Citation Nr: 19142663 Decision Date: 06/03/19 Archive Date: 06/03/19 DOCKET NO. 10-22 259 DATE: June 3, 2019 ORDER Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for gout, to include as due to exposure to herbicides and/or asbestos, is remanded. Entitlement to service connection for generalized arthritis, to include as due to exposure to herbicides and/or asbestos, is remanded. Entitlement to service connection for a left knee disorder, to include as due to exposure to herbicides and/or asbestos, is remanded. Entitlement to service connection for a skin disorder, to include as due to exposure to herbicides and/or asbestos, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to exposure to herbicides and/or asbestos, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), mental stress, anxiety, and depression, is remanded. FINDINGS OF FACT The Veteran has not been shown to have hepatitis C during the appeal period or within close proximity thereto. CONCLUSIONS OF LAW Hepatitis C was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2012. A transcript is of record. In April 2013, the Board dismissed a claim for service connection for a lumbar spine disorder and denied service connection for elevated uric acid levels, a skin disorder, gout, elevated prostate levels, hepatitis C, a left knee disorder, erectile dysfunction, generalized arthritis, and high cholesterol. The Board also remanded a claim for service connection for an acquired psychiatric disorder for additional development. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2013 Order, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties to vacate and remand the portion of the Board’s April 2012 decision that denied entitlement to service connection for a skin disorder, gout, hepatitis C, a left knee disorder, erectile dysfunction, and generalized arthritis. In November 2013, the Board remanded the claim for service connection for an acquired psychiatric disorder for additional development. The Board also remanded the claim for service connection for an acquired psychiatric disorder and the remaining issues on appeal for further development in September 2014 and July 2017. The case has since been returned to the Board for further review. In February 2019, the Board stayed adjudication of the appeal pending a decision from the United States Court of Appeals for the Federal Circuit in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Subsequently, the stay of adjudication was lifted. The Board recognizes that the Veteran attempted to raise the issue of entitlement to service connection for a prostate cancer in August 2015 and October 2018. As discussed in the July 2017 remand, the November 2013 Joint Motion specifically indicated that the Veteran withdrew his appeal as to the denial of entitlement to elevated prostate levels. Therefore, that issue is no longer on appeal. The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2018). Law and Analysis Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C. §§ 5103(a), 5103A (2012); 38 C.F.R. § 3.159(b) (2018); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Veteran was provided a notice letter in July 2010, prior to the initial decision on the claim. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In the letter, the RO notified the Veteran of the evidence necessary to substantiate the claim and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the Veteran and his representative have not alleged any prejudice as a result of any notification error, nor has any been shown. See Shinseki v. Sanders, 29 S. Ct. 1696 (2009) (an error in notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue). Moreover, the Board notes that the Veteran has been represented throughout the course of the appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (noting that representation is a factor that must be considered when determining whether that appellant has been prejudiced by a notice error). The Veteran’s service treatment and service personnel records as well as all identified and available post-service medical records have been associated with the claims file and were reviewed by both the Regional Office (RO) and the Board in connection with the claim. The record reflects that the RO attempted to obtain an October 1, 2012, VA psychiatric record, as directed by the Board in July 2017. However, the RO received negative responses form the VA medical center. The Veteran has not otherwise identified any available, outstanding records that are relevant to the claim decided herein. The Board does note that it is remanding other claims, in part, to verify the Veteran’s reported stressors and exposure to herbicide agents. However, as discussed below, the Veteran does not have a current diagnosis of hepatitis C. Therefore, any records obtained would not materially alter the disposition of the issue decided herein. The Board also notes that the Veteran was not afforded a VA examination in connection with his claim for service connection for hepatitis C; however, the Board finds that an examination is not warranted. Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and, (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, a VA examination is unnecessary to decide the claim because the Veteran has not been shown to have a current diagnosis hepatitis C. As discussed below, the record does not contain any evidence showing a current diagnosis or symptoms of hepatitis C during the appeal period or within close proximity thereto. Rather, the Veteran has simply asserted that service connection is warranted because he was diagnosed with hepatitis C approximately four years after his separation from service. Therefore, because there is no evidence of a current diagnosis of hepatitis C, the Board finds that a VA examination is unnecessary in this case. 38 C.F.R. § 3.159(c)(4)(A). The Veteran also testified at a hearing before the undersigned Veterans Law Judge in May 2012. In the November 2013 Joint Motion, the parties agreed that, in conducting the May 2012 hearing, the Veterans Law Judge did not fully explain the material outstanding issues and did not suggest the submission of evidence needed to prove the Veteran’s claims. In Bryant v. Shinseki, the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012) In September 2014, the Board remanded the issue of entitlement to service connection for hepatitis C to provide the Veteran notice and the opportunity to submit evidence in support his claim. In January 2017, the Agency of Original Jurisdiction (AOJ) provided the Veteran notice of the information and evidence needed to substantiate his claim for hepatitis C on a direct basis. The AOJ specifically advised the Veteran that the record did not establish that he had a current diagnosis of hepatitis. In addition, the AOJ informed the Veteran of the information and evidence needed to substantiate his claim that he was exposed to asbestos and herbicides during service. In so doing, the AOJ identified the disabilities for which VA presumes a relationship to herbicide exposure. It was also noted that a claim for service connection for a disability that was not listed required corroborating evidence of actual exposure to Agent Orange and evidence of a medical relationship between the exposure and that disability. The AOJ further notified the Veteran that his claim could be denied without such evidence. The Board also notes that the November 2013 Joint Motion set forth evidentiary and legal deficiencies with the Veteran’s claim. As such, the Veteran and his representative were aware of those deficiencies prior to the case being returned to the Board. Therefore, the Board finds that there is no prejudice in proceeding with adjudication of the claim. With regard to the September 2014 and July 2017 remands, the Board finds that the AOJ substantially complied with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). As discussed above, in January 2017, the AOJ sent the Veteran a letter explaining the issues pertinent to his claim for service connection for hepatitis C, identified evidence that may have been overlooked, and provided him the opportunity to submit additional evidence. In addition, in August 2017, the AOJ requested that the Veteran submit authorization to obtain his private treatment records. The AOJ also obtained VA medical records dated since March 2016 and associated them with the claims file. The record shows that the AOJ made additional efforts to obtain an October 1, 2012, VA psychiatric record, but received negative responses. In November 2017, the AOJ notified the Veteran that it requested his VA medical records and advised him to submit any records in his possession. The Veteran was also advised that, if no response was received, a decision could be made on his claim after 15 days. In addition, in October 2018, the AOJ issued a supplemental statement of the case as directed by the Board. The Veteran was also informed of the efforts made to obtain his October 1, 2012, VA psychiatric record, and the negative responses received. Moreover, to the extent that there was any deficiency of notice under the provisions of 38 C.F.R. § 3.159(e), the Veteran and his representative have not alleged any prejudice nor has any been shown. Therefore, the AOJ substantially complied with the Board’s remand directives. Stegall, 11 Vet. App. at 271. For these reasons, the Board concludes that VA has fulfilled the duty to assist with respect to the issue of entitlement to service connection for hepatitis C. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). The disorder at issue in this case is not considered a chronic disease as enumerated for VA compensation purposes. As such, the provisions for continuity of symptomatology after discharge are not for application in this case. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is not warranted for hepatitis C. The Veteran’s March 1963 enlistment examination noted several tattoos located on his left forearm, left hand, and right calf. In addition, the Veteran underwent tattoo removal during service. See, e.g., January 1965 and April 1965 service treatment records. However, the service treatment records are negative for any complaints, treatment, or diagnosis of hepatitis C. In fact, the Veteran’s June 1967 separation examination showed a normal clinical evaluation of the abdomen and viscera. In addition to the lack of evidence showing that hepatitis C manifested during service, there is no evidence of record that shows that the Veteran has a current diagnosis hepatitis C. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. The Board does acknowledge the Veteran’s testimony that he was diagnosed with hepatitis C approximately four years after service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the diagnosis of hepatitis C and the etiology of such a disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The post-service medical evidence does not document any complaints, treatment, or diagnosis of hepatitis C. A July 2004 VA medical record noted that the Veteran had positive risk factors for hepatitis C and that laboratory testing for the hepatitis C antibody was ordered. However, subsequent VA medical records do not show any diagnosis of hepatitis C. In fact, August 2017 and September 2018 VA medical records noted that hepatitis C antibody laboratory findings were negative. Although a Veteran may be granted service connection for a disability that resolves prior to the adjudication of the claim, McClain v. Nicholson, 21 Vet. App. 319 (2007), the evidence of record shows that the Veteran has not had hepatitis C at any time during the appeal period or within close proximity thereto. Indeed, the Veteran filed his claim for service connection in July 2010, and the evidence since that time does show that he currently has hepatitis C. As discussed above, the RO sent the Veteran a notice letter informing him of the elements necessary to substantiate a claim for service connection, including evidence of a current disability. However, the Veteran has not submitted or identified evidence of a current diagnosis of hepatitis C. For these reasons, the Board concludes that service connection is not warranted, and no discussion of the remaining elements is necessary, including herbicide and asbestos exposure. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (the absence of any one element will result in denial of service connection). REASONS FOR REMAND In July 2017, the Board directed the Agency of Original Jurisdiction (AOJ) to take all appropriate steps to attempt to verify the Veteran’s reported stressor pertaining to serving on a burial detail during his period of service from June 1966 to June 1967. The record reflects that the AOJ requested records for the period from January 1967 to June 1967. In March 2018, the National Archives and Records Administration (NARA) provided the 1967 Command Chronologies for the H&S Battalion, Marine Corps Recruiting Depot, San Diego, California. However, it does not appear that the AOJ conducted any additional development to verify the Veteran’s reported stressor for the period from June 1966 to January 1967. Therefore, a remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the Veteran has contended that he is a “blue water” veteran and that he may have been exposed to herbicide agents during his service aboard the USNS Gaffey from July 1964 to August 1964 and the USS MTS Patrick in September 1964. He has also asserted that he was stationed in Guam from 1965 to 1966. His service personnel records confirm that he was stationed aboard the USNS Gaffey and USS MTS Patrick. The Veteran also reported that he was stationed in Guam. In support of his claim, he submitted an article that noted Agent Orange was used on bases in Guam. Therefore, on remand, the AOJ should conduct any necessary development to verify the Veteran’s alleged herbicide exposure, to include whether the USS Gaffey and USS MTS Patrick operated in the territorial seas of the Republic of Vietnam during the Veteran’s service aboard the ships. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Regarding the claim for service connection for generalized arthritis, the Board notes that the Veteran has not been afforded a VA examination. During a May 2012 hearing, the Veteran reported having “all over arthritis.” He also testified that back injuries sustained during service may have contributed to his generalized arthritis. In September 2008, the Veteran reported that he injured his back lifting and performing his duties as a warehouseman. A September 2018 VA medical record noted that the Veteran’s active medical problems included multi-joint pain or degenerative joint disease. In addition, the United States Court of Appeals (Court) has held that pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, on remand, the Veteran should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the claim for service connection for a left knee disorder, the Board notes that the Veteran has not been afforded a VA examination. The post-service VA medical records note diagnoses of left knee osteoarthritis. In support of his claim, the Veteran submitted an August 2014 private medical opinion from Dr. M.C. (initials used to protect privacy). However, the opinion was conclusory in nature. In addition, Dr. M.C. stated that the Veteran reported that he sustained injuries during his active service, but he did not provide any specific details or information regarding the injuries. During the May 2012 hearing, the Veteran testified that his left knee disorder had its onset approximately 10 years ago, and he denied having any in-service knee injuries. He also testified that he sustained back injuries during service that may have contributed to his generalized arthritis. In light of the foregoing, on remand, the Veteran should be afforded a VA examination. See McLendon, 20 Vet. App. at 81. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for an acquired psychiatric disorder and the other disorders remaining on appeal that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. The AOJ should take all appropriate steps to verify the Veteran’s claimed stressor concerning his service on a burial detail while stationed at the Marine Corps Recruiting Depot, in San Diego, California, from June 1966 to June 1967, to include contacting the appropriate facilities to request unit histories or other appropriate records. It is noted that the claims file contains 1967 for the H&S Battalion, Marine Corps Recruiting Depot; however, it appears that the request for records from NARA was limited to records dated from January 1967 to June 1967. The AOJ should specifically document the attempts that were made to corroborate the claimed stressors. 3. The AOJ should take all appropriate steps to verify the Veteran’s claimed herbicide exposure. In so doing, the AOJ should provide the Veteran an additional opportunity to clarify the locations, dates, and nature of his claimed exposure to herbicide agents in Guam. The AOJ should also determine if the USNS Gaffey (TAP-121) and the USS MTS Patrick conducted operations in the territorial waters of the Republic of Vietnam while the Veteran was aboard the ships. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). It should be noted that the Veteran’s service records show that he served aboard the USNS Gaffey from approximately July 1964 to August 1964 and aboard the USS MTS Patrick in September 1965. All attempts and responses should be documented in the claims file. 4. After completing the foregoing development, if the AOJ has determined the evidence establishes the occurrence of an alleged in-service stressor, the Veteran should be scheduled for a VA examination to determine the nature and etiology of any psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and lay assertions. The examiner should specifically consider the private medical opinions of record. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all current psychiatric disorders. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran’s military service. With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any left knee disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a current left knee disorder that manifested in or is otherwise causally or etiologically related to his military service, to include any injuries therein. In rendering this opinion, the examiner should consider the Veteran’s May 2012 hearing testimony and the August 2014 private medical opinion. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any generalized arthritis disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify any current generalized arthritis disorder. If any previously diagnosed disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. The examiner should note that evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. For each disorder identified or any functional impairment resulting from pain, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any injuries therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 7. The AOJ should review the examination reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.