Citation Nr: 20004867 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 19-33 833 DATE: January 23, 2020 ORDER Service connection for an abdominal scar (claimed as due to a bayonet wound) is denied. Service connection for an acquired psychiatric disorder claimed as posttraumatic stress disorder (PTSD), depression, and anxiety is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. REMANDED Entitlement to service connection for ischemic heart disease with pacemaker to include as due to herbicide agents is remanded. Entitlement to service connection for bladder cancer is remanded. FINDINGS OF FACT 1. The Veteran’s abdominal scar did not originate in service and is not otherwise etiologically related to service. 2. The Veteran’s claimed stressors have not been verified in the record. 3. The preponderance of the evidence does not support a diagnosis of PTSD. 4. An acquired psychiatric disorder was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. 5. The Veteran’s chronic obstructive pulmonary disease (COPD), was manifested many years after his separation from service and the preponderance of the competent evidence shows it is not related to, caused by, or aggravated by his service. CONCLUSIONS OF LAW 1. The criteria for service connection for an abdominal scar are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for an acquired psychiatric disorder, including PTSD, are not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for COPD are not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1956 through April 1960 and June 1960 through June 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision. Service Connection Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 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). When there is an approximate balance of positive and negative evidence on an issue material to a determination, the VA resolves reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for an abdominal scar claimed as due to a bayonet wound. The Veteran contends he had active duty service in Korea during the Korean War from December 1952 through July 1953 where he sustained a bayonet wound to the center of his abdomen. See July 2017 VA Form 9. He seeks service connection for the residual scar. The question for the Board is whether the Veteran’s abdominal scar is a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that while the Veteran has an abdominal scar, the preponderance of the evidence is against finding that it began during active duty, or is otherwise related to an in-service injury, event, or disease. As an initial matter the Board notes the Veteran’s military personnel records (MPRs) reflect that he served in Korea during peacetime from August 1960 through August 1961, and not during the time period claimed by the Veteran. See DA Form 20, Enlisted Qualification Record. His military occupational specialty (MOS) was quarter-master supply clerk. Id. The Veteran’s service treatment records are also silent for complaints of or treatment for a bayonet injury or an abdominal wound of any kind. However, his enlistment examination documents that at age nine he required hernia surgery due to a rupture. The Veteran entered active duty service with a four-inch right hernia scar noted on his enlistment examination. See March 1956 Enlistment Examination. The Veteran’s separation examination also referenced the scar located in the right inguinal region with no difference (N.D.) See March 1964 Separation Examination. The Board has reviewed lay statements from the both the Veteran and his spouse. Both are competent to testify regarding facts or circumstances that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994). Notably, the Veteran’s spouse indicated that the Veteran has been diagnosed with early stage dementia and his memories regarding military service only began surfacing in when he was given medications for the condition. See April 2017 Buddy Statement. Findings of competency and credibility are two distinct matters. After a careful review of the evidence, the Board finds that while the Veteran and his spouse are competent to testify as to observable symptoms, including an abdominal wound that caused a scar, their statements relative to this issue are not credible for several reasons. First, there are no service treatment records suggesting the occurrence of such an injury. Rather, at both enlistment and separation from active duty, the Veteran’s scar was noted on written physical examination reports. The scar was acknowledged and attributed to the surgical repair a childhood hernia rupture. The Veteran and examining military physicians signed those reports contemporaneously. Finally, the Veteran’s two tours of duty were well documented as during peacetime and there is no evidence apart from the Veteran’s lay statements that he was ever engaged in any combat-like activity. As noted above, the Veteran’s MPRs show he served in Korea from August 1960 through August 1961, and not from December 1952 through July 1953, as claimed by the Veteran and his spouse. In finding that the Veteran and his spouse’s statements to be of little probative value, the Board acknowledges their position that the Veteran served in a war zone beginning in September 1952 and those service records have been lost. Id. However, having reviewed the extensive military personnel records and service treatment records in the Veteran’s claims file, the Board is satisfied that VA has fulfilled their duty to assist and that there is no objective evidence supporting the implication that the Veteran’s claims file is incomplete in this regard. The Board finds that the competent evidence shows that the Veteran’s abdominal scar is related to a hernia repair surgery during childhood and not related to his reports of a bayonet wound in service, despite his recollection to the contrary. Consequently, the Board finds that there is no causal connection between that scar and active duty service. Although the Veteran is entitled to the benefit of the doubt when the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Having found that the criteria for service connection for the Veteran’s abdominal scar have not been met, the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Entitlement to service connection for an acquired psychiatric disorder claimed as posttraumatic stress disorder (PTSD), depression and anxiety. The Veteran contends he had combat service during the Korean Conflict from December 1952 through July 1953 where he sustained a bayonet wound and received a Purple Heart. See July 2017 VA Form 9. He also asserts he served in the Republic of Vietnam from March 1964 through December 1964 in the Mekong Delta and Saigon. See February 2017 VA 21-4138 Statement in Support of Claim. He seeks service connection for an acquired psychiatric disorder claimed as PTSD, depression and anxiety. Entitlement to service connection for PTSD requires specific findings: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the DSM-5. Id.; see 38 C.F.R. §§ 4.125(a), 4.130. With respect to the third element of service connection for PTSD, if the evidence shows that a veteran engaged in combat and the veteran is claiming a combat-related stressor, no credible supporting evidence is required. 38 C.F.R. § 3.304(f); See Doran v. Brown, 6 Vet. App. 283 (1994). A valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person’s response involved intense fear, helplessness, or horror. As discussed previously, the Board finds that the Veteran did not serve during a period of war and did not engage in combat with the enemy. Specifically, his MPRs show he served in Korea from August 1960 through August 1961, and not from December 1952 through July 1953, and that he did not have service in the Republic of Vietnam. Therefore, the Veteran’s lay statements alone are not sufficient to establish the occurrence of a recognizable stressor upon which the diagnosis of PTSD may be based. West v. Brown, 7 Vet. App. 70 (1994). As will be discussed, the Veteran does not have a credible verified stressor upon which the diagnosis of PTSD may be based. As such, the claim is denied. The Veteran’s service treatment records (STRs) show no complaint or manifestation of a psychiatric disorder upon examination for separation from service. See March 1964 Separation Examination. Post service treatment records are silent for a diagnosis of any psychiatric condition until 2016. See e.g., June 2016, Psychiatry Note, Decorah VA Community Based Outpatient Center. The Veteran was diagnosed with early stage dementia in December 2015. See May 2017 Buddy Statement. The Veteran’s spouse reported that after the he began medication for dementia, the Veteran started to have nightmares of war in Vietnam and developed symptoms of PTSD, including being startled by loud noises, isolating, being hypervigilant and anxious around other people. Id. VA treatment notes reflect DSM 5 diagnoses of dementia, mood disorder due to a medical condition and PTSD. See December 2017 Bettendorf Community Based Outpatient Center Psychiatry Follow Up Note. The Board notes however that the diagnosis of PTSD made at the VA clinic was based upon unverified statements by the Veteran and his spouse that he was a combat veteran. See e.g., July 2019 Social History Internal Medicine Consult, Iowa City VA Clinic. In support of his claim the Veteran submitted a statement of his PTSD stressors including a bayonet wound to the stomach while serving in Korea in 1953, shooting a fellow soldier in who was injured in combat and would not survive, and loading the dead and wounded into Huey helicopters during service in Vietnam in 1964. See April 2017 VA 21-0781 Statement in Support of Claim for PTSD. The Veteran was afforded a VA examination for PTSD in September 2017 and based on the account of his wartime experiences as well as the symptoms he described, a positive medical nexus opinion was proffered. The Board notes that the directives from VA included information to the examiner confirming that the Veteran’s service in a location involving hostile military or terrorist activity was verified. See September 2017 Medical Opinion. However, this statement was incorrect. See October 2017 VA Memo. Specifically, VA determined after the September 2017 VA examination that the Veteran’s stressors could not be corroborated as described, because the Veteran’s contemporaneous service treatment records and military personnel records confirmed that he had never served in the Republic of Vietnam, never had a bayonet injury in Korea and had service during peacetime only. Id. Based on those findings, VA determined that the information the Veteran provided was insufficient to send to the U.S. Army, Joint Service Records Center, or National Archives and Records Administration for stressor verification. Id. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician’s statement. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). Here, the Board finds that the VA examiner was credible and competent to provide a medical opinion regarding a diagnosis of PTSD. However, that opinion was based on an inaccurate factual premise that the Veteran sustained physical and psychological harm as a result of combat duty in war zones. As a result, the Board finds that the VA examiner’s positive nexus opinion is of no probative value and accords it no weight. In this case, the Board finds that the Veteran does not meet the criteria for a diagnosis of PTSD. While the Board acknowledges that Iowa City VA Clinic also diagnosed the Veteran’s psychiatric symptoms as PTSD, the fact remains that those symptoms to the extent they exist, are not related to combat during active duty. Where VA determines that the Veteran did not engage in combat with the enemy, or that the Veteran did engage in combat with the enemy, but the claimed stressor is not related to such combat, the Veteran’s lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Zarycki v. Brown, 6 Vet. App. 91 (1993). In this case there is no verification of the Veteran’s combat service and there is no credible verified stressor upon which the diagnosis of PTSD may be based. As such, there is no basis to support the diagnosis of PTSD. In light of the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disorder claimed as PTSD, depression and anxiety, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a respiratory disability claimed as chronic obstructive pulmonary disease (COPD) is denied. The Veteran contends that his COPD is the result of cigarettes given in C-rations in Korea and Vietnam. See Notice of Disagreement, December 2017. VA treatment records confirm the Veteran has a diagnosis of COPD. See e.g., October 2019 Geriatric Medicine Note, Iowa City VA Health Care Services. The Board notes that the Veteran’s service treatment records (STRs) reflect that he was diagnosed with bronchitis early on in his service while at Fort Leonard Wood in Missouri. See DA Form 8-24, March 1956. However, the Veteran remained medically sound and reenlisted in 1960. Further, his separation examination was silent for findings of COPD or any type of breathing disorder. See March 1964 Separation Examination. The question for the Board is whether the Veteran has a current respiratory disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of COPD as shown in the VA treatment records, the preponderance of the competent evidence of record weighs against finding that his COPD began during service or is otherwise related to an in-service injury, event, or disease. It is not shown that the Veteran’s COPD had its onset during active duty or that it is any way related to the one-time incident of bronchitis in service. Nor has he asserted that. Rather, he contends that his COPD is the result of cigarettes he was given and smoked during active duty. While the Veteran is competent to report having experienced breathing symptoms, he is not competent to provide a diagnosis in this case or determine the causation of a current disability. He is also not competent to opine that any current disability of COPD is related to service. These issues are medically complex, as they require 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 (Fed. Cir. 2007). With regard to obtaining a VA examination with an opinion regarding the etiology of the Veteran’s COPD the Board notes that while there is competent medical evidence of a current disability, there is no indication in the record, to include any competent evidence of record (other than the Veteran’s lay assertions) showing that his COPD is related to service. See McLendon v. Nicholson, supra. He also has not submitted any lay or medical evidence that he had symptoms or diagnoses of COPD related to service. Regarding the contention that the Veteran’s COPD is related to tobacco products in service, a disability will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran’s use of tobacco products during service. 38 C.F.R. § 3.300. As such, VA’s duty to provide an examination with an opinion is not triggered, and therefore a VA examination is neither necessary nor warranted. Id. REASONS FOR REMAND Entitlement to service connection ischemic heart disease with pacemaker to include as due to herbicide agents and bladder cancer is remanded. The Veteran seeks service connection for ischemic heart disease with pacemaker which he contends is due to herbicide agents. He also seeks service connection for bladder cancer. The Veteran’s VA treatment records document that the Veteran has a cardiac disability with diagnoses including atherosclerotic coronary artery disease; his condition required the implantation of a pacemaker. See e.g., October 2016 Cardiology Outpatient Consult, Iowa City VA Medical Center and January 2017 Cardiology Note, Iowa City VA Medical Center. The Veteran also has a diagnosis of bladder cancer which VA treatment records indicated remains an active problem. See Physician Emergency Department Note, December 2016 Iowa City VA Health Care Service. The Board notes that a December 1961 service treatment record documented exposure to ionizing radiation from the U.S. Army Chemical Corps School. The Veteran’s service personnel records further indicated that he attended the United States Army Chemical Corps School in Fort McClellan, Alabama. See March 1963 USA Chemical School Form 3. VA has recognized that some members of the U.S. Army Chemical Corps School, Army Combat Development Command Chemical/Biological/ Radiological Agency, Army Military Police School, and Women’s Army Corps, among others, may have been exposed to one or more of several hazardous materials during their service at Fort McClellan. “Potential exposures could have included, but are not limited to, the following: radioactive compounds (cesium-137 and cobalt-60) used in decontamination training activities in isolated locations on base; chemical warfare agents (mustard gas and nerve agents) used in decontamination testing activities in isolated locations on base; and airborne polychlorinated biphenyls (PCBs) from the Monsanto plant in the neighboring town.” See http://www.publichealth.va.gov/exposures/fort-mcclellan/. Accordingly, The Board finds that VA’s duty to assist is triggered and remand is warranted for further development. Specifically, the Agency of Original Jurisdiction (AOJ) should attempt to verify the Veteran’s alleged exposure to hazardous materials and/or herbicide agents while stationed at Fort McClellan. Appropriate development through the U.S. Joint Services Records Research Center (JSRRC) or any other appropriate agency should be undertaken to assess the likelihood and extent of the Veteran’s exposure to any hazardous materials and/or herbicide agents at Fort McClellan U.S. Army Chemical Corps School. The Board notes that, if exposure to hazardous materials and/or herbicide agents is established, the AOJ should provide VA medical opinions for the conditions that are not entitled to presumptive service connection. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Undertake appropriate development with the JSRRC and/or other appropriate agency to assess the likelihood and extent of the Veteran’s chemical or hazardous materials exposure at Ft. McClellan (where service personnel records show that he was stationed in 1961 and in 1963). 3. Ask the appropriate custodians to search the Veteran’s unit histories and any other pertinent sources for evidence relating to the Veteran’s possible exposure to ionizing radiation, to include whether the Veteran participated in a “radiation-risk activity.” Such search should address whether the Veteran was otherwise exposed to radiation while in service in addition to the exposure identified in the Veteran’s service treatment records. 4. To the extent that it is determined the Veteran did not participate in a “radiation-risk activity,” but was nevertheless exposed to ionizing radiation, after obtaining all pertinent records, forward the Veteran’s claims file to the VA Under Secretary for Health for preparation of a dose estimate. 5. Then, if the VA Under Secretary for Health, in preparing a dose estimate, determines that the Veteran was exposed to ionizing radiation, forward the Veteran’s claims file to the VA Under Secretary for Benefits for consideration in accordance with 38 C.F.R. § 3.311(c). 6. Following the above development as required, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s ischemic heart disease and bladder cancer. The Veteran’s claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination and that review should be noted. A pertinent medical history should be offered, and the examiner should provide opinions responding to the following: Is it at least as likely as not (50 percent or better probability) that the Veteran’s ischemic heart disease and bladder cancer are related to his active duty service? To the extent that chemical agents or hazardous materials exposure is verified, the examiner should opine whether it is at least as likely as not (50 percent or better probability) that the Veteran’s ischemic heart disease and/or bladder cancer are related to those exposures. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.