judge_norm: KEITH W ALLEN

condition: liver

disposition: remanded

text:
Citation Nr: 1018000
Decision Date: 05/14/10    Archive Date: 05/26/10

DOCKET NO.  07-36 410	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington

THE ISSUES

1.  Entitlement to service connection for posttraumatic
stress disorder (PTSD).

2.  Entitlement to service connection for Hepatitis C.

REPRESENTATION

Appellant represented by:	Ellie Halpern, Attorney at Law

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel

INTRODUCTION

The Veteran had active military service from October 1970 to
March 1973.

An October 1983 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Seattle, Washington,
initially considered and denied the Veteran's claim for
service connection for a psychiatric disorder
("nervous condition"), including a history of sociopathic
personality and
manic-depressive psychosis.  The RO notified him of that
decision later that same month, and he did not appeal, so
that decision became final and binding on him based on the
evidence then of record.  38 U.S.C.A. � 7105 (West 2002);
38 C.F.R. �� 3.160(d), 20.200, 20.302, 20.1103 (2009).

The RO subsequently, in September 1992, denied a petition to
reopen this claim, concluding there was not new and material
evidence.  38 C.F.R. � 3.156(a) (1992).  And although
notified of that decision later that same month, the Veteran
again did not appeal, so that decision also is final and
binding on him based on the evidence then of record.
38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. �� 3.160(d),
20.200, 20.302, 20.1103 (2009).

This current appeal to the Board of Veterans' Appeals (Board)
originated from an even more recent May 2006 RO decision that
denied service connection for Hepatitis C and PTSD,
specifically.  And because those prior RO decisions in
October 1983 and September 1992 had not considered PTSD,
specifically, the Veteran was not required to first submit
new and material evidence to reopen his claim for a
psychiatric disorder to the extent it was predicated on the
notion that he had PTSD related to his military service.  See
Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996) (where a
prior claim for service connection has been denied,
and a current claim contains a different diagnosis, even one
producing the same symptoms in the same anatomic system, a
new decision on the merits is required).  See also Boggs v.
Peake, 520 F.3d 1330 (Fed. Cir. 2008); cf. Spencer v. Brown,
4 Vet. App. 283, 288 (1993).  But see, too, a more recent
decision, Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir.
2009), wherein the Court held, among other things, that
separate theories in support of a claim for benefits for a
particular disability does not equate to separate claims for
benefits for that disability.

The RO notified the Veteran of that May 2006 decision that
same month, and in response he filed a timely Notice of
Disagreement (NOD) in June 2006 requesting reconsideration of
that decision denying his claim for PTSD and indicating his
willingness to report for a VA compensation examination
concerning this claim.  38 C.F.R. � 20.201 (2009); see also
Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002).

The Veteran subsequently had this VA compensation examination
and in April 2007, after considering the results of that
mental status evaluation and other relevant evidence, the RO
issued another decision confirming the prior denial of
service connection for PTSD.  The RO also denied service
connection for depression and schizophrenia, as well as for
several other disorders not pertinent, but without first
determining whether there was new and material evidence to
reopen the claim to the extent it concerned any psychiatric
disorder previously considered and denied in the earlier
October 1983 and September 1992 decisions.  Notably,
according to 38 C.F.R. � 3.384, schizophrenia (though not
depression) is a type of psychosis, so the RO's threshold
preliminary determination concerning the claim for
schizophrenia should have been whether there was new and
material evidence to reopen this claim since those earlier
October 1983 and September 1992 decisions already had
considered whether service connection was warranted for a
psychosis of any sort.

In any event and despite that failing, the Veteran's
September 2007 NOD in response to that April 2007 decision
only addressed his claim for service connection for PTSD,
specifically.  The same is true of his more recently
submitted November 2007 substantive appeal (VA Form 9 and
attachment).  So only this claim for PTSD - not any other
psychiatric disorder, is currently before the Board (that is,
aside from his claim for Hepatitis C).  But see, too, Clemons
v. Shinseki, 23 Vet App 1 (2009), indicating the scope of a
mental health disability claim includes any mental disability
that reasonably may be encompassed by the claimant's
description of the claim, reported symptoms, and the other
information of record.

As support for his claims for PTSD and Hepatitis C, the
Veteran testified at a hearing at the RO in October 2009
before the undersigned Veterans Law Judge of the Board
(Travel Board hearing).  The record was held open for 30 days
following the hearing to allow the Veteran time to obtain and
submit additional supporting evidence - in particular, buddy
statements, but he never did.

Because, however, the claim for service connection for PTSD
requires further development, the Board is remanding this
claim to the RO via the Appeals Management Center (AMC) in
Washington, DC.  Whereas the Board is going ahead and
deciding the claim for Hepatitis C.

FINDING OF FACT

Hepatitis C is not shown during service and there is no
competent and credible, i.e., probative evidence linking this
disease to the Veteran's military service.

CONCLUSION OF LAW

The Veteran's Hepatitis C was not incurred or aggravated in
service.  38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R. �
3.303 (2009).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA
has duties to notify and assist a claimant in substantiating
a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. ��
3.102, 3.156(a), 3.159 and 3.326(a) (2009).

Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
obtain and assist the claimant in obtaining; and (3) that the
claimant is expected to provide.  See 38 C.F.R. �
3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-
74 (2002).

These VCAA notice requirements apply to all five elements of
a service-connection claim, including the downstream
disability rating and effective date elements.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Ideally, VCAA notice should be provided prior to an initial
unfavorable decision on a claim by the RO.  Pelegrini v.
Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If,
however, for whatever reason it was not, or the notice
provided was inadequate, this timing error can be effectively
"cured" by providing any necessary VCAA notice and then going
back and readjudicating the claim - such as in a statement
of the case (SOC) or supplemental SOC (SSOC), such that the
intended purpose of the notice is not frustrated and the
Veteran is given an opportunity to participate effectively in
the adjudication of his claim.  See Mayfield v. Nicholson,
499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett
v. Nicholson, 20 Vet. App. 370, 376 (2006).

In Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007),
the U.S. Court of Appeals for the Federal Circuit held that
any error in a VCAA notice, concerning any element of a
claim, is presumed prejudicial, and that VA then bears the
burden of rebutting this presumption.  But in Shinseki v.
Sanders, 129 S. Ct. 1696 (2009), the Supreme Court of the
United States reversed the lower Federal Circuit's holding.
The Supreme Court held that the Federal Circuit had placed an
"unreasonable evidentiary burden upon the VA..." by creating
a presumption of prejudice with regard to deficient VCAA
notice. (slip. op. at 11).  The Supreme Court reiterated that
"the party that 'seeks to have a judgment set aside because
of an erroneous ruling carries the burden of showing that
prejudice resulted.'"  Id., citing Palmer v. Hoffman, 318 U.
S. 109, 116 (1943); see also Tipton v. Socony Mobil Oil Co.,
375 U. S. 34, 36 (1963) (per curiam); United States v. Borden
Co., 347 U. S. 514, 516-517 (1954); cf. McDonough Power
Equipment, Inc. v. Greenwood, 464 U. S. 548, 553 (1984);
Market Street R. Co. v. Railroad Comm'n of Cal., 324 U. S.
548, 562 (1945) (finding error harmless "in the absence of
any showing of . . . prejudice").  The Supreme Court
emphasized that its holding did not address the lawfulness of
the U.S. Court of Appeals for Veterans Claims' reliance on
the premise that a deficiency with regard to informing a
Veteran about what further information was necessary to
substantiate his claims had a "natural effect" of prejudice,
but that deficiencies regarding what portions of evidence VA
would obtain and what portions the Veteran must provide did
not. (slip. op. at 3).

Prejudicial deficiencies in the timing or content of a VCAA
notice can be cured by showing the essential fairness of the
adjudication will not be affected because:  (1) the defect
was cured by actual knowledge on the part of the claimant,
see Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008),
overturned on other grounds in Vazquez-Flores v. Shinseki,
2009 WL 2835434 (Fed.Cir.) ("Actual knowledge is established
by statements or actions by the claimant or the claimant's
representative that demonstrates an awareness of what was
necessary to substantiate his or her claim.") (citing Dalton
v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a
reasonable person could be expected to understand from the
notice what was needed; or (3) that a benefit could not have
been awarded as a matter of law. Sanders, 487 F. 3d at 889.
Additionally, consideration also should be given to "whether
the post-adjudicatory notice and opportunity to develop the
case that is provided during the extensive administrative
appellate proceedings leading to the final Board decision and
final Agency adjudication of the claim ... served to render
any pre-adjudicatory section 5103(a) notice error non-
prejudicial."  Vazquez-Flores, 22 Vet. App. at 46.  See also
Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding
the Board had erred by relying on various post-decisional
documents for concluding adequate 38 U.S.C.A. � 5103(a)
notice had been provided to the appellant, the Court
nonetheless determined the evidence established the Veteran
was afforded a meaningful opportunity to participate
effectively in the adjudication of his claims, and therefore
found the error harmless).

In this particular case at hand, with respect to the claim
for service connection for Hepatitis C, a letter satisfying
the notice requirements of 38 C.F.R. � 3.159(b)(1) was sent
to the Veteran in February 2006.  That letter was sent prior
to initially adjudicating his claim in May 2006, so the
preferred sequence.  That letter informed him of the evidence
required to substantiate his claim and of his and VA's
respective responsibilities in obtaining supporting evidence.
That letter did not comply with Dingess, as he was not also
apprised of the downstream disability rating and effective
date elements of his claim, but this is nonprejudicial, i.e.,
harmless error.  38 C.F.R. � 20.1102.  Since the Board will
conclude below that the preponderance of the evidence is
against his underlying claims for service connection for
Hepatitis C, the downstream disability rating and effective
date elements of this claim are ultimately moot.

VA also fulfilled its duty to assist the Veteran by obtaining
all relevant evidence in support of this claim that is
obtainable, and therefore appellate review may proceed
without prejudicing him.  38 U.S.C.A. � 5103A; 38 C.F.R. �
3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).
The RO obtained the Veteran's service treatment records
(STRs) and VA and private treatment records.  The Board also
sees that VA outpatient treatment records dated in April 1999
refer to the Veteran receiving an SSD payment, apparently
referencing Social Security Administration (SSA) disability
payments.  Generally, where there has been a determination
with regard to SSA benefits, the records concerning that
decision must be obtained.  Murincsak v. Derwinski, 2 Vet.
App. 363 (1992).

Here, however, there is no indication these records are
pertinent to the claim for service connection for Hepatitis
C, specifically, so the Board need not obtain them.  Golz v.
Shinseki, No. 2009-7039 (Jan. 4, 2010).  Under the VCAA, VA
is only obligated to obtain records that are adequately
identified and potentially relevant.  38 U.S.C.A. � 5103A(b),
(c).

The Board is satisfied the RO made reasonable efforts to
obtain any identified medical and other records.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim for Hepatitis C that has not been
obtained.  Also, an opinion is not needed to determine
whether the Veteran's Hepatitis C is related to his military
service because the standards of the Court's decision in
McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been
met.  There is no competent and credible evidence of
Hepatitis C during service or of a correlation or
relationship between this condition and anything that
occurred during or coincident with the Veteran's service that
is not willful misconduct.  See also 38 U.S.C.A. � 5103A(d);
38 C.F.R. � 3.159(c)(4).  There is only his unsubstantiated
allegation, which is insufficient reason, alone, to schedule
a VA compensation examination for a medical nexus opinion
concerning this determinative issue.  See Waters v. Shinseki,
No. 2009-7071 (April 6, 2010); Duenas v. Principi, 18 Vet.
App. 512, 519 (2004).  The Board is therefore satisfied that
VA has provided all assistance required by the VCAA. 38
U.S.C.A. � 5103A.

Service Connection

Service connection may be granted if the evidence shows a
current disability resulted from an injury or a disease that
was incurred or aggravated during active military service.
38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).

Stated somewhat differently, to establish entitlement to
service connection, there must be:  (1) a medical diagnosis
of current disability; (2) medical or, in certain cases, lay
evidence of in-service occurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus or link
between an in-service injury or disease and the current
disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999),
citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78
F.3d 604 (Fed. Cir. 1996).  See, too, Boyer v. West, 210 F.3d
1351, 1353 (Fed. Cir. 2000).

A disorder may be service connected if the evidence of record
reveals the Veteran currently has a disorder that was chronic
in service or, if not chronic, that was seen in service with
continuity of symptomatology demonstrated subsequent to
service.  38 C.F.R. � 3.303(b); Savage v. Gober, 10 Vet. App.
488, 494-97 (1997).  For the showing of chronic disease in
service, there is a required combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic."  38 C.F.R. � 3.303(b).
Evidence relating a current disorder to service must be
medical, unless it concerns a disorder that is capable of lay
observation and diagnosis.

A layperson is generally incapable of opining on matters
requiring medical knowledge.  Routen v. Brown, 10 Vet. App.
183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434
(Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).

However, 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, (e.g., a
broken leg, separated shoulder, varicose veins, etc.), (2)
the layperson is reporting a contemporaneous medical
diagnosis, or (3) lay testimony describing symptoms at the
time supports a later diagnosis by a medical professional.
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14,
2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.
2007).

In essence, lay testimony is competent when it regards the
readily observable features or symptoms of injury or illness
and "may provide sufficient support for a claim of service
connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).
See also 38 C.F.R. � 3.159(a)(2).  A determination as to
whether medical evidence is needed to demonstrate that a
Veteran presently has the same condition he or she had in
service or during a presumption period, or whether lay
evidence will suffice, depends on the nature of the Veteran's
present condition (e.g., whether the Veteran's present
condition is of a type that requires medical expertise to
identify it as the same condition as that in service or
during a presumption period, or whether it can be so
identified by lay observation).  Savage, 10 Vet. App. 488,
494-97 (1997).  When a condition may be diagnosed by its
unique and readily identifiable features, the presence of the
disorder is not a determination "medical in nature" and is
capable of lay observation.  In such cases, the Board is
within its province to weigh that testimony and to make a
credibility determination as to whether that evidence
supports a finding of service incurrence and continuity of
symptomatology sufficient to establish service connection.
See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Disorders diagnosed after discharge may still be service
connected if all the evidence, including relevant service
records, establishes the disorder was incurred in service.
38 C.F.R. � 3.303(d).

The commonly accepted risk factors for Hepatitis C include
intravenous (IV) drug use, blood transfusions before 1992,
hemodialysis, intranasal cocaine,
high-risk sexual activity, accidental exposure while a health
care worker, and various kinds of percutaneous exposure such
as tattoos, body piercing, acupuncture with non-sterile
needles, shared toothbrushes or razor blades.  VBA letter
211B
(98-110) November 30, 1998.  Veterans may have been exposed
to the Hepatitis C virus (HCV) during the course of their
duties as a military corpsman, medical worker, or as a
consequence of being a combat Veteran.  See VBA Fast Letter
04-13 (June 29, 2004).  .

The Veteran asserts that he contracted Hepatitis C while in
the military when he received inoculations (air injections)
with a vaccination gun.

Review of the Veteran's STRs shows he received several
immunization inoculations, but these records do not specify
the method of inoculation.  And, in any event, his STRs are
otherwise completely unremarkable for any relevant
complaints, findings, treatment, or diagnoses referable to
Hepatitis C.  His military service ended in March 1973.

A June 1983 private hospital record from a decade later shows
the Veteran received treatment for a palpable liver probably
secondary to alcoholism and with tenderness suggestive of
alcoholic hepatitis.  It was reported he had a history of
polydrug use.  A VA psychiatric examination was performed in
April 1988.  In the report of his medical history, it was
indicated that he had used marijuana, speed, smack, and
IV cocaine, sharing a needle with another cocaine abuser.  VA
and private medical records through 1999 reiterate this drug
usage and dependence.

In a December 2001 private hospital report for an unrelated
medical condition, it was stated the Veteran recently had
received a diagnosis of Hepatitis C.  It was also stated that
he believed that, through his cocaine use, he had contracted
this disease.  In an early 2002 private medical record,
Hepatitis C again was diagnosed.  Private and VA medical
records through 2009 show additional diagnoses of Hepatitis C
and this history.

As already explained, the first and indeed perhaps most
fundamental requirement for any service-connection claim is
there must be proof the Veteran currently has the alleged
disability.  Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3
Vet. App. 223, 225 (1992) (indicating service connection
presupposes the Veteran has a diagnosis of the claimed
condition, and that, without this minimum level of proof,
there can be no valid claim).  Here, there is no disputing
the Veteran has Hepatitis C since, as mentioned, this is well
documented in his VA and private treatment records.  These
records dating from 2001 clearly confirm he has received this
necessary diagnosis.  Consequently, the determinative issue
is whether this disease is somehow attributable to his
military service - and, in particular, to the type of
transmission alleged during the inoculations he received.
See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A
determination of service connection requires a finding of the
existence of a current disability and a determination of a
relationship between that disability and an injury or disease
incurred in service.").  See, too, Maggitt v. West, 202 F.3d
1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322,
1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548
(2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir.
1998).

As explained, however, the Veteran's STRs are completely
unremarkable for evidence of relevant complaints or treatment
of Hepatitis C, or for symptoms of this condition.  And
although the absence of this type of evidence is not
altogether dispositive of his claim, it is nonetheless
probative evidence to be considered in determining whether
service connection is warranted.  See Struck v. Brown,
9 Vet. App. 145 (1996).  There is confirmation he received
immunization inoculations, yet the method of delivery of the
inoculation such as by air gun is not specified.  And even if
it was there remains no indication he received a transmission
of contaminated blood in that capacity.  Also during service
there is no evidence of any other risk factors for his
developing Hepatitis C, such as blood transfusions or organ
transplants, hemodialysis, tattoos, body piercing,
intravenous or intranasal drug use, high-risk sexual
activity, or exposure to contaminated blood products as a
health care worker, or other direct percutaneous exposure to
blood such as acupuncture with non-sterile needles and
sharing of toothbrushes or shaving razors.

Rather, it was not until many years after his military
service had ended when it was learned he had Hepatitis C, and
even then and during the several years since it always has
been attributed (even by him personally) to factors -
namely, his abuse of drugs, including via IV transmission,
unrelated to his military service.  The evidence as a whole
does not show continuity of symptomatology since service to
otherwise relate this disease back to his military service.
Instead, his post-service medical records first document his
Hepatitis C in 2001, approximately 28 years after his
separation from service.  So even accepting that Hepatitis C
may be dormant or have a latency before the associated
symptoms become evident, the lapse of so many years in this
particular instance after his separation from service and the
first documented complaint of this claimed disorder is also
probative evidence to be considered in determining whether
his hepatitis C dates back to his military service.  The
Federal Circuit Court has held that such a lengthy lapse of
time between the alleged events in service and the initial
manifestation of relevant symptoms and/or diagnosis after
service is a factor for consideration in deciding a service-
connection claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.
Cir. 2000).

The Board is charged with the duty to assess the credibility
and weight given to evidence.  Madden v. Gober, 125 F.3d
1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046
(1998).  Here, there is a significant lack of any medical
evidence suggesting an etiological relationship between the
Veteran's Hepatitis C and his military service.  In fact,
several reports are contradictory of his claim and his
assertions that he contracted Hepatitis C through service
immunization inoculations.  Instead, the record includes
several medical histories dating from 1988 reporting he had a
history of polydrug, IV cocaine use, sharing a needle, and
that even he himself believed that through his cocaine use he
had contracted Hepatitis C.  Conversely, during his October
2009 Travel Board Hearing, he testified that he had not used
IV drugs prior to learning he had Hepatitis C, but his
hearing and other testimony to this effect is directly
contradicted by the medical histories dating from at least
1988 showing an extensive drug abuse history well before he
received that diagnosis of Hepatitis C.  So his lay testimony
concerning the inception of his Hepatitis C, even if
competent, is not also credible.  See Heuer v. Brown,
7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App.
398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466
(1991).  Rather, the patent inconsistencies in his lay
testimony serve to impeach his credibility.  See Macarubbo v.
Gober, 10 Vet. App. 388 (1997) (holding that the credibility
of lay evidence can be affected and even impeached by
inconsistent statements, internal inconsistency of
statements, inconsistency with other evidence of record,
facial implausibility, bad character, interest, bias, self-
interest, malingering, desire for monetary gain, and witness
demeanor).  Competency of lay testimony must be distinguished
from the credibility of it, and its probative value is
ultimately determined by considering both.  See Rucker v.
Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App.
465, 469 (1994) (distinguishing between competency ("a legal
concept determining whether testimony may be heard and
considered") and credibility ("a factual determination going
to the probative value of the evidence to be made after the
evidence has been admitted")).

The Board emphasizes that, although the Veteran is competent
to report any symptoms or risk factors of Hepatitis C he
previously had or currently has, he is not competent to
render an opinion on the medical etiology of his Hepatitis C,
absent evidence showing that he has the requisite medical
training or expertise.  See Buchanan v. Nicholson, 451 F. 3d
1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as
potentially competent to support presence of disability, even
where not corroborated by contemporaneous medical evidence,
but also indicating the Board retains the discretion to make
credibility determinations and otherwise weigh the evidence
submitted, including lay evidence).

For these reasons and bases, the Board concludes that the
preponderance of the evidence is indeed against the claim of
entitlement to service connection for Hepatitis C.
Consequently, there is no reasonable doubt to resolve in the
Veteran's favor, and this claim must be denied. 38 U.S.C.A. �
5107(b); 38 C.F.R. � 3.102.  See also Gilbert v. Derwinski, 1
Vet. App. 49, 53 (1990

ORDER

Service connection for Hepatitis C is denied.

REMAND

The Veteran's remaining claim for service connection for PTSD
is partly predicated on the notion that he was sexually
assaulted while serving aboard the USS Kitty Hawk.  See his
August 2005 statement recounting this stressor.

If, as here, a PTSD claim is based at least in part on in-
service personal assault, then evidence from sources other
than the Veteran's service records may corroborate his
account of the stressor incident.  Examples of such evidence
include, but are not limited to:  records from law
enforcement authorities, rape crisis centers, mental health
counseling centers, hospitals, or physicians; pregnancy tests
or tests for sexually transmitted diseases; and statements
from family members, roommates, fellow service members, or
clergy.  38 C.F.R. � 3.304(f)(4) (2009).

38 C.F.R. � 3.304(f)(4) also provides that VA will not deny a
PTSD claim that is based on in-service personal assault
without first advising the claimant that evidence from
sources other than his service records or evidence of
behavior changes may constitute credible supporting evidence
of the stressor and allowing him the opportunity to furnish
this type of evidence or advise VA of potential sources of
such evidence.  See, too, YR v. West, 11 Vet. App. 393, 399
(1998) and Patton v. West, 12 Vet. App. 272, 279-280 (1999).

The May 2006 RO decision denying this claim references the
Veteran's personal assault assertions, yet there is no
indication that any prior to even subsequent VA notice letter
advised him of the alternative sources of evidence that might
constitute credible supporting evidence of the claimed sexual
assault.  So he has to receive this � 3.304(f)(4) notice, and
have the opportunity to submit or identify the existence of
this type of evidence, before deciding this claim.

Accordingly, this claim is REMANDED for the following
additional development and consideration:

1.  Since his claim for service connection
for PTSD is partly predicated on a
personal (sexual) assault, provide the
Veteran the type of notice contemplated by
38 C.F.R. � 3.304(f)(4).  This letter must
advise him that evidence from sources
other than his service records may
corroborate his account of the personal
assault stressor.  Examples of such
evidence include, but are not limited to:
records from law enforcement authorities,
rape crisis centers, mental health
counseling centers, hospitals,
or physicians; pregnancy tests or tests
for sexually transmitted diseases; and
statements from family members, roommates,
fellow service members, or clergy.  Ask
that he provide or identify any evidence
like this from sources other than his
service records that might corroborate his
claimed stressor.

2.  Based on his response to this request,
determine whether there is any additional
evidence that needs to be considered by a
VA compensation examiner in determining
whether the Veteran has PTSD as a result
of that alleged assault.  [Note:  since he
already has had a VA compensation
examination in connection with his claim
for PTSD, an additional examination or
supplemental review of the file would only
be necessary if there is additional
evidence that was not considered during
the prior examination.]

3.  Then readjudicate the claim for
service connection for PTSD in light of
all additional evidence.  If this claim is
not granted to the Veteran's satisfaction,
send him and his representative a SSOC and
give them time to respond to it before
returning the file to the Board for
further appellate consideration of this
remaining claim.

The Veteran has the right to submit additional evidence and
argument concerning the claim 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 Supp. 2009).

______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: ERIC S LEBOFF

disposition: granted

condition: psychiatric

text:
Citation Nr: 1019000
Decision Date: 05/24/10    Archive Date: 06/04/10

DOCKET NO.  07-20 755A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUE

Entitlement to service connection for an acquired psychiatric
disorder, to include posttraumatic stress disorder (PTSD) and
a depressive disorder.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel

INTRODUCTION

The Veteran had active duty service from July 1967 to June
1971 and from July 1974 to August 1976.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2006 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that the Veteran was originally denied
service connection for PTSD in the May 2006 rating decision.
However, the evidence of record demonstrates that the Veteran
has also been diagnosed with a depressive disorder.  The
Board has amended the issue in order to more adequately
reflect the claim with respect to the evidence of record.
See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Veteran testified at a Travel Board hearing before the
undersigned Acting Veterans Law Judge in March 2010 in
Cleveland, Ohio.  A transcript of that hearing is associated
with the claims file.

FINDINGS OF FACT

1.  The Veteran was diagnosed with a depressive neurosis in
August 1976 and has had chronic and continuous symptoms since
that time.

2.  The Veteran did not engage in combat with the enemy.

3.  Credible, independent evidence has been received
establishing that the claimed
in-service stressor occurred.

4.  The preponderance of the evidence demonstrates that the
Veteran's PTSD symptoms are linked to the corroborated in-
service stressor.

CONCLUSION OF LAW

The criteria for service connection for an acquired
psychiatric disorder, to include PTSD and a depressive
disorder, have been met.  38 U.S.C.A. �� 1110, 1131, 5107
(West 2002); 38 C.F.R. �� 3.102, 3.303, 3.304 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans' Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002) redefined VA's duty to assist the veteran in the
development of a claim.  VA regulations for the
implementation of the VCAA were codified as amended at 38
C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2005).

In light of the favorable decision with regard to the issue
of service connection for an acquired psychiatric disorder,
to include PTSD and a depressive disorder, no further
discussion of VCAA compliance is necessary.

Analysis

The Board has reviewed all of the evidence in the Veteran's
claims file.  Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the Veteran or
obtained on his behalf be discussed in detail.  Rather, the
Board's analysis below will focus specifically on what
evidence is needed to substantiate the claim and what the
evidence in the claims file shows, or fails to show, with
respect to the claim.  See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).

Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. �
3.303 (2009).  Evidence of continuity of symptomatology from
the time of service until the present is required where the
chronicity of a condition manifested during service either
has not been established or might reasonably be questioned.
38 C.F.R. � 3.303(b) (2009).  Regulations also provide that
service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disability was
incurred in service.  38 C.F.R. � 3.303(d) (2009).

In general, in order to prevail on the issue of service
connection, in general, there must be medical evidence of a
current disability; medical evidence, or in certain
circumstances, 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.  See Hickson v. West, 12 Vet. App. 247,
253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303
(2007); Pond v. West, 12 Vet App. 341, 346 (1999).

Moreover, service connection for PTSD requires medical
evidence diagnosing the condition in accordance with 38
C.F.R. � 4.125(a) [i.e., under the criteria of Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition (DSM-
IV)]; a link, established by medical evidence, between the
Veteran's current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service
stressor occurred.  38 C.F.R. � 3.304(f) (2009).

If the evidence establishes that the Veteran engaged in
combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions and hardships
of the Veteran's service, the Veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor.  See 38 C.F.R. � 3.304(f)(2) (2009).

If, however, the Veteran did not serve in combat, or if the
claimed stressor is not related to combat, there must be
independent evidence to corroborate the Veteran's statement
as to the occurrence of the claimed stressor.  See Doran v.
Brown, 6 Vet. App. 283, 288-89 (1994).  The Veteran's
testimony alone cannot establish the occurrence of a non-
combat stressor.  See Dizoglio v. Brown, 9 Vet. App. 163, 166
(1996).  Furthermore, an opinion by a medical health
professional based on post-service examination of the Veteran
cannot be used to establish the occurrence of a stressor.
See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996).

In this case, the Veteran contends that he should be service-
connected for PTSD because he has a current diagnosis of
PTSD, and because he has a verified stressor in service.
Specifically, he witnessed the multiple explosions of Ammo
Supply Point One (ASP-1) in April 1969, which he describes in
his March 2010 hearing as the "largest sub-nuclear series of
explosions" in the history of the world.  Additionally, the
Veteran and his representative allege that the Veteran should
be service connected because he was diagnosed with a
depressive disorder in service in August 1976, medically
discharged to a VA Hospital at that time, currently has a
diagnosis of a depressive disorder, and states that the
condition has been ongoing since that time.

The Veteran's DD Form 214 indicates that the Veteran served
in the United States Marine Corps from July 1967 to June 1971
as an imagery interpreter equipment repair technician.  The
Veteran's service personnel records from that time indicate
that he served in the Republic of Vietnam in Da Nang, Vietnam
with the VMCJ1 Marine Aircraft Group 11 (MAG-11) from
September 1968 through May 1970.  The Veteran received
several medals, including Vietnam Service Medal with a Bronze
and Silver Service Star, the Republic of Vietnam Campaign
Medal, and the Vietnamese Cross of Gallantry with a palm.
None of the medals received, however, are sufficient to
establish that the Veteran engaged in combat.

The Veteran's service personnel and treatment records from
his second period of active service with the United States
Army indicate that he had a few instances of excessive
drinking during this time, as well as bouts of depression.
Two statements from the Veteran's commanding officers
document several periods of depression and excessive
drinking.  The Veteran was referred to and attended a drug
and alcohol program, as well as group therapy during this
period of service.  The Veteran was admitted to a VA hospital
a week prior to his discharge from service in August 1976, at
which time he was diagnosed with habitual excessive drinking
and depressive neurosis.  In that August 1976 VA hospital
report, the Veteran reported having depression off and on for
a number of years.  The Veteran was discharged from the
hospital in September 1976, after his separation from
service.  The psychiatric box was left blank in the Veteran's
August 1976 separation examination and there was no
indication of any psychiatric problem listed.  However, the
evidence of record is clear that the Veteran was receiving
psychiatric care at the VA hospital at the time of his
separation from service.

The Veteran began seeking mental health care with VA in 2004.
At that time, he gave a history of intermittent depression
since discharge from service.  He reported heavy drinking for
the past 10 years, but indicated that he had been sober for
13 years prior to that.  The Veteran was diagnosed with a
chronic mental illness - for anxiety/depression, not
otherwise specified - and was noted as having a positive
PTSD screen.  In September 2004, he reported a 35-year
history of depression.  The Veteran left before he could be
treated at that time.

In a VA psychiatric assessment in October 2004, the Veteran
reported that he had been depressed all of his life, but more
so recently since he was unable to work.  He gave the same
history of alcohol abuse as noted above, and further
indicated that he used marijuana a few times a week.  The
Veteran was diagnosed with alcohol dependence, cannabis
abuse, and a depressive disorder.  It was noted, however,
that PTSD was possible, but further evaluation was needed.

A report dated in April 2006 reflects a report of depression
for the past year since he was unemployed.  He further
reported ongoing alcohol and marijuana use until he quit both
in December 2004.  The Veteran reported that he drank heavily
since his discharge from service until a 13-year period of
sobriety which ended in 1994.  At that time, the Veteran
again began using alcohol and marijuana.  The Veteran gave a
history of depression since service which he was always able
to pull himself out of, but that he could not pull himself
out of it at that time.  The examiner noted that the Veteran
rationalized his marijuana and alcohol use because he did not
think he had a problem.  The examiner diagnosed the Veteran
with alcohol dependence and marijuana abuse, both in early
remission, as well as a diagnosis of a depressive disorder,
not otherwise specified, rule out substance-induced mood
disorder.  A June 2007 VA psychiatric note indicated the same
diagnoses, but at this time, included a diagnosis of PTSD.

The Veteran underwent a VA examination in December 2007.  The
examiner noted the Veteran's service history of a depressive
neurosis in 1976; he further noted the October 2004
psychiatric assessment, which did not note a diagnosis of
PTSD, but noted the subsequent June 2007 diagnosis of PTSD.
The examiner diagnosed the Veteran with substance-induced
mood and anxiety disorders, and noted that he could not
render a diagnosis of PTSD or any other major psychiatric
disorders until the Veteran had been completely sober for a
period of 30 days.  He opined that the two disorders he
diagnosed were not related to service.

Ongoing VA mental health treatment records, including VA
psychiatric notes from January and February 2008, indicate
that the Veteran is seen regularly for counseling, and is
diagnosed with PTSD.  The January 2008 note indicates that
the Veteran reported being irritable and angry with the
constant intrusive memories of Vietnam, particularly his
experience with the bomb explosion.  The February 2008 note
renders a specific diagnosis of PTSD and depressive disorder,
not otherwise specified, and notes that the Veteran had quit
using alcohol three years prior and only uses marijuana
occasionally whenever someone offers it to him - the last
time being the previous Christmas.

The Veteran testified in his March 2010 Travel Board hearing
that he served in Vietnam for 19 months as a Marine.  He
indicated that his entire time spent in Vietnam was at the
same site, the MAG-11 in Da Nang, Vietnam, where he worked as
a repair technician on aerial reconnaissance equipment and
later as a reconnaissance photo interpreter.  He testified
that he did not see combat, but that his position received
regular rocket and mortar fire during his military service.
The Veteran related his current psychiatric condition to a
single incident which occurred in April 1969, when ASP-1 blew
up.  He indicated that mushroom clouds and other sites of the
display could be seen for up to four or five miles away.  He
testified that he was stationed approximately a mile from the
blast site, and that he felt the concussion waves from each
successive explosion.  The incident, he reported, lasted
about 14 hours.  The Veteran testified that he saw Captain
(Cpt.) G.S. during that incident in the troop's quarter area,
and testified that he was the only officer he saw that day.
He indicated that he had submitted a letter from Cpt. G.S.
which corroborated his story.

The Veteran further testified that he was seen in August 1976
by the VA hospital prior to discharge from active duty, at
which time he was diagnosed with a depressive disorder.  The
Veteran admitted that he would excessively drink at that
time, but that he was never drunk on duty.  He testified that
he drank to forget the bomb dump explosion and other things
relating to his military experience.  He stated that his
substance abuse is a symptom of his PTSD and depression.

The Veteran submitted a written statement at the same time of
his March 2010 hearing which reiterated many of the things he
testified to during his hearing.  He indicated in that
statement that he was diagnosed in June 2007 with PTSD, and
that he receives ongoing counseling with VA.  He stated that
he served in Vietnam, and acknowledged that his decorations
do not indicate he served in combat.  He also indicated that
he had corroborated the ASP-1 bomb explosion incident with
the evidence in the record.

The Board notes that the Veteran submitted an April 2008
letter from Cpt. G.S., an officer the Veteran served with in
Vietnam at the time of the ASP-1 incident.  The Veteran's
letter and pictures sent to G.S. are of record.  The
Veteran's letter asked Cpt. G.S. to confirm that the Veteran
was present at the time of the ASP-1 bomb explosion.  The
Veteran's letter stated that he saw Cpt. G.S. at the time of
the explosion when he was checking on the enlisted men in the
MAG-11 hut area.  He described Cpt. G.S., a gym that they
both worked out at, and some of G.S.'s mannerisms.  In his
April 2008 letter, Cpt. G.S. specifically acknowledged that
he was an officer for the MAG-11 site in Da Nang, Vietnam
during the period indicated by the Veteran in his letter, and
he specifically acknowledged that he recognized the Veteran
in the pictures sent to him as someone from his time in Da
Nang, Vietnam.  G.S. also noted that the Veteran's
description of both him and the gym that they both worked out
at, as well as some of G.S.'s specific mannerisms in his
letter sent to G.S., were accurate descriptions, particularly
G.S.'s propensity to kick people out of the gym for smoking
and running backwards as a form of exercise.  G.S. notes that
he was present for the ASP-1 bomb explosion incident, and
that he spent a good deal of time in the enlisted man's
quarters that day.  He noted that he was one of the few
officers to have done so.  He stated that if the Veteran
remembered him walking into the troop's quarters when the
bomb dump went off, "he must have been there."

The Veteran has submitted other statements from other
servicemen that corroborate the date he gave for the ASP-1
incident, as well as pictures of the incident.  He also
submitted articles on the history of the ASP-1 incident in
April 1969.

The Board finds that the evidence warrants service connection
here.  Specifically, the Board notes the consistent rendering
of a diagnosis of a depressive disorder throughout the VA
treatment records.  The Board further notes the Veteran's
diagnosis of a depressive neurosis prior to discharge from
service in August 1976.  According to the Veteran's history,
which has been consistent, he has been depressed off and on
since his discharge from service.  In September 2004, the
Veteran specifically reported an approximate 35-year history
of depression, which dates back to his time in service.
Given these factors, continuity of depressive disorder is
established such as to link the current diagnosis to active
service.

Given the weight of the evidence of record, the Board finds
that service connection is warranted for the depressive
disorder because he was diagnosed with this disorder in
service and it has been chronic and continuous since that
time.  See 38 C.F.R � 3.303(b).

With respect to the Veteran's claimed PTSD, the Board notes
that the Veteran showed a positive PTSD screen in June 2004,
though a formal diagnosis was not rendered until June 2007.
The Veteran has been receiving counseling for his PTSD
symptoms with VA since January 2005.  The Board therefore
finds that the Veteran has a current diagnosis of PTSD,
specifically as noted in the June 2007, January 2008 and
February 2008 VA psychiatric notes.  Thus, the Board finds
that the Veteran has a current PTSD disability.  See McCain
v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a
current disability be present is satisfied "when a claimant
has a disability at the time a claim for VA disability
compensation is filed or during the pendency of the claim . .
. even thought the disability resolves prior to the
Secretary's adjudication of the claim.").

As noted above, the Veteran's DD Form 214 does not indicate
that a military occupational specialty related to combat, nor
were the medals the Veteran received demonstrative of combat.
In fact, the Veteran indicated in his March 2010 hearing that
he was not involved in combat, though he was subjected to
rocket and mortar attacks in service while in Da Nang,
Vietnam.  Those rocket and mortar attacks have not been
corroborated in the record.  Thus, the Board finds that the
Veteran did not serve in combat.  See 38 U.S.C.A. � 1154(b).

Since the Veteran did not serve in combat his lay testimony
alone cannot serve to corroborate his alleged in service
stressors.  See 38 C.F.R. � 3.304(f); Dizoglio, supra.  In
order to corroborate the non-combat stressor - the April
1969 ASP-1 bomb explosion incident - the Veteran has
submitted articles and statements from veterans corroborating
the timeframe of the incident, as well as the documentation
of the incident with pictures, which match the Veteran's
description of huge mushroom clouds.  Furthermore, the
Veteran has submitted a statement from Cpt. G.S. which
indicates that he recognized the Veteran as someone who
served with him in Da Nang, Vietnam about the time of the
incident.  He confirmed the Veteran's description of the gym
they both worked out at, and he confirmed the Veteran's
general description of himself and his mannerisms.  While
G.S.'s statement does not specifically place the Veteran as
present during the ASP-1 bomb explosion, the Board finds that
G.S.'s statement sufficiently places the Veteran as being
stationed in the area at the time of the incident.  The Board
also notes that the Veteran's personnel records and lay
testimony both demonstrate that the Veteran was consistently
stationed at the MAG-11 site in Da Nang, Vietnam from
September 1968 to May 1970, which encompasses the April 1969
ASP-1 incident.  Thus, the Board finds that independent
evidence has been received which has corroborated the
Veteran's presence for the ASP-1 bomb explosion incident in
April 1969, in Da Nang, Vietnam.  See Doran, supra.

Finally, the Board notes that the Veteran's PTSD
symptomatology has been linked to the bomb explosion incident
in service, and therefore, it finds that there is a nexus
between the Veteran's PTSD and the in-service stressor.  The
Board specifically notes the January 2008 VA psychiatric note
establishes that the Veteran is angry and irritable as a
consequence of his "constant intrusive thoughts" of the
ASP-1 bomb explosion in service.  The Board finds that this
is a sufficient nexus between the diagnosed PTSD and in-
service stressor because the symptomatology associated with
the Veteran's PTSD is linked with the incident in service.
Therefore, giving the benefit of the doubt to the Veteran,
the Board finds that PTSD should be included as a component
of the service-connected psychiatric disability awarded in
the instant appeal.  See 38 C.F.R. � 3.304(f); see also 38
U.S.C.A. � 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d
1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet.
App. 49, 55-56 (1990).

Accordingly, the Board finds that service connection for an
acquired psychiatric disorder, to include PTSD and a
depressive disorder, is warranted.  See 38 C.F.R. � 3.303,
3.304(f)

ORDER

Service connection for an acquired psychiatric disorder, to
include PTSD and a depressive disorder, is granted, subject
to governing criteria applicable to the payment of monetary
benefits.

____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: JAMES L MARCH

text:
Citation Nr: 1021000
Decision Date: 06/07/10    Archive Date: 06/21/10

DOCKET NO.  04-26 425	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi

THE ISSUE

Whether new and material evidence has been received to reopen
a claim for entitlement to service connection for an acquired
psychiatric disability, including schizophrenia.

REPRESENTATION

Appellant represented by:	Penelope Gronbeck, Attorney

WITNESS AT HEARING ON APPEAL

Appellant's representative

ATTORNEY FOR THE BOARD

K. Hudson, Counsel

INTRODUCTION

The Veteran had active service from November 17, 1983, to
January 31, 1984.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a regional office (RO) rating decision
of January 2004.  In a decision dated in April 2007, the
Board denied the appeal.  The Veteran then appealed to the
U.S. Court of Appeals for Veterans Claims (Court).  In an
August 2008 joint motion for remand (JMR) to the Court, the
parties (the veteran and the VA Secretary) requested that the
Board decision be vacated and remanded; an August 2008 Court
order granted the joint motion.  Pursuant to the JMR, the
appeal was remanded by the Board in May 2009.  In March 2010,
the Veteran failed to appear for a Board hearing scheduled at
the RO (i.e., Travel Board hearing).  The appellant's
representative appeared, however, and, good cause being
shown, her testimony was accepted on the Veteran's behalf.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the
appellant if further action is required.

REMAND

In an April 1991 rating decision, the RO denied service
connection for the veteran's mental condition because,
although schizophreniform disorder was shown in service and
matured into schizophrenia within the presumptive period
following discharge, this was considered to be the natural
progression of the disorder and there is no evidence of
aggravation during the veteran's short period of military
service.

The veteran was notified of this rating decision but she did
not appeal.  Thus, this decision is final and not subject to
revision on the same factual basis.  38 U.S.C.A. � 7105(c);
38 C.F.R. � 20.1103.  The "purpose of the rule of finality
is to preclude repetitive and belated readjudication of
Veterans' benefits claims."  Cook v. Principi, 318 F.3d
1334, 1339 (Fed. Cir. 2002).  There are only two exceptions
to the rule of finality of VA decisions, i.e., challenges
based on clear and unmistakable error (CUE) in a prior, final
decision (38 U.S.C.A. �� 5109A, 7111), and reopened claims
based on new and material evidence (38 U.S.C.A. � 5108).  In
this case, the claim was developed on the basis of whether
new and material evidence had been received to reopen the
claim.

In her arguments presented on the Veteran's behalf at the
March 2010 Board hearing, the Veteran's representative
contended that the prior final decision in this case failed
to properly address the presumption of soundness.  This is
not new and material evidence, as a final decision on one
theory of entitlement is a final denial on all theories.  See
Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009).

It does, however, in this case raise the issue of CUE in the
prior final denial.  This challenge to the April 1991 rating
decision is thus inextricably intertwined with the claim to
reopen because if a prior adjudication contains clear and
unmistakable error, finality is moot.  Adjudication of the
claim based on new and material evidence must be deferred
pending initial RO consideration, in the first instance, of
the CUE challenge.  See Huston v. Principi, 18 Vet. App. 395,
402-03 (2004).

Accordingly, the case is REMANDED for the following action:

1.  Adjudicate the issue of whether there
was clear and unmistakable error in the
RO's April 1991 rating decision that
denied service connection for an acquired
psychiatric disability, specifically,
whether the presumption of soundness
applied, and, if so, whether it was
properly applied in this case.

2.  If the decision is adverse to the
Veteran, provide notice of the decision to
her and her representative, as well as of
the Veteran's appellate rights.  If no
appeal is filed and perfected as to the
CUE issue, that issue should not be
returned to the Board.

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 Supp. 2009).

_________________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2009).


judge_norm: ROBERT E SULLIVAN

disposition: denied

text:
Citation Nr: 1022000
Decision Date: 06/14/10    Archive Date: 06/24/10

DOCKET NO.  06-00 357	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wichita,
Kansas

THE ISSUES

1.  Entitlement to service connection for bilateral hand
disability.

2.  Entitlement to service connection for bilateral foot
disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Van Stewart, Counsel

INTRODUCTION

The veteran had active naval service from January 1952 to
November 1955.  The evidence shows that the Veteran was
wounded in action.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a May 2005 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.

These issues were remanded by the Board for additional
development in an action dated in March 2009.  There having
been substantial compliance with the Board's remand orders,
the case is once again before the Board for appellate review.

FINDINGS OF FACT

1.  The Veteran served aboard a combat vessel in Korean
waters in the winter of 1952-53, where his battle station was
in an exposed gun mount.

2.  The Veteran has bilateral neuropathy of the hands and
feet.

3.  The Veteran's bilateral neuropathy of the feet is
etiologically related to exposure to extreme cold experienced
during his period of active duty.

4.  The Veteran's bilateral neuropathy of the hands is not
related to exposure to extreme cold experienced during his
period of active duty.

CONCLUSIONS OF LAW

1.  The veteran has a bilateral foot disability that is the
result of disease or injury incurred in or aggravated during
active military service.  38 U.S.C.A. �� 1101, 1110, 1154,
5107 (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.304 (2009).

2.  The veteran does not have a bilateral hand disability
that is the result of disease or injury incurred in or
aggravated during active military service.  38 U.S.C.A.
�� 1101, 1110, 1154, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2009).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide.  VCAA notice should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  But see
Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005) (Mayfield
I), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006) (when VCAA notice follows the initial
unfavorable AOJ decision, subsequent RO actions may
"essentially cure[] the error in the timing of notice").

The Board notes that the Veteran was apprised of VA's duties
to both notify and assist in correspondence dated in April
2004, January 2005, and June 2009.  Although the complete
notice required by the VCAA was not provided until after the
RO adjudicated the appellant's claims, any timing errors have
been cured by the RO's subsequent actions.  Id.

Specifically regarding VA's duty to notify, the notifications
to the Veteran apprised him of what the evidence must show to
establish entitlement to the benefits sought, what evidence
and/or information was already in the RO's possession, what
additional evidence and/or information was needed from the
Veteran, what evidence VA was responsible for getting, and
what information VA would assist in obtaining on the
Veteran's behalf.  The Veteran was apprised of the criteria
for assigning disability ratings and for award of an
effective date.  See Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).  The RO also provided a statement of the
case (SOC) and a supplemental statement of the case (SSOC)
reporting the results of its reviews of the issues on appeal
and the text of the relevant portions of the VA regulations.

Regarding VA's duty to assist, the AOJ obtained the Veteran's
service treatment record (STR) file and post-service medical
records, and secured examinations in furtherance of his
claims.  VA has no duty to inform or assist that was unmet.

The Veteran complains of pain in his hands and feet,
including long-standing burning sensation in his feet, that
he contends result from exposure to extreme cold while
serving in a gun turret aboard a Navy cruiser in the winter
of 1952-1953 in the waters close to shore during the Korean
conflict.  The Veteran's STRs contain no record of cold
injury or related treatment during his service, and there is
no medical evidence of complaint or treatment during any
post-service presumptive period.

Of record is a buddy statement dated in May 2004 wherein a
shipmate noted that he and the Veteran served together in a
three-inch anti-aircraft gun mount that was an open mount
(i.e., open and therefore exposed to the elements), and that
most of the fighting they participated in was in Won San
Harbor, where the temperatures reached to below zero degrees
(presumably Fahrenheit), and that they often spent several
hours at a time at their station in the gun mount.

Of record are VA treatment records, including those of the
Veteran's treating podiatrist that relate to the Veteran's
diagnosed diabetes.  In several of these documents the doctor
attributed the Veteran's neuropathy symptoms to his diabetes
and to pernicious anemia.

Also of record is an examination report from one of the
Veteran's private care providers, Corin Wilde, D.P.M.  Dr.
Wilde diagnosed, inter alia, diabetes mellitus with
neuropathy.  Noting the Veteran's claimed cold exposure in
Korea, the doctor noted that the Veteran's pain in his feet,
which has been present for years (according to the Veteran),
was likely due to extreme cold exposure.  The doctor noted,
however, that it is impossible to separate how much of the
Veteran's current condition is due to diabetic neuropathy and
how much is due to his earlier cold exposure.

The principal reason for the Board's earlier remand was to
afford the Veteran with a VA cold injury protocol
examination.  That examination was conducted in November
2009.  After reviewing the Veteran's case file and discussing
the Veteran's reported symptoms and history of cold exposure,
the examiner reported that the Veteran suffers decreased pain
sensation in the bilateral hands and bilateral feet, as well
as skin on both feet that was both cooler than normal to the
touch and very dry.  The examiner diagnosed neuropathy in the
hands and feet that adversely affects many of the Veteran's
daily activities.

The examiner had been asked to provide an opinion as to
whether it is at least as likely as not that the Veteran has
any hand or foot disabilities that are related to his averred
exposure to cold weather while serving aboard ship in Korean
waters during the winter months.  In response to this
question, the examiner responded that she could not resolve
the issue without resorting to mere speculation.  She went on
to say, however, that the Veteran's complaints of burning
sensation of feet for years may very well be from cold
exposure, but that she could not differentiate what is from
diabetes "or what is from so long ago," impliedly meaning
the Veteran's averred exposure to extreme cold in Korea.

Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during active
military service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38
C.F.R. � 3.303.  Service connection may also be granted for
any injury or disease diagnosed after service, 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).  Generally, service connection requires
(1) medical evidence of a current disability, (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury.  See Caluza
v. Brown, 7 Vet. App. 498 (1995).

It is not enough that an injury or disease occurred in
service; there must be chronic disability resulting from that
injury or disease.  If there is no showing of a resulting
chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity.  38 C.F.R. � 3.303(b).

Certain chronic diseases, including some organic diseases of
the nervous system, may be presumptively service connected if
they become manifest to a degree of 10 percent or more within
one year of leaving qualifying military service.  38 C.F.R.
�� 3.307(a)(3); 3.309(a).  Neither of the Veteran's claimed
disabilities meets this criterion; service connection on a
presumptive basis therefore is not warranted.

Here, there is competent medical evidence of record showing
that the Veteran has neuropathy of the bilateral hands and
bilateral feet.  While there is no medical evidence of record
of any related injury or disease while in service, there is
competent circumstantial and lay evidence that the Veteran
was exposed to cold weather extremes while serving aboard
ship in the waters off Korea during the conflict there.
Accordingly, giving the Veteran the benefit of the doubt, the
Board finds that there is competent evidence of an event,
exposure to cold weather extremes while on active duty, that
could be related to the Veteran's claimed disabilities.  See
38 U.S.C.A. � 1154, 38 C.F.R. � 3.102.

As regards the final element necessary to establish
entitlement to service connection, the Board finds, again
affording the Veteran with every benefit of the doubt, that
the medical evidence regarding a nexus between the Veteran's
bilateral feet disability and his exposure to cold extremes
in Korea is in relative equipoise.  This is so because, while
the Veteran's VA podiatrist has attributed his neuropathy in
the feet to his diabetes and to pernicious anemia, the
Veteran's private podiatrist, Dr. Wilde, and the Veteran's
November 2009 VA examiner both stated that they could not
differentiate what symptoms are related to cold exposure, and
what symptoms are related to his diabetes.  Moreover, Dr.
Wilde went further, stating that the Veteran's pain in his
feet was likely due to extreme cold exposure.  Accordingly,
the Board finds that service connection is warranted for the
Veteran's claimed bilateral foot disability.

Turning to the Veteran's claim of service connection for his
bilateral hand disability, the Board finds that service
connection is not warranted.  Service connection is not
warranted because, while there is competent medical evidence,
as discussed above, of a current bilateral hand disability,
and competent evidence of  exposure to cold weather in
service, there is no competent and credible medical evidence
of a nexus between the current disability and the in-service
exposure to cold weather extremes.  Unlike the issue related
to the feet, none of the medical providers/examiners even
suggested that there is a link between the two.

The Board acknowledges the Veteran's contention that he has a
bilateral hand disability that is related to his in-service
cold weather exposure.  However, there is no evidence of
record showing that the Veteran has the specialized medical
education, training, and experience necessary to render
competent medical opinion as to the etiology of this
disability.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992);
38 C.F.R. � 3.159(a)(1) (2009).  Consequently, the Veteran's
own assertions as to the etiology of his bilateral hand
disability have no probative value.

The Board has considered the benefit-of-the-doubt doctrine,
and, indeed has utilized it to award service connection for
the Veteran's bilateral foot disability.  The Board finds,
however, that the record does not provide even an approximate
balance of negative and positive evidence on the merits in
the instance of the Veteran's bilateral hand claim.  38
U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski,
1 Vet. App. 49 (1990).  Therefore, on the basis of the above
analysis, and after consideration of all the evidence, the
Board finds that the preponderance of the evidence is against
this service connection claim.  The Veteran's current
bilateral hand disability is not traceable to disease or
injury incurred in or aggravated during active military
service.

ORDER

Entitlement to service connection for bilateral foot
disability is granted, subject to the law and regulations
governing the payment of monetary benefits.

Entitlement to service connection for bilateral hand
disability is denied.

________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: ALAN S PEEVY

condition: eye

text:
Citation Nr: 1024000
Decision Date: 06/28/10    Archive Date: 07/08/10

DOCKET NO.  08-26 734	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina

THE ISSUES

1.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
sarcoidosis.

2.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for eye
disability, described as chemical conjunctivitis and sarcoid
uveitis.

3.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for soft
cell sarcoma.

4.  Entitlement to service connection for sarcoidosis.

5.  Entitlement to service connection for eye disability,
described as chemical conjunctivitis and sarcoid uveitis.

6.  Entitlement to service connection for soft cell sarcoma.

7.  Entitlement to service connection for diabetes mellitus,
type II.

8.  Entitlement to service connection for asthma.

9.  Entitlement to service connection for hepatitis B with
liver disability.

REPRESENTATION

Appellant represented by:	South Carolina Office of
Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. N. Moats, Counsel

INTRODUCTION

The Veteran had active duty service from April 1974 to March
1976.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2007 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA).  A notice of disagreement was received in December
2007, a statement of the case was issued in August 2008, and
a substantive appeal was received in September 2008.  A Board
hearing at the RO was held in December 2009.

Additional evidence was received at the Board hearing along
with a waiver of RO consideration.  The record was also held
open for 30 days so that additional evidence could be filed,
but nothing further was submitted.

The Board notes that the United States Court of Appeals for
the Federal Circuit, in Boggs v. Peake, 2007-7137 (Fed. Cir.
Mar. 26, 2008), recently found that a claim for one diagnosed
disease or injury cannot be prejudiced by a prior claim for a
different diagnosed disease or injury, when it is an
independent claim based on distinct factual bases.
Essentially, claims based upon distinctly diagnosed diseases
or injuries must be considered separate and distinct claims.
However, with respect to the Veteran's claimed eye
disabilities of chemical conjunctivitis and sarcoid uveitis,
the Veteran has neither claimed nor submitted evidence of any
new diagnoses for new claims.  Further, the Veteran has
consistently claimed that both of these eye disabilities
occurred from the same incident of alleged exposure to
missile fuel.  As such, the current claims will be considered
as one issue on the basis of new and material evidence and
not as separate and distinct claims.

The service connection issues are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  A June 1991 Board decision denied entitlement to service
connection for sarcoidosis, eye disability, described as
chemical conjunctivitis and sarcoid uveitis, and soft cell
sarcoma, which was affirmed in an August 1992 Memorandum
Decision issued by the United States Court of Veterans
Appeals (Court).

2.  Evidence that raises a reasonable possibility of
substantiating the claim of entitlement to service connection
for sarcoidosis, eye disability, described as chemical
conjunctivitis and sarcoid uveitis, and soft cell sarcoma,
has been received since the June 1991 Board decision.

CONCLUSIONS OF LAW

1.  The affirmed June 1991 Board rating decision, which
denied entitlement to service connection for sarcoidosis, eye
disability, described as chemical conjunctivitis and sarcoid
uveitis, and soft cell sarcoma, is final.  38 U.S.C.A. � 7104
(West 2002).

2.  New and material evidence has not been received since the
June 1991 Board decision denying service connection for
sarcoidosis, eye disability, described as chemical
conjunctivitis and sarcoid uveitis, and soft cell sarcoma,
and, thus, the issues are reopened.  38 U.S.C.A. � 5108 (West
2002); 38 C.F.R. � 3.156(a) (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The present appeal involves the issues of whether new and
material evidence has been received to reopen claims for
entitlement to service connection for sarcoidosis, eye
disability, described as chemical conjunctivitis and sarcoid
uveitis, and soft cell sarcoma.  Given that basically the
same evidence is applicable to these issues, the Board will
address these issues in the same analysis.  By way of
background, service connection for sarcoidosis, chemical
conjunctivitis and soft cell sarcoma was denied in an April
1990 rating decision.  The Veteran appealed these issues to
the Board and in a June 1991 decision, the Board denied these
issues.  Subsequently, the Court affirmed this decision in an
August 1992 Memorandum Decision.  Under the circumstances,
the Board finds that the June 1991 decision became final.  38
U.S.C.A. � 7104.

Applicable law provides that a claim which is the subject of
a prior final decision may nevertheless be reopened if new
and material evidence is presented or secured.  38 U.S.C.A. �
5108.  New and material evidence is defined by regulation.
See 38 C.F.R. � 3.156.  New evidence means evidence not
previously submitted.  Material evidence means existing
evidence that by itself or when considered with previous
evidence relates to an unestablished fact necessary to
substantiate the claims.  New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of last final decision, and must raise a reasonable
possibility of substantiating the claim.  38 C.F.R.
� 3.156(a).

For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed.  Justus v.
Principi, 3 Vet.App. 510, 513 (1992).  The Board must
consider the question of whether new and material evidence
has been received because it goes to the Board's jurisdiction
to reach the underlying claim and adjudicate the claim de
novo.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir.
2001).

The pertinent evidence of record prior to the June 1991 Board
decision consisted of service treatment records and VA
treatment records.  Since the June 1991 Board decision,
additional evidence has become part of the record, including
Social Security Administration (SSA) records, additional VA
treatment records, and December 2008 Board hearing testimony.
SSA records and VA treatment records showed continuing
treatment for the disabilities on appeal

Significantly, the Veteran testified at the Board hearing
that his disabilities are related to service.  Recent case
law has held that lay assertions may serve to support a claim
for service connection by supporting the occurrence of lay-
observable events or the presence of disability or symptoms
of disability subject to lay observation.  38 U.S.C.A.
� 1153(a); 38 C.F.R. � 3.303(a); Jandreau v. Nicholson, 492
F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451
F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as
potentially competent to support presence of disability even
where not corroborated by contemporaneous medical evidence).
Citing Buchanan and Jandreau, the Federal Circuit recently
reiterated that it had previously and explicitly rejected the
view that competent medical evidence is required when the
determinative issue in a claim for benefits involves either
medical etiology or a medical diagnosis.  Davidson v.
Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  When applying the
case law discussed above, here, the Veteran is competent to
say that he experienced symptoms while in service.  He is
also competent to report a continuity of symptoms since
service.

Accordingly, the Board finds that the additional evidence,
specifically the Board hearing testimony, submitted since the
June 1991 Board decision is new and material.  The evidence
is not redundant of evidence already in the record at the
time of the last final decision.  Further, the evidence is
material because it relates to the unestablished fact of
whether the Veteran has a current disability related to
service, which is necessary to substantiate the Veteran's
claim.  See 38 C.F.R. � 3.156(a).  Accordingly, the issues of
entitlement to service connection for sarcoidosis, eye
disability, described as chemical conjunctivitis and sarcoid
uveitis, and soft cell sarcoma are reopened.  38 U.S.C.A. �
5108.

The matter of compliance with the Veterans Claims Assistance
Act of 2000 (VCAA) and implementing regulations will be
addressed by the Board in a future decision (if necessary) on
the merits of the Veteran's claim.  See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000), now codified at 38 U.S.C.A. �� 5102, 5103, 5103A,
5107; 38 C.F.R �� 3.102, 3.156(a), 3.159 and 3.326(a).

ORDER

New and material evidence has been received to reopen the
issues of entitlement to service connection for sarcoidosis,
eye disability, described as chemical conjunctivitis and
sarcoid uveitis, and soft cell sarcoma.  To that extent, the
appeal is granted, subject to the directions set forth in the
following Remand section of this decision.

REMAND

The present appeal includes the issues of entitlement to
service connection for sarcoidosis, eye disability and soft
cell sarcoma.  Service treatment records document numerous
incidents of skin rash and upper respiratory infections.  An
October 1975 record also showed that the Veteran suffered a
cornea abrasion.  The Veteran has also indicated that his
soft cell sarcoma is related to his sarcoidosis.  Given these
incidents in service, documentation of these disabilities in
current treatment records, and the complexity of the medical
issues, the Veteran should be afforded a VA examination to
determine the etiology of these disabilities.  See generally
38 C.F.R. � 3.159(c)(4); McLendon v. Nicholson, 20 Vet.App.
79 (2006).

Moreover, the present appeal also includes the issues of
entitlement to service connection for diabetes mellitus, type
II, and asthma.  The Veteran has also indicated that these
disabilities are related to his sarcoidosis.  Accordingly,
these issues should also be returned to the RO and addressed
in the VA examination.

Further, the Veteran is also seeking entitlement to service
connection for hepatitis B with liver disability.
Significantly, VA treatment records showed that the Veteran
was diagnosed with hepatitis B in May 1977 when giving blood.
Given the nature of this disease in that it can lie dormant
for many years, and that the Veteran was diagnosed the
following year after his discharge from service, the Board
finds that the Veteran should also be afforded a VA
examination to determine whether his hepatitis B with liver
disability manifested in service.

In his Board hearing testimony, the Veteran indicated that he
had an appointment for his eye disability at the VA in a
couple of weeks.  The most recent VA treatment records
associated with the claims file are from February 2009.  As
VA medical records are constructively of record and must be
obtained, the RO should obtain VA treatment records from
February 2009 to the present.  See 38 C.F.R. � 3.159; Bell v.
Derwinski, 2 Vet. App. 611 (1992).

The Board recognizes that as of this date, service connection
has not been established for any disability.  However, the
Veteran's contentions include a  secondary theory of
entitlement; that is, that certain disabilities are due to
the sarcoidosis.  In view of the need to return the case to
the RO for reasons set forth above, it therefore seems
reasonable to include a direction to ensure that the Veteran
is furnished VCAA notice with respect to the secondary
service connection claims to avoid a future remand if service
connection is granted for sarcoidosis or any other such
disability which the Veteran may be claiming has caused or
aggravated other disabilities.

Accordingly, the case is REMANDED for the following actions:

1.  The RO should review the claims file
and ensure that all notification and
development action required by 38 U.S.C.A.
�� 5102, 5103, and 5103A are fully
complied with and satisfied, to
specifically include taking appropriate
steps to develop the issues of service
connection under a secondary theory of
entitlement.  See also 38 C.F.R. � 3.159.

2.  Appropriate action should be taken to
obtain copies of all VA treatment records
from February 2009 to the present.

3.  The Veteran should be scheduled for
appropriate VA examination to determine
the etiology of sarcoidosis, eye
disability, soft cell sarcoma, diabetes
mellitus type II, asthma, and hepatitis B
with liver disability.  The claims file
must be made available to the examiners
for review.

After reviewing the claims file and
examining the Veteran, each examiner (as
appropriate to the disorder for which the
examination is conducted) should clearly
medical diagnoses for the particular
disorder being claimed.  As to such
disability, the appropriate examiner(s)
should offer an opinion as to whether it
is at least as likely as not (a 50% or
higher degree of probability) that the
disability in question was manifested
during service or is otherwise related to
service.

A detailed rationale should be provided
for all opinions expressed.

3.  In the interest of avoiding future
remand, the RO should then review the
examination report(s) to ensure that the
above questions have been clearly
answered and a rationale furnished for
all opinions.  If not, appropriate action
should be taken to remedy any such
deficiencies in the examination
report(s).

4.  Thereafter, the issues on appeal
should be readjudicated under a merits
analysis.

If the RO determines that service
connection is warranted for sarcoidosis
or any disability which the Veteran is
claiming caused or aggravated other
disabilities, then the RO should direct
appropriate development, such as VA
examination and opinion, to allow for
proper review of the secondary service
connection claims.

After completion of all of the above, the
RO should issue a supplemental statement
of the case and afford the Veteran an
opportunity to respond.  Thereafter, the
case should be returned to the Board for
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 Supp. 2009).

______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: C TRUEBA

benefit: healthcare

text:
Citation Nr: 1026000
Decision Date: 07/13/10    Archive Date: 07/19/10

DOCKET NO.  09-50 693	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Seattle,
Washington

THE ISSUE

Entitlement to payment or reimbursement for the cost of
unauthorized medical services rendered on April 1, 2009.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant & M.P., friend of appellant

ATTORNEY FOR THE BOARD

K. McDonald, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from
October 1959 to September 1962 and from December 1962 to December
1965.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from
administrative decisions issued by the Department of Veterans
Affairs (VA) Medical Center (VAMC) in Seattle, Washington which
denied entitlement to the benefit currently sought on appeal.

The Veteran appeared before the undersigned Veterans Law Judge in
a Travel Board hearing in Seattle, Washington in March 2010 to
present testimony on the issue on appeal.  The hearing transcript
has been associated with the claims file.  The Board notes that
at the time of the hearing in March 2010, there was no indication
in the VHA medical reimbursement file noting that the Veteran was
represented by an accredited service organization.  Therefore, no
representative was notified and the Veteran appeared
unrepresented before the undersigned at his hearing.  At a later
date, the separate claims file was requested which indicated
representation by the Disabled American Veterans (DAV).  This
organization has since had an opportunity to review the issue
presently on appeal and submit written arguments on the Veteran's
behalf.  Nonetheless, even in the event of any procedural error
in failure to offer the Veteran an additional hearing with
representation, the Board finds such error to be harmless in
light of the Board's decision to grant entitlement to the benefit
sought.

FINDINGS OF FACT

1.  The provision of private medical services rendered on April
1, 2009 was not authorized in advance by VA.

2.  An attempt to use a VA or other Federal facility in this
matter would not have been considered reasonable by a prudent
layperson at the time of the event in question.

3.  Medical services rendered on April 1, 2009 consisted of
initial evaluation and treatment of a condition of such a nature
that a prudent layperson would reasonably expect that delay in
seeking immediate medical attention would be hazardous to life or
health.

CONCLUSION OF LAW

The criteria for entitlement to payment or reimbursement for
unauthorized medical expenses incurred on April 1, 2009 have been
met.  38 U.S.C.A. �� 503, 1703, 1725, 1728, 1750, 7104 (West 2002
& Supp. 2009); 38 C.F.R. �� 17.120, 17.121, 17.1000-1008 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.  38 U.S.C.A.
�� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. �� 3.102, 3.156, 3.159, 3.326 (2009).  As will be
discussed in full below, the Board finds that payment or
reimbursement of the medical expenses in question is warranted.
Therefore, a full discussion of whether VA met these duties is
not needed in this case as no prejudice can flow to the Veteran
from any notice or assistance error based upon the full grant of
the benefit sought.

Payment or Reimbursement for Medical Treatment in a Non-VA
Facility

Medical expenses incurred by veterans at private facilities, and
not previously authorized by VA, are to be paid or reimbursed by
VA in certain situations in which particular statutorily-mandated
requirements are met.  38 U.S.C.A. �� 1725, 1728 (West 2002 &
Supp. 2009).

Under 38 U.S.C.A. � 1728, the law provides payment or
reimbursement for treatment for a service-connected disability; a
disability either associated with, or aggravating, a service-
connected disability; a total disability permanent in nature,
resulting from a service-connected disability; or for illness or
injury resulting from participation in a VA vocational
rehabilitation program.  In the present case, service connection
is in effect for residuals of kidney removal.  The assessment and
treatment in question involved breathing trouble, headache, arm
and back pain.  The record does not indicate that this treatment
related to the Veteran's service-connected disability in any way,
nor does the Veteran so contend.  Therefore, 38 U.S.C.A. � 1728
is inapplicable in the instant case.

However, 38 U.S.C.A. � 1725 is applicable here.  This provision
was enacted as part of the Veterans Millennium Health Care and
Benefits Act which provided general authority for reimbursement
of the reasonable value of emergency treatment furnished in a
non-VA facility to those veterans who are active VA healthcare
participants and who are personally liable for such non-VA
treatment and not eligible for reimbursement under the provisions
of 38 U.S.C.A. � 1728.  See Pub. L. 106-117, Title I, Subtitle B,
� 111, 113 Stat. 1556 (effective May 29, 2000); see also 38
U.S.C.A. � 1725; 38 C.F.R. � 17.1000-1008 (2008).  To be entitled
to payment for emergency care under these provisions, all of the
following conditions must be satisfied:

(a) The emergency services were provided in a hospital emergency
department or a similar facility held out as providing emergency
care to the public;

(b) The claim for payment or reimbursement for the initial
evaluation and treatment is for a condition of such a nature that
a prudent layperson would have reasonably expected that delay in
seeking immediate medical attention would have been hazardous to
life or health;

(c) A VA or other Federal facility/provider was not feasibly
available and an attempt to use them before hand would not have
been considered reasonable by a prudent layperson;

(d) The claim for payment or reimbursement for any medical care
beyond the initial emergency evaluation and treatment is for a
continued medical emergency of such a nature that the Veteran
could not have been safely discharged or transferred to a VA or
other Federal facility (the medical emergency lasts only until
the time the Veteran becomes stabilized);

(e) At the time the emergency treatment was furnished, the
Veteran was enrolled in the VA health care system and had
received medical services under authority of 38 U.S.C. Chapter 17
within the 24-month period preceding the furnishing of such
emergency treatment;

(f) The Veteran is financially liable to the provider of
emergency treatment for that treatment;

(g) The Veteran has no coverage under a health-plan contract for
payment or reimbursement, in whole or in part, for the emergency
treatment;

(h) If the condition for which the emergency treatment was
furnished was caused by an accident or work-related injury, the
claimant has exhausted without success all claims and remedies
reasonably available to the Veteran or provider against a third
party for payment of such treatment; and

(i) The Veteran is not eligible for reimbursement under 38
U.S.C.A. � 1728 for the emergency treatment provided.
38 C.F.R. � 17.1002.

It is also important to note that the Veterans' Mental Health and
Other Care Improvements Act of 2008 amended portions of � 1725 to
make mandatory (as opposed to discretionary) the reimbursement of
the reasonable value of emergency treatment furnished by a non-VA
facility if all of the pertinent criteria outlined above are
otherwise satisfied.  See Pub. L. No. 110-387, � 402, 122 Stat.
4110 (2008).

In this case, it is uncontested that the Veteran, and the care
that he received, met the criteria outlined at 38 C.F.R. �
17.1002(a), and � 17.1002(d-i).  The only remaining relevant
issues are whether the evaluation and treatment in question is of
such type as to be reasonably considered to be an emergency
medical condition and whether an attempt to use VA or other
Federal facilities prior to the use of a private facility was
necessary.  38 C.F.R. � 17.1002(b, c).

To this end, both VA and private treatment notes dated April 1,
2009 confirm that a private neurologist had requested an urgent
or "stat" MRI.  In a phone call with the Veteran to determine
why this test had not been completed, a staff member from the
private neurologist's office determined that the Veteran sounded
"odd."  She asked if the Veteran was okay, and he responded
that he did not know.  The Veteran reported having trouble
breathing, arm pain, headache and back pain.  The private medical
office staff person then called 911 on the Veteran's behalf.
Private treatment record, April 2009; VA treatment record, April
2009.  Records indicate that the Veteran was then transported by
ambulance to the local hospital's emergency department as it was
closer than any VA facility.  The Veteran was treated and
subsequently released to home the same day.

Based upon the foregoing, in applying a prudent layperson
standard, the Board finds that the Veteran was brought to a
hospital in an ambulance and the ambulance personnel determined
that the nearest appropriate care available was a private
emergency department rather than a VA or other Federal facility.
Thus, an attempt to use VA or other Federal facilities beforehand
would not have been reasonable under the circumstances.  38
C.F.R. � 17.1002(c).

Similarly, a prudent layperson may reasonably have expected that
delay in seeking immediate medical attention would have been
hazardous to the Veteran's life or health at the time of the
services in question.  Indeed, a medical office staff person,
likely with some degree of medical training or knowledge of
health and medicine even greater than the average prudent
layperson, determined that in the given circumstances, the acute
symptoms described by the Veteran were sufficient to warrant
summoning ambulance service via a 911 emergency call she made on
his behalf.  The Board finds this to be a sufficient factual
basis to show that the event in question constituted a reasonable
medical emergency.  38 C.F.R. � 17.1002(b).

As such, assessment and treatment provided for this Veteran on
April 1, 2009 at a private hospital is within the VA definition
of emergency treatment, and payment or reimbursement of the
medical expenses in question is warranted.

ORDER

Payment or reimbursement for the cost of unauthorized medical
services rendered on April 1, 2009 is granted, subject to the
laws and regulations governing the payment of monetary benefits.

____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs