectal cancer is the result of exposure to herbicide agents during his service in Vietnam. By virtue of that service, he is entitled to the presumption of exposure to herbicide agents, including Agent Orange. He asserts that his cancer is subject to presumptive service connection as a soft-tissue sarcoma under 38 C.F.R. § 3.309(e). Here, the Veteran was assessed as having rectal adenocarcinoma in 2011. In February 2018, VA obtained a medical opinion to address whether the Veteran’s rectal adenocarcinoma qualified as a soft-tissue sarcoma. The opinion states that the Veteran’s rectal cancer was not a soft-tissue sarcoma, with the examiner explaining in detail that adenocarcinoma “had nothing to do with soft-tissue carcinoma.” The Board acknowledges the Veteran’s assertions that his cancer qualifies as a soft-tissue sarcoma; however, he is not competent to make such an assertion as it is clearly medically complex, and requires knowledge of the interaction between multiple organ systems. Jandreau, supra. Otherwise, the February 2018 VA medical opinion is the most competent evidence of record, and clearly explains that the Veteran’s rectal adenocarcinoma is not a soft-tissue sarcoma subject to presumptive service connection under the applicable laws and regulations providing for service connection for certain diseases on the basis of presumptive herbicide exposure. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Accordingly, entitlement to service connection for rectal cancer as presumptively related to herbicide exposure is not warranted. Gilbert, supra. Service connection for cancer may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s rectal adenocarcinoma and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The February 2018 VA examiner also opined that the Veteran’s rectal adenocarcinoma was not at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicides. The examiner reasoned that there were numerous factors for the development of the Veteran’s rectal adenocarcinoma, and that environmental factors did not cause adenocarcinoma. While the Veteran believes that his rectal cancer is related to an in-service injury, event, or disease, including exposure to herbicide agents, he is not competent to provide a nexus opinion in this case. This issue medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 2. Entitlement to recognition of the Veteran's son, O.H.L., as a helpless child on the basis of permanent incapacity for self-support prior to attaining the age of 18. VA provides certain benefits for a child of a veteran who is shown to be permanently incapable of self-support by reason of mental or physical defect by or before his or her 18th birthday. See 38 U.S.C. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1)(ii), 3.356. The term “child” includes an unmarried person, who before reaching the age of 18 years, became permanently incapable of self-support. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. Pursuant to 38 C.F.R. § 3.356(a), a child must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. The focus of analysis is on the individual's condition at the time of his 18th birthday. It is that condition which determines whether entitlement to the status of "child" should be granted. See Dobson v. Brown, 4 Vet. App. 443 (1993). Under 38 C.F.R. § 3.356(b), rating determinations will be made solely on the basis of whether the child is permanently incapable of self-support through his own efforts by reason of physical or mental defects. The question of permanent incapacity for self-support is one of fact for the rating agency to determine based on competent evidence of record in each individual case. Rating criteria applicable to disabled veterans are not considered controlling. Principal factors for consideration are: 1) Evidence that a claimant is earning his or her own support is prima facie evidence that she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child, by her own efforts, is provided with sufficient income for her reasonable support; 2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when her condition was such that she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established; 3) Employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases it should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child which would provide sufficient income for reasonable support. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends; and 4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. 38 C.F.R. § 3.356(b). For purposes of Title 38 of the United States Code, the term "child" is specifically defined as being unmarried. 38 U.S.C. § 101(4); 38 C.F.R. § 3.57. The marriage of a child of a veteran shall not bar recognition of such child as the child of the veteran for benefit purposes if the marriage is void, or has been annulled by a court with basic authority to render annulment decrees unless the Secretary determines that the annulment was secured through fraud by either party or collusion. 38 U.S.C. § 103(e) (West 2002); see also 38 C.F.R. § 3.55(b)(1) (2013). Although a child who has been married must now obtain an annulment to qualify for benefits as a helpless "child of the veteran," on or after January 1, 1975, a child whose marriage has been terminated by death or dissolved by a divorce decree would still qualify for benefits as a "child of the veteran," if the divorce decree was obtained prior to November 1, 1990. 38 C.F.R. § 3.55(b)(2); see Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8004(a)(2), (b), 104 Stat. 1388, 1388-343 (1990). 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 Veteran claims entitlement to recognition of O.H.L. as a helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 years. O.H.L. is an adult son of the Veteran. O.H.L.’s birth certificate shows that he was born on May [redacted], 1975. He attained the age of 18 on May [redacted], 1993. In statements of record, the Veteran and his spouse have asserted that O.H.L. has a psychiatric disability that became apparent prior to his 18th birthday. They have related that prior to his 18th birthday, O.H.L. had problems and adjustment issues in school, and that he had to be placed in special education prior to graduating from high school. They assert that he was thus incapable of self-support prior to attaining the age of 18. Clinical evidence of record does not show treatment for any psychiatric disability or any behavioral issues prior to O.H.L. attaining the age of 18. Rather, clinical evidence documents an onset of schizophrenia in 1995. See July 2000 “Incapacitated Dependents Physicians Statement.” It is clear that from the onset of the disability that O.H.L. was incapable of self-support. At issue is whether O.H.L. was permanently incapable of self-support prior to his 18th birthday. In order to address the question, VA examined O.H.L. and obtained a medical opinion as to the onset of his psychiatric disability, assessed as schizophrenia, as well as when O.H.L. became permanently incapable of self-support. Based upon a review of the record, as well as examination of O.H.L., the examiner concluded that it was less likely than not that O.H.L. was incapable of self-support prior to his 18th birthday. The examiner noted that each of O.H.L.’s parents were poor historians and offered contradictory statements in regard to O.H.L.’s history. The examiner stated that based upon the objective evidence of record that the Veteran’s psychiatric disability had its onset in 1995, at the age of 20, and that this is when he became incapable of self-support. The Veteran and his spouse are competent to report any mental or physical defect O.H.L. has that could be observed through their senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question at issue, however, is whether O.H.L. had a mental defect resulting in an incapacity for self-support by the age of 18 years. The Veteran and his spouse are not competent to determine whether any mental or physical disability O.H.L. may have had prior to age 18 made him permanently incapable of self-support. A competent opinion of O.H.L's ability to provide self-support requires specialized education and training that the Veteran and his spouse lack as lay persons. Therefore, the appellant's assertions as to O.H.L.’s inability to take care of himself prior to the age of 18 is afforded no probative value. See Jandreau, 492 F.3d at 1372. O.H.L. was not permanently incapable of self-support prior to attaining the age of 18. Here, objective clinical evidence shows that O.H.L. became permanently incapable of self-support in 1995, or about 2 years after he attained the age of 18. Moreover, a VA examiner has reviewed the claims file and examined O.H.R., and has found it less likely than not that he was permanently incapable of self-support prior to his 18th birthday on the basis that the evidence showed that O.H.L.’s psychiatric disability’s onset was in 1995, or after O.H.L. attained the age of 18. Accordingly, the competent and probative evidence weighs against the claim and it must therefore be denied. Gilbert, supra. REMANDED Entitlement to an initial compensable evaluation for bilateral hearing loss is remanded. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for bilateral hearing loss. A review of the Veteran’s VA medical records shows that there are outstanding audiograms pertinent to the claim. VA audiologic assessment records dated May 10, 2012, and January 31, 2013, document that audiograms are available by clicking on “Tools, [and] select[ing] ‘VISTA Imaging.’” However, the audiograms associated with these consultations are not of record. Accordingly, the matter must be remanded to obtain them. See 38 U.S.C. § 5103A(c) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). 2. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). The Veteran was last examined to address the severity of his service-connected posttraumatic stress disorder (PTSD) in August 2014. Examination at that time resulted in assessments of PTSD and adjustment disorder with depressed mood. The examiner found it possible to differentiate between the symptoms of these disorders, and attributed symptoms of intense psychological distress at reminders of Vietnam, avoidance of thoughts and feelings and war movies, persistent negative beliefs about self and the words, persistent negative emotional state, detachment, irritability, hypervigilance and startle response, to the PTSD. The examiner attributed down mood, feeling useless and low energy to the adjustment disorder. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it “takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran’s prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The August 2014 examiner did not apparently review the entire history, and the examination is inadequate. Here, VA records dated before and after the August 2014 examination reflect assessments of other psychiatric disorders, to include major depressive disorder (MDD), generalized anxiety disorder (GAD) and most recently “unspecified anxiety disorder.” The examiner did not address any symptoms relating to these disorders, and a new examination is necessary to address the claim. 38 C.F.R. § 4.2. 3. Entitlement to a TDIU. The Veteran’s claim for a TDIU is inextricably intertwined with the claims remanded herein. Therefore, a decision on the claim for entitlement to a TDIU, will be deferred pending action on the claim for an increased evaluation HIV. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain the specific clinical findings from VA audiological evaluations, including the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, and whether the Veteran's speech recognition tests were measured using the Maryland CNC test (audiometrics/audiograms) from the tests that occurred on May 10, 2012, and January 31, 2013. See VA audiologic assessment records with those dates. [Note: it may be necessary to contact the VA medical facility directly to obtain copies of the test results.] 2. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected PTSD. The claims folder, and any additional evidence obtained, if any, must be made available to the examiner for review. All tests and studies deemed necessary by the examiner should be conducted, in order to obtain, as accurately as possible, a picture of the nature and extent of the Veteran's PTSD. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the applicable rating criteria. In rendering his or her evaluation, the examiner should delineate between the manifestations of the service-connected PTSD and any nonservice-connected psychiatric disability, to the extent possible, as well as their effects on the Veteran’s occupational and social capabilities and whether any assessed psychiatric is associated with PTSD. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner is asked to comment on the functional impairment resulting from the service-connected PTSD as it may affect his ability to function and perform tasks in an occupational setting. K. J. Alibrando Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak