Citation Nr: 0506792 Decision Date: 03/10/05 Archive Date: 03/21/05 DOCKET NO. 99-00 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for porphyria cutanea tarda, to include as a residual of exposure to Agent Orange during service. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from November 1967 to October 1969. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision the Department of Veterans Affairs (VA) Regional office in St. Louis, Missouri (RO). The issue involving entitlement to service connection for post-traumatic stress disorder is addressed in the Remand portion of the decision below; this issue is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The veteran did not have active military service in the Republic of Vietnam within the meaning of the controlling regulations. 2. The veteran has a diagnoses of porphyria cutanea tarda dating from 1996. 3. The is no evidence that the veteran was diagnosed with porphyria cutanea tarda during active military service or within a year of his separation from service. 4. There is no competent medical evidence linking the veteran's porphyria cutanea tarda to active military service. CONCLUSION OF LAW Porphyria cutanea tarda was not incurred in, or aggravated by, active military service, and may not be presumed to have been so incurred, to include as a result of exposure to Agent Orange during service. 38 U.S.C.A. §§ 101(16), 1110, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2004). First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Second, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO provided the veteran the required notice with respect to his claim for service connection in a letter dated April 2003. Third, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained all the relevant records related to the veteran's claims. Thus, VA's duty to assist has been fulfilled. Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with the VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. II. Service Connection The veteran claims entitlement to porphyria cutanea tarda, claimed as a skin rash, as a residual of exposure to Agent Orange during service. He asserts that he was exposed to Agent Orange during service aboard the USS CORAL SEA (CVA 43). He asserts that as a result of this exposure he developed porphyria cutanea tarda. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110. In addition, 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). Further, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of Sec. 3.307(a)(6) are met. 38 C.F.R. § 3.309(e)(emphasis added). Porphyria cutanea tarda, may be presumed to have been incurred during active military service as a result of exposure to Agent Orange if it is manifest to a degree of 10 percent within the first year after the last date on which the veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6)(ii). If the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also not satisfied, then the veteran's claim shall fail. 338 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d), (2004). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). VA regulations define that "service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307 (a)(6)(iii) (emphasis added). In VAOPGCPREC 27-97, the VA General Counsel held that service aboard a deep-water naval vessel, such as an aircraft carrier, in the waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam without evidence showing actual visitation to the Republic of Vietnam. The Board is bound by the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c) (West 2002). See VAOPGCPREC 27-97; 62 Fed. Reg. 63604 (1997). In this case the veteran avers that he developed porphyria cutanea tarda as a result of exposure to Agent Orange in service. The veteran's service medical records do not reveal a diagnosis of porphyria cutanea tarda during military service. Separation examination of the veteran was conducted in September 1969. Evaluation of the skin revealed that the veteran's skin was "normal" with no abnormalities noted by the examining physician. VA medical records dated in March 1996 reveal that the veteran was treated for complaints of a rash on his hands and forearms. The assessment was to rule out "PCT" (porphyria cutanea tarda). Subsequently, a May 1996 VA treatment record shows a confirmed diagnosis of porphyria cutanea tarda. In June 1999, the veteran presented sworn testimony before the RO. He testified that he served aboard the aircraft carrier USS CORAL SEA (CVA 43). He further testified that he served in an aviation deck crew capacity and that he was required to wash off aircraft that had flown over Vietnam, that he claims were covered in Agent Orange. Finally, the veteran claimed that he went ashore in Vietnam for a few days. He stated that he flew ashore with several other crewmembers in a helicopter to retrieve portions of a crashed airplane. The veteran's separation papers, DD 214, reveal that the veteran served in the United States Navy and was separated as a Airman Recruit (AR). This record also reveals that the veteran was awarded the Vietnam Service Medal and the Vietnam Campaign Medal, and that he had a little over one year of sea service. Other service personnel records reveal that the veteran served in Attack Squadron 52 (VA-52) from August 1968 to October 1969. These records also reveal that the veteran completed training in "conventional weapons handling (non- ordnanceman)" and "flight deck firefighting." The veteran's service medical records reveal treatment entries showing treatment for occasional minor ailments aboard the USS CORAL SEA (CVA 43) from September 1968 to April 1969. For the purposes of this issue, the Board concludes from this evidence that during his service in Attack Squadron 52 that the squadron, along with the veteran, was deployed aboard the USS CORAL SEA from approximately September 1968 to April 1969, and that during this time, the ship served off the shore of Vietnam. However, the Board finds no objective evidence of the veteran's assertions that he actually visited Vietnam for a few days. He claims that an aircraft flown by a "SEAL Officer" was shot down in Vietnam and that was sent ashore in a helicopter with several others for a few days to "pick up parts of the plane." While the veteran served as an unrated airman with a Navy attack squadron, there is no evidence that he qualified for any rating, or had any specific training which would indicate he had duties involving search and rescue, or aircraft repair and salvage operations. The veteran has a current diagnosis of porphyria cutanea tarda which is one of the diseases specified at 38 C.F.R. § 3.309(e) for which presumptive service connection on the basis of Agent Orange exposure is warranted. However, there is no evidence that the veteran's porphyria cutanea tarda became manifest during service or within the first year after he separated from service as required by the provisions of 38 C.F.R. § 3.307(a)(6)(ii). Moreover, the veteran is not presumed to have been exposed to Agent Orange during service. As noted above, the controlling regulation states that "service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307 (a)(6)(iii) (emphasis added). There is no objective evidence which shows that veteran, or the ship on which he attached, actually visited port in Vietnam. Again as noted above, the VA General Counsel held that service aboard a deep-water naval vessel, such as an aircraft carrier, in the waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam without evidence showing actual visitation to the Republic of Vietnam. VAOPGCPREC 27-97; 62 Fed. Reg. 63604 (1997). The Board is bound by this opinion. Accordingly, the veteran has not met the regulatory presumption of active service in the Republic of Vietnam during the Vietnam era. Therefore, he is not presumed to have been exposed to Agent Orange during service. With no such exposure, service connection on a presumptive basis under 38 C.F.R. § 3.309(e) cannot be granted. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (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 United States Court of Appeals for Veterans Claims (Court) has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In the present case the medical evidence of record reveals a current diagnosis of porphyria cutanea tarda. The first diagnosis of the disease is in 1996, which is almost three decades after the veteran separated from military service. There is also no medical evidence of record which in anyway relates the veteran's porphyria cutanea tarda to military service. Accordingly, service connection for porphyria cutanea tarda is not warranted. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for porphyria cutanea tarda is denied. REMAND The veteran claims entitlement to service connection for post-traumatic stress disorder (PTSD). He claims that during service aboard the USS CORAL SEA (CVA 43) while conducting his duties on the flight deck, he witnessed several accidental deaths. In June 1999, the veteran presented sworn testimony before the RO that he served aboard the aircraft carrier USS CORAL SEA (CVA 43). He further testified that he served in an aviation deck crew capacity on the flight deck and that he witnessed several accidental deaths. The RO attempted to verify the veteran's stressors by a request to the National Personnel Records Center which asked "confirm actual dates veteran was assigned to the USS CORAL SEAS [sic]." The response was that there was no information found to indicate that the veteran was assigned to the USS CORAL SEA. The RO continued to deny the veteran's claim based on this response. The question asked of the National Personnel Records Center, however, was incorrect. The veteran has never claimed he was "assigned" to the USS CORAL SEA; he has, however, claimed that he served in Attack Squadron 52 (VA-52), which was deployed on the USS CORAL SEA. The veteran's separation papers, DD 214, reveal that the veteran served in the United States Navy and was separated as a Airman Recruit (AR). This record also reveals that the veteran was awarded the Vietnam Service Medal and the Vietnam Campaign Medal, and that he had a over one year of sea service. Other service personnel records reveal that the veteran served in Attack Squadron 52 (VA-52) from August 1968 to October 1969. These records also reveal that the veteran completed training in "conventional weapons handling (non-ordnanceman)" and "flight deck firefighting." The veteran's service medical records reveal treatment entries showing treatment for occasional minor ailments aboard the USS CORAL SEA (CVA 43) from September 1968 to April 1969. Accordingly, the evidence of record appears to support the veteran's claims that during service he served in Navy Attack Squadron 52; the squadron, along with the veteran, was deployed aboard the USS CORAL SEA from approximately September 1968 to April 1969; and, that during this time the ship served off shore of Vietnam. Accordingly, further attempts to assist the veteran with verification of his stressors should be conducted. The veteran has VA medical diagnoses of PTSD which date from approximately 1997. However, a VA psychiatric examination of the veteran has not been conducted. An examination may need to be conducted if development reveals that the veteran was exposed to stressors during service. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is remanded for the following development: 1. The RO should attempt to verify the veteran's stressors by requesting the following from the National Personnel Records Center (NPRC), the Department of the Navy, and/or U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, VA 22150-3197, which ever is deemed appropriate. The RO should request to know: a. For the period of time from August 1968 to October 1969 was Attack Squadron 52 (VA-52) deployed aboard the USS CORAL SEA (CVA 43)? If so, please provide the exact dates and confirm that the ship deployed to Vietnam waters during this time. b. For the period of deployment of VA-52 aboard the USS CORAL SEA during the above time frame were there any documented fatalities on the flight deck? Specifically, were there any fatalities on the flight deck in December 1968 and January 1969? 2. The RO should make a determination about which stressor(s) are supported by credible supporting evidence that the claimed in-service stressor(s) occurred. 3. Following the above, if and only if, adequate corroboration of stressors is obtained, the veteran should be provided with a VA psychiatric examination by a psychiatrist to ascertain the nature, severity, and etiology of any psychiatric disorder found. Regarding the claim for PTSD, the RO must provide the examiner the summary of any verified stressors described above, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to any verified in- service stressor has resulted in the current psychiatric symptoms. The examination report must include a detailed account of all pathology found to be present. If there are different psychiatric disorders than PTSD, the examiner is requested if possible, to reconcile the diagnoses and specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. If a diagnosis of PTSD is appropriate, the examiner should specify the credible stressors that caused the disorder. The examiner must review the veteran's service medical records and indicate if the symptoms of hand shakes and the assessment of "over-active sympathetic nervous system" during service were precursor symptoms of any current psychiatric disorder. All necessary special studies or tests including psychological testing and evaluation must be accomplished. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF) and include a definition of the numerical code assigned. The entire claims folder must be made available to and reviewed by the examiner in conjunction with the examination. The report of examination should include a complete rationale for all opinions expressed. 4. The RO must notify the veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2004). In the event that the veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Following the above, the RO should readjudicate the veteran's claim. If the benefit on appeal remains denied, a supplemental statement of the case should be issued, and the veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs