judge_norm: MICHAEL D LYON

disposition: denied

condition: ptsd

text:
Citation Nr: 0408000
Decision Date: 03/26/04    Archive Date: 04/01/04

DOCKET NO.  95-17 198	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina

THE ISSUE

Entitlement to service connection for post-traumatic stress
disorder (PTSD).

ATTORNEY FOR THE BOARD

Darryl M. Springer, Law Clerk

INTRODUCTION

The veteran served on active duty from October 1970 to
January 1977.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision from the Department
of Veterans Affairs (VA) Winston-Salem, North Carolina
Regional Office (RO).

The above issue was remanded by the Board in October 1997,
developed in April 2002, and remanded in July 2003.  The case
was thereafter returned to the Board.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the appeal on the issue of entitlement to
service connection for PTSD has been obtained by the RO.

2.  The evidence does not show that the current PTSD is
related to the veteran's service.  The claimed in service
stressors have not been confirmed, and he has not provided,
despite requests, more specific information to possibly
verify these stressors.

CONCLUSION OF LAW

PTSD was not incurred in or aggravated by service.  38
U.S.C.A. �� 1110, 1111, 5103A (West 2002); 38 C.F.R. ��
3.102, 3.159, 3.303, 3.304, 3.326 (2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

At the outset, the Board is aware of the recent Court
decision in the case Pelegrini v. Principi, 17 Vet. App. 412
(2004).  In this case it was essentially held that the notice
and assistance provisions of the Veterans Claims Assistance
Act of 2000 (VCAA) should be provided to a claimant prior to
any adjudication of the claim.  In this case, the claim had
been filed, and initial adjudication had taken place before
the VCAA was enacted.  Thus, preadjudication notice was not
provided nor was it possible.  The Court decision did not
contain a remedy under such facts, and there appears to be no
efficient remedy evident given these facts.

As will be discussed below, the VCAA provisions have been
considered and complied with.  There is no indication that
there is additional evidence to obtain, there is no
additional notice that should be provided, and there has been
a complete review of all the evidence without prejudice to
the appellant.  As such, there is no indication that there is
any prejudice to the appellant by the order of the events in
this case.  See Bernard v. Brown, 4 Vet. App. 384 (1993).
Any error in the sequence of events is not shown to have any
effect on the case or to cause injury to the claimant.  As
such, the Board concludes that any such error is harmless and
does not prohibit consideration of this matter on the merits.
See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998); Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th
Cir. 1985).

In the present case, regarding the issue of entitlement to
service connection for PTSD, a substantially complete
application was received in November 1992.  Thereafter, in a
rating decision dated in November 1992 that issue was denied.
Only after that rating action was promulgated did the AOJ, in
August 2001, provide notice to the claimant regarding what
information and evidence is needed to substantiate the claim,
as well as what information and evidence must be submitted by
the claimant, what information and evidence will be obtained
by VA, and the need for the claimant to submit any evidence
in his or her possession that pertains to the claim.  The
provisions of the VCAA were subsequently provided to the
veteran in the July 2003 supplemental statement of the case
(SSOC).

As noted, because the VCAA notice in this case was not
provided to the appellant prior to the initial AOJ
adjudication denying the claim, the timing of the notice does
not comply with the express requirements of the law as found
by the Court in Pelegrini.  While the Court did not address
whether, and, if so, how, the Secretary can properly cure a
defect in the timing of the notice, it did leave open the
possibility that a notice error of this kind may be non-
prejudicial to a claimant.

The Court in Pelegrini found, on the one hand, that the
failure to provide the notice until after a claimant has
already received an initial unfavorable AOJ determination,
i.e., a denial of the claim, would largely nullify the
purpose of the notice and, as such, prejudice the claimant by
forcing him or her to overcome an adverse decision, as well
as substantially impair the orderly sequence of claims
development and adjudication.  Pelegrini, 17 Vet. App. 412 at
13.  On the other hand, the Court acknowledged that the
Secretary could show that the lack of a pre-AOJ decision
notice was not prejudicial to the appellant.  Id. ("The
Secretary has failed to demonstrate that, in this case, lack
of such a pre-AOJ-decision notice was not prejudicial to the
appellant.")

In light of these two findings on prejudice, the Board finds
that the Court in Pelegrini has left open the possibility of
a notice error being found to be non-prejudicial to a
claimant.  To find otherwise would require the Board to
remand every case for the purpose of having the AOJ provide a
pre-initial adjudication notice.  The only way the AOJ could
provide such a notice, however, would be to vacate all prior
adjudications, as well as to nullify the notice of
disagreement and substantive appeal that were filed by the
appellant to perfect the appeal to the Board.  This would be
an absurd result, and as such it is not a reasonable
construction of section 5103(a).  There is no basis for
concluding that harmful error occurs simply because a
claimant receives VCAA notice after an initial adverse
adjudication.

Moreover, while strictly following the express holding in
Pelegrini would require the entire rating process to be
reinitiated when notice was not provided prior to the first
agency adjudication, this could not have been the intention
of the Court, otherwise it would not have taken "due account
of the rule of prejudicial error" in reviewing the Board's
decision.  See 38 U.S.C.A. � 7261(b)(2); see also Conway v.
Principi, No. 03-7072 (Fed. Cir. Jan. 7, 2004) (There is no
implicit exemption for the notice requirements contained in
38 U.S.C.A. � 5103(a) from the general statutory command set
forth in section 7261(b)(2) that the Veterans Claims Court
shall "take due account of the rule of prejudicial error.")

In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C.A. � 7104(a), all questions in a
matter which under 38 U.S.C.A. � 511(a) are subject to
decision by the Secretary shall be subject to one review on
appeal to the Secretary, and such final decisions are made by
the Board.  Because the Board makes the final decision on
behalf of the Secretary with respect to claims for veterans
benefits, it is entirely appropriate for the Board to
consider whether the failure to provide a pre-AOJ initial
adjudication constitutes harmless error, especially since an
AOJ determination that is "affirmed" by the Board is
subsumed by the appellate decision and becomes the single and
sole decision of the Secretary in the matter under
consideration.  See 38 C.F.R. � 20.1104.  There simply is no
"adverse determination," as discussed by the Court in
Pelegrini, for the appellant to overcome.  See Pelegrini, 17
Vet. App. 412 at 13.  Similarly, a claimant is not compelled
under 38 U.S.C.A. � 5108 to proffer new and material evidence
simply because an AOJ decision is appealed to the Board.
Rather, it is only after a decision of either the AOJ or the
Board becomes final that a claimant has to surmount the
reopening hurdle.

All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. � 20.1102 (harmless error).

Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided to the appellant in August 2001 was
not given prior to the first AOJ adjudication of the claim,
the notice was provided by the AOJ prior to the transfer and
certification of the appellant's case to the Board, and the
content of the notice fully complied with the requirements of
38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b).  Furthermore,
the July 2003, SSOC informed the claimant of the VCAA
provisions and the claimant has not submitted additional
evidence and argument in support of his claim, or responded
to VA notices.

Therefore, not withstanding Pelegrini, to decide the appeal
would not be prejudicial error to the claimant.

I.  Service Connection

Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if preexisting such service, was
aggravated by service.  38 U.S.C.A. � 1110 (West 2002); 38
C.F.R. � 3.303(a) (2003).

For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic."  When the disease identity is established, there
is no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service (or in the presumptive period)
is not, in fact, shown to be chronic or where the diagnosis
of chronicity may be legitimately questioned.  When the fact
of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim.  38 C.F.R. � 3.303(b).  Service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.  38
C.F.R. � 3.303(d).

II.  Factual Background

The veteran's service medical records are negative for
complaints, diagnosis or treatment for PTSD in service.  On
induction examination of October 1970 and on hardship
discharge examination of December 1976, the veteran's psyche
was evaluated as being normal.  A medical record dated June
1973 reported that the veteran complained of night sweats.
The veteran had a history of headaches in service.

On neurological and psychiatric examination of February 1978,
the veteran complained of headaches and reported that things
made him nervous.  He reported that he had a short temper and
he lost it easily.  The neurological examination revealed the
cranial nerves intact and physiological.  The psychiatric
examination revealed a vague, evasive, covertly hostile male.
The veteran admitted having difficulty in adjusting since his
discharge for service.  There was no evidence of illusions,
delusions, hallucinations, or ideas of reference and he was
oriented to time, place and person.  The diagnosis was
passive aggressive personality.

VA treatment reports from December 1977 to August 1991 showed
that the veteran complained of depression, anxiety and
headaches.  A medical record dated September 1979 reported
that the veteran showed no indication of psychosis,
delusions, or hallucinations.  There was some indication of
flight of ideas and tangential thinking.  The veteran was
oriented in all spheres and his concentration was good.  The
diagnostic impression was a tentative diagnosis of
personality disorder, explosive personality indicated by the
veteran's verbal and physical aggressiveness with feelings of
regret and remorse afterwards.  A diagnosis of agitated
depression was also offered but needed to be ruled out.  A
September 1981 report showed that the veteran complained of
headaches associated with anxiety.  The impression was
explosive personality and tension headaches.  An August
medical report showed that the veteran showed no delusions or
hallucinations and that he felt useless and worthless.  His
affect was reported as flat and his mood was that of
depression.  An October 1985 medical report showed that the
veteran made suicide threats but had no plans or timetable.

VA treatment reports from August 1982 to May 1993 showed that
the veteran was in group therapy for PTSD.  An April 1993
report from the Salem, Virginia, Medical Center reported that
the veteran's symptoms related to PTSD began during his tour
in Vietnam.  He reported that his symptoms had been
continuous since that time especially symptoms of emotional
numbing.  He reported that his symptoms included intrusive
thoughts of Vietnam, social isolation, mistrust of others and
sleep disturbance.  The diagnosis was PTSD, psychoactive
substance abuse in remission, psychological stressors to
include unemployment and homelessness.  His Global Assessment
Functioning (GAF) score was 55 with the highest being 50 in
the past year.

A VA PTSD hospitalization report from December 1993 to
February 1994 showed that the veteran complained of
depression manifested by survivor guilt, uncontrollable
anger, difficulty sleeping, recurrent and repetitive
nightmares and headaches.  He also reported hyperstartle
reaction to loud noises and had problems with authority
figures.  The diagnoses were chronic PTSD, major depression,
stressors due to past combat experience and his GAF score was
41.

VA treatment reports from April 1993 to August 1993 showed
that the veteran was treated for PTSD.  His PTSD symptoms
were stable with no suicidal or homicidal ideation.

On psychiatric evaluation of May 1994 for Social Security
benefits the veteran's diagnosis was unclear, however the
examiner reported that he would suggest chronic PTSD, bipolar
disorder not otherwise specified, mixed substance abuse and
paranoid delusional disorder.  The veteran's GAF score was 58
with a score of 64 within the past year.  The veteran is in
receipt of Social Security Administration benefits from
December 1991.

On VA treatment reports of August 1993 to June 1995 reported
that the veteran was diagnosed with PTSD.  A treatment report
of February 1995, the veteran was treated for PTSD and
reported that his stressors included: rocket attacks,
"carrying dead bodies that moaned and groaned," being
ambushed in a convoy, experiencing sniper fire, witnessing a
"JP4 fuel tanker truck" blown up, witnessing a woman and
child being killed, and witnessing friends being killed in
combat.

An Environmental Support Group (EGS) report of November 1996
showed an extract of a Daily Staff Journal (DJ), which
documented small arms fire outside the perimeter, reported by
Nung guards, but there were no casualties.  Also, extracts of
Operational Reports -Lessons Learned (OR-LL's) for the
periods ending October 1971 and April 1972, documented enemy
activity to at low levels during the reporting period.  The
ESG was unable to document that the veteran transported the
remains of soldiers or worked on the docks loading ships.  It
was verified that he was a truck master assigned to a
transportation unit during his Vietnam tour.

Attempts to obtain more specific information from the veteran
for further searches have been unsuccessful.

VA treatment reports from June 1998 to March 2003 showed that
the veteran was treated for PTSD.  A June 1998 report showed
that the veteran had no suicidal ideation and no
hallucinations.  He was also on anti-psychotic medication to
help decrease his PTSD symptoms.

III.  Analysis

Review of the record in this case fails to show any
relationship between the veteran's currently diagnosed PTSD
and service.  The veteran's service medical records show his
psyche was clinically evaluated as normal and it was reported
that the veteran had occasional night sweats.  Post service
he was seen for complaints, including headaches attributed to
a personality disorder.

Further there are no findings, complaints, or diagnoses of
PTSD during service, or in the years immediately thereafter.
The veteran complained of depression, anxiety and headaches,
however, VA treatment records from December 1977 to March
2003 show that the veteran showed no indication of psychosis,
delusions, or hallucinations and while there was some
indication of flight of ideas and tangential thinking, he was
oriented in all spheres and his concentration was good.
Again, in the initial years post-service there was indication
only of a personality disorder.

Additionally, a treatment report of February 1995, reported
that the veteran's stressors included: rocket attacks,
"carrying dead bodies that moaned and groaned," being
ambushed in a convoy, experiencing sniper fire, witnessing a
"JP4 fuel tanker truck" blown up, witnessing a woman and
child being killed, and witnessing friends being killed in
combat.  However, an ESG report of November 1996, failed to
corroborate the veteran's stressors.  While there was small
arms fire outside the perimeter, reported by Nung guards,
there were no casualties and for the periods ending October
1971 and April 1972, documented enemy activity were at low
levels.  Additionally, the veteran when contacted in April
2002 to give a comprehensive statement regarding his alleged
stressors and he failed to respond with assistance for the
development.  Thus, there is no confirmation that he was in
combat or was fired upon.  As such, the reported stressors
remain unverified.

While some records show the veteran reported a history of
PTSD, there is no competent medical evidence relating the
veteran's PTSD specifically to his service, and the reported
history cannot be considered competent medical evidence of a
nexus.  While the Board has considered the veteran's
contentions, they do not constitute competent evidence with
respect to medical causation, diagnosis, and treatment.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  Further, as
noted, the history as provided is not consistent with the
findings in service, which shows no treatment for PTSD or
other indications that would support the later made
diagnosis.

Therefore, there is no competent, credible medical evidence
in the record to show a connection between the veteran's
currently diagnosed PTSD and service.  There is no showing in
the competent medical evidence of treatment or diagnoses for
PTSD in service or until many years post service.  As noted
none of the stressors could be confirmed.  While the veteran
has a continuing diagnosis of PTSD there is no evidence that
it is related to service.  As such, the Board finds that the
evidence preponderates against the claim for service
connection for PTSD.

ORDER

Entitlement to service connection for post-traumatic stress
disorder (PTSD) is denied.

____________________________________________
	MICHAEL D. LYON
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA
FORM
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CONTINUED

Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

VA
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series: legacy

judge_norm: KATHY A BANFIELD

text:
Citation Nr: 0409000
Decision Date: 04/07/04    Archive Date: 04/16/04

DOCKET NO.  03-12 550	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey

THE ISSUE

Entitlement to service connection for the cause of the
veteran's death.

REPRESENTATION

Appellant represented by:	New Jersey Department of
Military and Veterans' Affairs

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

N. W. Fabian, Counsel

INTRODUCTION

The veteran served on active duty from May 1965 to May 1967.

This matter comes to the Board of Veterans' Appeals (Board)
from a January 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO), in which the RO
denied the benefit sought on appeal.  The appellant, the
veteran's surviving spouse, perfected an appeal of that
decision.

FINDINGS OF FACT

1.  The RO has notified the appellant of the evidence needed
to substantiate her claim, obtained all relevant evidence
identified by the appellant, and obtained a VA medical
opinion in order to assist her in substantiating her claim
for VA compensation benefits.

2.  The veteran had service in Vietnam between January 1962
and May 1975 and is presumed to have been exposed to Agent
Orange.

3.  The veteran died in August 1981 due to moderately
differentiated producing necrotic adenocarcinoma of the
colon.

4.  The preponderance of the competent and probative evidence
of record indicates that the adenocarcinoma of the colon that
caused the veteran's death was not due to Agent Orange
exposure.

CONCLUSION OF LAW

The cause of the veteran's death was not incurred in or
aggravated by active service.  38 U.S.C.A. �� 1110, 1310,
5107 (West 2002); 38 C.F.R. �� 3.303, 3.307, 3.309, 3.312
(2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant contends that the cancer that resulted in the
veteran's death was caused by his exposure to Agent Orange
while serving in Vietnam.

Development of the Claim

The Board has considered the provisions of the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000) (VCAA) (codified at 38 U.S.C.A. �� 5103, 5103A
(West 2002)).  The VCAA includes an enhanced duty on the part
of VA to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.  The VCAA
also redefines the obligations of VA with respect to its
statutory duty to assist claimants in the development of
their claims.  In August 2001 VA issued regulations to
implement the provisions of the VCAA, which are now codified
at 38 C.F.R. �3.159 (2003).

On receipt of a claim for benefits VA will notify the
appellant of the evidence that is necessary to substantiate
the claim.  VA will also inform the appellant which
information and evidence, if any, that she is to provide and
which information and evidence, if any, VA will attempt to
obtain on her behalf.  VA will also request that the
appellant provide any evidence in her possession that
pertains to the claim.  See Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002); 38 C.F.R. � 3.159(b) (2003).

Prior to the January 2002 initial RO decision to deny the
benefits sought on appeal, the RO informed the appellant of
the evidence needed to substantiate her claim.  See Pelegrini
v. Principi, 17 Vet. App. 412 (2004).  In the July 2001
notice the RO informed her of the provisions of the VCAA and
the specific evidence required to substantiate her claim for
service connection for the cause of the veteran's death.  The
RO also informed her of the information and evidence that she
was required to submit, and the evidence that the RO would
obtain on her behalf.  The RO instructed her to identify any
evidence that was relevant to her claim, and to provide
signed authorizations for each medical care provider so that
VA could obtain that evidence on her behalf.  As an
alternative, the RO informed her that she could obtain the
evidence and submit it to the RO.  The RO informed her that
although VA would make reasonable efforts to obtain the
evidence she identified, it was ultimately her responsibility
to provide the evidence in support of her claim.  The Board
finds, therefore, that VA has fulfilled its obligation to
inform the appellant of the evidence needed to substantiate
her claim.

The VCAA provides that VA will also make reasonable efforts
to help the appellant obtain evidence necessary to
substantiate the claim, unless no reasonable possibility
exists that such assistance would aid in substantiating the
claim.  VA's duty includes making efforts to obtain the
veteran's service medical records, if relevant to the claim;
other relevant records pertaining to service; VA medical
records; and any other relevant records held by any other
source.  The appellant is also required to provide the
information necessary to obtain this evidence.  In a claim
for compensation benefits, VA will obtain a medical opinion
which includes a review of the evidence of record if VA
determines it is necessary to decide the claim.  38 C.F.R.
� 3.159(c) (2003).

The RO has obtained the veteran's service medical records,
and the appellant has presented the veteran's death
certificate and the autopsy report in support of her claim.
In addition, the appellant has submitted a medical opinion
showing that the cancer that caused the veteran's death was
due to Agent Orange exposure.  The RO also obtained a VA
medical opinion that shows no relationship between Agent
Orange exposure and the type of cancer that caused the
veteran's death.

The appellant and her representative have been accorded the
opportunity to present evidence and argument, and have done
so.  The appellant has not indicated the existence of any
other evidence that is relevant to her appeal.  The Board
concludes that all relevant data has been obtained for
determining the merits of the appellant's claim and that no
reasonable possibility exists that any further development
would aid the appellant in substantiating her claim.  See
Paralyzed Veterans of America, et. al., v. Secretary of
Veterans Affairs, 345 F.3d 1334, 1356 (Fed. Cir. 2003) (VA is
not required to provide any assistance if no reasonable
possibility exists that such assistance would aid in
substantiating the claim).

Relevant Laws and Regulations

Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service.  38 U.S.C.A. � 1110 (West 2002).  Service
connection may be granted for any disease diagnosed after
discharge, when all of the evidence establishes that the
disease was incurred in service.  38 C.F.R. � 3.303 (2003).

Dependency and Indemnity Compensation (DIC) benefits are
payable to the surviving spouse of a veteran if the veteran
died from a service-connected disability.  38 U.S.C.A. � 1310
(West 2002).

In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by active service was the principal
or contributory cause of death.  The issue involved will be
determined by the exercise of sound judgment, without
recourse to speculation, after a careful analysis has been
made of all the facts and circumstances surrounding the death
of the veteran.  38 C.F.R. � 3.312(a) (2003).

In order to constitute the principal cause of death the
service-connected disability must be one of the immediate or
underlying causes of death, or be etiologically related to
the cause of death.  In order to be a contributory cause of
death, it must be shown that the service-connected disability
contributed substantially or materially to cause death; that
it combined to cause death; or that it aided or lent
assistance to the production of death.  38 C.F.R. � 3.312(b),
(c) (2003).

A veteran who had active service in the Republic of Vietnam
from January 9, 1962, to May 7, 1975, will be presumed to
have been exposed to an herbicide agent during that service.
When such a veteran develops a disorder listed in 38 C.F.R.
� 3.309(e), which disorders have been shown to be caused by
exposure to Agent Orange, to a degree of 10 percent or more
within the specified period, the disorder shall be presumed
to have been incurred during service.  38 U.S.C.A. � 1116
(West 2002); 38 C.F.R. �� 3.307(a)(6), 3.309(e) (2003).

A presumption of service connection based on exposure to
herbicides used in the Republic of Vietnam during the
Vietnam Era is not warranted for any other condition for
which the Secretary has not specifically determined a
presumption of service connection is warranted.  Diseases
Not Associated With Exposure to Certain Herbicide Agents, 68
Fed. Reg. 27,630 (May 20, 2003).  The United States Court of
Appeals for the Federal Circuit has held, however, that the
Veteran's Dioxin and Radiation Exposure Compensation
Standards Act, Pub. L. No. 98-542, � 5, 98 Stat. 2725 (1984),
does not preclude a veteran from establishing service
connection with proof of actual direct causation.  Combee v.
Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value.  38 U.S.C.A. � 7104(a) (West 2002); Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. � 3.303(a) (2003).
When there is an approximate balance of positive and negative
evidence regarding a material issue, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
38 U.S.C.A. � 5107(b) (West 2002); Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. �� 3.102 (2003).
If the Board determines that the preponderance of the
evidence is against the claim, it has necessarily found that
the evidence is not in approximate balance, and the benefit
of the doubt rule is not applicable.  Ortiz, 274 F.3d at
1365.

Analysis

The veteran's discharge certificate shows that he served on
active duty from May 1965 to May 1967, and that he had one
year of service in Vietnam.  He is, therefore, presumed to
have been exposed to Agent Orange while in service.

The death certificate indicates that he died in August 1981,
and an autopsy was performed, which resulted in the
determination that the primary cause of death was moderately
differentiated producing necrotic adenocarcinoma of the colon
with metastasis to the liver, lungs, peribronchial lymph
nodes, bilateral adrenal glands, pancreas, and jejunum.

The appellant provided testimony before the RO Decision
Review Officer in June 2003, at which time she stated that
when the veteran became ill with the cancer his physicians
did not believe that the colon was the primary site for the
cancer.  The autopsy report clearly shows, however, that the
colon was the primary site for the cancer, and that it had
metastasized to the other organs.

The Board notes that colon cancer is not included in the list
of diseases to which the presumption of service connection
applies for veterans who were exposed to Agent Orange.  See
38 C.F.R. � 3.309(e) (2003).  Although it is not included as
a presumptive disease, the appellant may, nonetheless, be
entitled to service connection for the cause of the veteran's
death if the evidence shows that the colon cancer was, in
fact, caused by the veteran's exposure to Agent Orange.
Combee, 34 F.3d at 1039.

In support of her contention that the veteran's death due to
colon cancer was caused by his exposure to Agent Orange while
serving in Vietnam, the appellant submitted multiple
statements from a private physician in which the physician
provided the opinion that the colon cancer that caused the
veteran's death was due to his exposure to Agent Orange.  He
stated that, as a physician, he had studied the immediate and
delayed effects of Agent Orange exposure, and that it was
well known that Agent Orange caused multiple health problems,
including cancer.  He stated that "it is clear that Agent
Orange/dioxin causes colon cancer" and that, in his opinion,
the veteran's death due to colon cancer was caused by Agent
Orange exposure.  The physician submitted a number of
Internet articles documenting the use of dioxin at various
times and locations, and showing that Agent Orange had been
linked to multiple health problems, but those health problems
did not include adenocarcinoma of the colon.  Although he
stated that it had been well documented in the medical
community that dioxin caused organ damage, including damage
to the colon, he did not refer to any specific study
supporting his assertion that Agent Orange caused colon
cancer.

The RO also obtained a medical opinion from a VA oncologist
regarding the claimed nexus between the veteran's exposure to
Agent Orange and his death due to adenocarcinoma of the
colon.  The VA oncologist stated that he had conducted an
extensive review of the medical literature and the veteran's
medical records and found no evidence that Agent Orange was
related to the development of colorectal cancer.

The appellant has presented a private medical opinion
indicating that the veteran's exposure to Agent Orange while
in service caused the colon cancer that resulted in his
death.  That opinion was apparently based on medical
research, although the physician did not site to any specific
studies supporting his opinion.  The VA physician conducted
what he characterized as an extensive review of the medical
literature, and found no evidence of a relationship between
Agent Orange exposure and the development of colorectal
cancer.  Those opinions are not, however, the only evidence
to be considered in determining whether the veteran's death
due to adenocarcinoma of the colon is related to his exposure
to Agent Orange in service.

In accordance with section 3 of the Agent Orange Act of 1991,
Pub. L. 102-4, 105 Stat. 11, the Secretary has entered into
an agreement with the National Academy of Sciences (NAS) to
review and summarize the scientific evidence concerning the
association between exposure to herbicides used in support of
military operations in the Republic of Vietnam during the
Vietnam Era and each disease suspected to be associated with
such exposure.  Congress mandated that NAS determine, to the
extent possible: (1) whether there is a statistical
association between the suspect diseases and herbicide
exposure, taking into account the strength of the scientific
evidence and the appropriateness of the methods used to
detect the association; (2) the increased risk of disease
among individuals exposed to herbicides during service in the
Republic of Vietnam during the Vietnam Era; and (3) whether
there is a plausible biological mechanism or other evidence
of a causal relationship between herbicide exposure and the
suspect disease.

As required by the statute and agreement, the NAS submits a
report to the Secretary every two years regarding the results
of their review and summarization of the medical literature.
Based on the results of that review, the Secretary then
determines, based on sound medical and scientific evidence,
whether a positive association exists between exposure to
Agent Orange and a disease.  A positive association will be
found to exist if the credible evidence for the association
is equal to or outweighs the credible evidence against the
association.  The Secretary then publishes regulations
establishing presumptive service connection for that
disease.  If the Secretary determines that a presumption of
service connection is not warranted, he publishes a notice
of that determination, including an explanation of the
scientific basis for that determination.  The Secretary's
determination must be based on consideration of the NAS
reports and all other sound medical and scientific
information and analysis available to the Secretary.  See
Diseases Not Associated With Exposure to Certain Herbicide
Agents, 68 Fed. Reg. 27,630 (May 20, 2003).

Based on the provisions outlined above, the Secretary has
determined that there is no positive association between
herbicide exposure and the development of gastrointestinal
tract tumors.  In reviewing the scientific evidence the NAS
assigned gastrointestinal tract tumors to a category labeled
"limited or suggestive evidence of no association."  This
means that the available studies are mutually consistent in
not showing a positive association between exposure to
herbicides and the development of gastrointestinal tumors at
any level of exposure.  Taking account of the available
evidence and NAS' analysis, the Secretary has found that the
credible evidence against an association between herbicide
exposure and gastrointestinal tract cancer outweighs the
credible evidence for such an association, and he has
determined that a positive association does not exist.  See
Diseases Not Associated With Exposure to Certain Herbicide
Agents, 68 Fed. Reg. 27,632, 27,639 (May 20, 2003).

Because the determination made by the Secretary is based on
an analysis by the NAS of the scientific literature
pertaining to herbicide exposure and the development of
disease, which is published in the Federal Register, that
finding is highly probative.  The appellant's private
physician did not provide any scientific studies in support
of his opinion that there was a relationship between Agent
Orange exposure and the development of colon cancer.
Because he did not provide any support for his opinion, his
opinion is of low probative value.  See Hernandez-Toyens v.
West, 11 Vet. App. 379, 382 (1998) (the failure of the
physician to provide a basis for his opinion goes to the
weight and credibility of the evidence).  The Board finds,
therefore, that the preponderance of the competent and
probative evidence shows that a positive association does
not exist between Agent Orange exposure and the development
of colon cancer.  For that reason the Board has determined
that the preponderance of the evidence is against the claim
of entitlement to service connection for the cause of the
veteran's death.

ORDER

The claim of entitlement to service connection for the cause
of the veteran's death is denied.

____________________________________________
	Kathy A. Banfield
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision.  The Board may also choose to remand an issue or issues to the
local VA office for additional development.   If the Board did this in your
case, then a "Remand" section follows the "Order."  However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything.  We will return your file to your local VA office to implement
the BVA's decision.  However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
?	Appeal to the United States Court of Appeals for Veterans Claims
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision
?	File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
?	Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office.  None of these
things is mutually exclusive - you can do all five things at the same time
if you wish.  However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.

How long do I have to start my appeal to the Court?  You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims.  If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court.  As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.  You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website.  The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.

How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence.  Send this motion to the address above for the
Director, Management and Administration, at the Board.  Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE).  Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim.  However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal?  Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you.  An accredited representative of a
recognized service organization may represent you free of charge.  VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso.  You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court.  Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants.  This information is also
provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me?  Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations.  An
attorney can also charge you for representing you before the Court.  VA
cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases:  An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan.  For more information, read section 5904, title 38, United
States Code.

In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.

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