05-00 673

• Court: Board of Veterans' Appeals
• Decided: January 13, 2011
• Docket: 05-00 673
• Status: Unpublished

Opinion

Citation Nr: 1101582 Decision Date: 01/13/11 Archive Date: 01/20/11

DOCKET NO. 05-00 673 ) DATE ) )

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania

THE ISSUES

1. Entitlement to service connection for residuals of shell fragment wounds of the legs.

2. Entitlement to service connection for peripheral vascular disease of the lower extremities, to include as secondary to residuals of shell fragment wounds of the legs.

3. Entitlement to an initial higher (compensable) rating for prostate cancer.

4. Entitlement to an initial higher (compensable) rating for erectile dysfunction.

5. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

S. D. Regan, Counsel

INTRODUCTION

The Veteran had active service from February 1966 to February 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 RO rating decision that granted service connection and a 100 percent rating for prostate cancer from January 21, 2003 to February 28, 2004, and a noncompensable rating since March 1, 2004, and granted service connection and a noncompensable rating for erectile dysfunction, effective January 21, 2003. By this decision, the RO also denied service connection for the following conditions: PTSD; residuals of shell fragment wounds of the legs; and peripheral vascular disease of the lower extremities, to include as secondary to residuals of shell fragment wounds of the legs.

The Board notes that the Veteran's contentions as to the issue of entitlement to an initial higher (compensable) rating for prostate cancer essentially pertain to the evaluation of the severity of his condition since March 1, 2004, the date a noncompensable rating was assigned.

In a September 2008 decision, the Board denied the Veteran's claim for entitlement to service connection for PTSD. The Board remanded the issues of entitlement to service connection for residuals of shell fragment wounds of the legs; entitlement to service connection for peripheral vascular disease of the lower extremities, to include as secondary to residuals of shell fragment wounds of the legs; entitlement to an initial higher (compensable) rating for prostate cancer; and entitlement to an initial higher (compensable) rating for erectile dysfunction, for further development.

The Veteran then appealed the Board's decision, as to the issue of entitlement to service connection for PTSD, to the United States Court of Appeals for Veterans Claims (Court). In December 2009, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board's decision as to that issue be vacated and remanded. A January 2010 Court Order granted the motion.

The issues of entitlement to service connection for a psychiatric disorder, to include PTSD, is 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. The Veteran does not have residuals of shell fragment wounds of the legs.

2. The Veteran's peripheral vascular disease was not present during service or for many years thereafter, and was not caused by any incident of service. The Veteran also claims service connection for peripheral vascular disease, to include as secondary to service-connected residuals of shell fragment wounds of the legs, but he is not currently service-connected for residuals of shell fragment wounds of the legs.

3. Since March 1, 2004, the Veteran's service-connected prostate cancer is manifested by urinary frequency with a daytime voiding interval between one and two hours, or awakening to void three to four times per night. His prostate cancer is not manifested by renal dysfunction.

4. The Veteran's service-connected erectile dysfunction is manifested by an inability to achieve erections, but without any deformity.

CONCLUSIONS OF LAW

1. Residuals of shell fragment wounds were not incurred in or aggravated by service. 38 C.F.R. 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. § 3.303 (2009).

2. Peripheral vascular disease was not incurred in or aggravated by service and service connection for peripheral vascular disease as secondary to residuals of shell fragment wounds is precluded by law. 38 C.F.R. 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009).

3. The criteria for an initial rating of 20 percent for prostate cancer have been met continuously since March 1, 2004. 38 U.S.C.A §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2008).

4. The criteria for an initial higher (compensable) rating for erectile dysfunction have not been met. 38 U.S.C.A §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.20, 4.31, 4.115b, Diagnostic Code 7522 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice should inform the claimant about the information and evidence not of record that is necessary to substantiate the claim. It should also inform the claimant about the information and evidence that VA will seek to provide, and the information and evidence the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004).

Here, the RO sent correspondence in July 2003, a rating decision in April 2004, a statement of the case in December 2004, correspondence in January 2005, and correspondence in October 2008. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant. The case was last readjudicated in a November 2009 supplemental statement of the case.

In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant evidence. VA has also obtained medical examinations in relation to these claims. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law.

Analysis

I. Residuals of Shell Fragment Wounds of the Legs

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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(d).

Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with the decision of the United States Court of Appeals for Veterans Claims (Court) in Allen; however, based upon the facts in this case the regulatory change does not impact the outcome of the appeal.

To prevail on the issue of service connection, 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 medical 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).

The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 U.S.C.A. § 3.303(b).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Further, as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996).

The Veteran contends that he has residuals of shell fragment wounds of the legs that are related to his period of service. He specifically alleges that while on patrol in Vietnam the enemy fired a rocket and he received shrapnel wounds to, apparently, both legs.

The Veteran's service personnel records indicate that he was not awarded decorations evidencing combat, to include the Purple Heart Medal. He had one year and twenty-seven days of foreign and/or sea service. His occupational specialty was listed as a combat engineer. A January 2004 response from the National Personnel Records Center (NPRC) indicated that the Veteran served in Vietnam from July 1966 to January 1967 and from March 1967 to August 1967. His service personnel records also included notations that he participated in counter-insurgency operations in the Republic of Vietnam with "III MAF" and that he participated in Operation Prairie, Phase III, in the Quan Tri Province of the Republic of Vietnam. He served with various companies in the 3rd Marine Division and the 9th Marine Division in Vietnam.

The Veteran's service treatment records do not show complaints, findings, or diagnoses of any shell fragment wounds, including of the right and left leg.

The first post-service evidence of record of any possible residuals of shell fragment wounds is in November 1998, many years after the Veteran's period of service. This lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service).

A November 1998 VA general medical examination report noted that the Veteran was in Vietnam between 1966 and 1968. He stated that while he was in Vietnam, he was on patrol and the enemy came over and fired a rocket. The Veteran indicated that he suffered shrapnel injuries to both the right leg and to the right arm which resulted in some scar formation, but which were no longer a bother to him. The diagnoses included peripheral vascular disease; status post a femoral-popliteal bypass graft on the right lower extremity with a pending femoral-popliteal bypass graft on the left lower extremity; prominence of the anterosuperior margin of the right talus; and radiographically normal knees. The diagnoses did not refer to any shell fragment wounds of the legs.

A November 1998 VA orthopedic examination report essentially related the same information as to the Veteran's military service. The diagnoses were essentially the same as noted above and did not refer to any shell fragment wounds. A November 1998 X-ray report, as to the Veteran's knees, related an impression of radiographically normal knees.

Subsequent post-service private and VA treatment records include references to shell fragment wounds of the legs.

For example, a March 2003 bone scan report from Mercy Jeannette Hospital indicated that the Veteran reported that he had an injury to both lower legs during the Vietnam War and that he had metallic shrapnel in both lower legs. As to a conclusion, the examiner noted that the Veteran had "focal increased abnormal signal intensity in both lower legs, most likely related to injury from Vietnam War with shrapnel in both lower extremities." It was also reported that the remaining axial skeletal system appeared normal with no bone metastasis identified.

An April 2004 VA psychiatric examination report noted that the Veteran reported that he was hit in both legs by shell fragments from a rocket attack near Dong Ha, although he did not know exactly when such occurred. The diagnoses referred to other disorders.

An April 2004 consultation report from Mercy Jeannette Hospital noted, as to history, that the Veteran reported that he had a Vietnam War injury in the lower leg with fragments of metal left in. As to the Veteran's extremities, the examiner reported that the pulses were decreased. The examiner indicated that the Veteran had a history of bypass surgeries in July 1998, December 1998, and July 2000, by a private physician, and that the last surgery was a bilateral aorto femoral bypass. No diagnoses were provided at that time.

A July 2009 VA arteries, veins, and miscellaneous examination report indicated that the Veteran's claims file was reviewed. The Veteran reported that he suffered shrapnel wounds to the bilateral lower extremities during combat. The examiner noted that such information was not documented and that the Veteran did not give a specific time for the shrapnel wounds. The examiner indicated that they would have occurred during his service time between "1965-1972", per the Veteran. The Veteran stated that approximately ten years ago, he began to have symptoms of peripheral vascular disease and that the condition had worsened during that time. It was noted that the Veteran underwent a femoral popliteal bypass in the right leg in 1998 and repeat right femoral popliteal bypass and a right to left bypass in 2000 and 2001, respectively. The Veteran reported that the surgeries had only slightly improved his circulation by approximately 20 percent and that he had decreased circulation to his extremities. He indicated that the skin on his feet became very light, or pale, and that his present symptoms included pain that increased with walking. He remarked that he had numbness with occasional sharp pain and cramping.

The Veteran reported that ten years earlier, his pain was intermittent with numbness, and only occasional sharp pain. He stated that it would increase with walking and cramping. He stated that, presently, his pain could happen spontaneously at any time. It was noted that there were no known exacerbating or alleviating factors other than that increased walking could bring on the symptoms. The Veteran reported that he was not currently being treated for his peripheral vascular disease other than with medication management without side-effects. He indicated that he had general fatigue otherwise and that he continued to have recurrent symptoms after his surgeries. The Veteran stated that in general his condition was in the lowered extremities below the knees. The examiner noted that previous records reported calf pain with ambulating. It was noted that the Veteran did not have a history of varicosities.

The examiner reported that the Veteran did not have muscle loss from his claimed shrapnel injuries and that, again, he did not give a specific date of onset. The examiner indicated that the Veteran did not report any flare-ups of muscle injuries, no severity, no duration, and no precipitating or alleviating factors. The examiner stated that the Veteran did not report any limitation of motion or functional impairment. The examiner also reported that the Veteran did not report any current muscle pain.

The examiner indicated that the Veteran reported primarily that he had shrapnel injuries to the front of the lower extremities. The examiner stated that the Veteran was unable to point out any scarring from the shrapnel. The examiner reported that there was no scarring visualized to the anterior and posterior lower extremities below the knees and between the knees and the ankles. The examiner remarked that there was no muscle tendon loss, no obvious deformities, and no anterior exit wounds. It was noted that there was no apparent bone, joint, or nerve damage, and no muscle herniation. The examiner indicated that the Veteran had normal muscle strength and no loss of muscle function. The examiner related that the Veteran had trace edema of the right ankle, with none to the left. It was noted that there was no painful scarring and no skin breakdown due to know scarring. The examiner indicated that she was unable to determine depth, underlying soft tissue damage, limitation of motion, or other limitation of function because there was no scarring. The examiner further remarked that she was unable to determine inflammation, edema, keloid formation, length/width, adherence to underlying tissue, depression, elevation to palpation, abnormal texture, pigmentation, induration or inflexibility, or underlying tissue loss on scars that did not exist. An X-ray, as to the Veteran's bilateral tibia and fibula, related an impression of no radiographic abnormality identified in the left or right tibia and fibula.

As to diagnoses, the examiner indicated that shell fragment wounds of the lower extremities between the ankles and the knees were not established at that time. The examiner stated that "there [was] no medical evidence, no evidence per claims file review, [and] no visualized scarring." The examiner commented that "any peripheral vascular disease of the lower extremities would not be secondary to shell fragment wound since no evidence is found. Most likely secondary to Veteran's history of smoking, hyperlipidemia, and alcohol intake." The examiner further indicated that shell fragment wounds of the bilateral lower extremities were not found at that time. The examiner stated that there was no medical evidence of shell fragment wounds, no muscle tissue loss, no visualized scarring, and no retained fragments found on X-ray.

In evaluating the probative value of competent medical evidence, the United States Court of Appeals for Veterans Claims (hereinafter Court) has stated, in pertinent part:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .

Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

As stated by the Court, the determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

As stated above, there are no personnel records or medical records or record of examination from the Veteran's period of service ending in 1969, that document any shell fragment wounds to the legs. No complaints or findings of such are reported for nearly 30 years after service.

While the Veteran has given a history of shell fragment wound in the legs, the Board doubts the credibility of this history. In addition to the lack of any supporting evidence from service or for nearly three decades after service, the Board is keenly aware of the fact that medical professionals have only started including a history of shell fragment wounds in documents since the Veteran reported that history in 1998. The Board finds it pertinent, however, that despite the Veteran's reports of a history of shell fragment wounds to the legs, medical professionals have not found any objective evidence of such.

The Board observes that a November 1998 VA general medical examination report noted that the Veteran reported that while he was in Vietnam, he was on patrol and the enemy came over and fired a rocket. The Veteran indicated that he suffered shrapnel injuries to both the right leg and to the right arm which resulted in some scar formation, but which were no longer a bother to him. The diagnoses did not refer to any shell fragment wounds of the legs. Additionally, a November 1998 VA orthopedic examination report essentially related the same information as to the Veteran's military service. The diagnoses did not refer to any shell fragment wounds. Further, the Board notes that an April 2004 psychiatric examination report noted that the Veteran reported that he was hit in both legs by shell fragments from a rocket attack near Dong Ha, although he did not know exactly when such occurred. The diagnoses referred to other disorders. Also, an April 2004 consultation report from Mercy Jeannette Hospital noted, as to history, that the Veteran reported that he had a Vietnam War injury in the lower leg with fragments of metal left in. The Board observes that the Veteran's statements above indicating that he suffered shell fragment wounds during his period of service were nothing more than a recitation of his belief. This recited history of shell fragment wound to the legs has not been supported by any objective medical findings. As such, any repetitions of these statements by doctors reciting a reported medical history, are not probative in linking any the Veteran's claimed residuals of shell fragment wounds of the legs with his period of service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional).

Additionally, the Board notes that a March 2003 bone scan report from Mercy Jeannette Hospital indicated that the Veteran reported that he had an injury to both lower legs during the Vietnam War and that he had metallic shrapnel in both lower legs. As to a conclusion, the examiner noted that the Veteran had "focal increased abnormal signal intensity in both lower legs, most likely related to injury from Vietnam War with shrapnel in both lower extremities." It was also reported that the remaining axial skeletal system appeared normal with no bone metastasis identified. The Board observes that there is no indication that the examiner reviewed the Veteran's claims file in providing the opinion that the Veteran had focal increased abnormal signal intensity in the lower legs related to shrapnel injuries in both lower extremities from the Vietnam War. Although an examiner can render a current diagnosis based on his examination of a claimant, without a thorough review of the record, his opinion regarding etiology if based on facts reported by the claimant can be no better than the facts alleged by the claimant. See Swann v. Brown, 5 Vet. App. 229 (1993). Additionally, the Board observes that without a review of the claims file in this case, an examiner is unable to review the positive and negative opinions of record addressing the etiology of the Veteran's alleged shell fragment wounds, as well as the Veteran's medical history, and thereby provide a fully informed opinion. See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these circumstances, the opinion provided pursuant to the March 2003 bone scan report from Mercy Jeannette Hospital has no probative value in this matter.

Conversely, the Board observes that the July 2009 VA arteries, veins, and miscellaneous examination report indicated that the Veteran's claims file was reviewed. The examiner had the opportunity to review service treatment records and all records on file and see firsthand that the records showed no documentation of shell fragment wounds to the legs. As to diagnoses, the examiner indicated that shell fragment wounds of the lower extremities between the ankles and the knees were not established at that time. The examiner stated that "there [was] no medical evidence, no evidence per claims file review, [and] no visualized scarring." The examiner commented that "any peripheral vascular disease of the lower extremities would not be secondary to shell fragment wound since no evidence is found. Most likely secondary to Veteran's history of smoking, hyperlipidemia, and alcohol intake." The examiner further indicated that shell fragment wounds of the bilateral lower extremities were not found at that time. The examiner stated that there was no medical evidence of shell fragment wounds, no muscle tissue loss, no visualized scarring, and no retained fragments found on X-ray. The Board notes that the VA examiner reviewed the Veteran's entire claims file, discussed his medical history, and provided rationales for her opinions. Therefore, the Board finds that the VA examiner's opinions are the most probative in this matter. See Wensch v. Principi, 15 Vet. App. 362 (2001).

Further, in its role as a finder of fact, the Board observes that the Veteran has inconsistently reported suffering shrapnel wounds to his right leg and right arm pursuant to November 1998 VA examination reports, and then reporting shrapnel wounds to the front of both legs at the July 2009 VA arteries, veins, and miscellaneous examination. Also, the Veteran's service treatment records show no evidence of any shell fragment wounds and his service personnel records do not show that he received the Purple Heart Medal. Thus, the credibility and probative value of his accounts regarding the alleged shell fragment wounds is undermined. See Dalton, Caluza, supra. Simply put, the Board does not find the Veteran's statements credible in light of the lack of objective findings of shell fragment wounds during service, the lack of comment regarding such for nearly 30 years after service, and the specific findings by a medical professional in 2009 as to the complete absence of medical evidence of shell fragment wounds.

The Board finds that the evidence fails to show any residuals of shell fragment wounds of the legs. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Here, the evidence indicates no present residual of shell fragment wounds of the legs, and thus service connection is not warranted.

The Veteran has alleged that he has residuals of shell fragment wounds of the legs had their onset in service. As a lay person, however, the Veteran is not competent to give a medical opinion on the diagnosis or etiology of a condition. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The Board observes that the Veteran is competent to report that he suffered injuries or shell fragment wounds to his legs during service, but, as discussed above, the Board finds that his statements in that regard are not credible. See Dalton, Caluza, supra.

In short, there is no documentation of treatment during service for shell fragment wounds of the legs, and no probative post- service diagnoses of residuals of shell fragment wounds. There is no basis with which to tie current complaints of residuals of shell fragment wounds of the legs to service. As the preponderance of the evidence is against a finding that the Veteran currently suffers from residuals of malaria, the claim must be denied. 38 .S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

II. Peripheral Vascular Disease of the Lower Extremities

The Veteran contends that he has peripheral vascular disease that is related to his period of service, or, more specifically, that is related to his residuals of shell fragment wounds of the legs.

The Veteran's service treatment records do not show complaints, findings, or diagnoses of peripheral vascular disease of the lower extremities.

The first post-service evidence of record of any peripheral vascular disease of the lower extremities is in November 1998, many years after the Veteran's period of service. This lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service).

A November 1998 VA general medical examination report noted that the Veteran was in Vietnam between 1966 and 1968. He stated that while he was in Vietnam, he was on patrol and the enemy came over and fired a rocket. The Veteran indicated that he suffered shrapnel injuries to both the right leg and to the right arm which resulted in some scar formation, but which were no longer a bother to him. He indicated that he had a femoral popliteal bypass graft done in July 1998 on the right side. The diagnoses included peripheral vascular disease; status post a femoral- popliteal bypass graft on the right lower extremity with a pending femoral-popliteal bypass graft on the left lower extremity; prominence of the anterosuperior margin of the right talus; and radiographically normal knees. The diagnoses did not refer to any shell fragment wounds of the legs.

A November 1998 VA orthopedic examination report essentially related the same information as to the Veteran's military service. The diagnoses were essentially the same as noted above and did not refer to any shell fragment wounds.

Post-service private and VA treatment records show treatment for peripheral vascular disease of the lower extremities on numerous occasions.

A March 2003 bone scan report from Mercy Jeannette Hospital indicated that the Veteran reported that he had an injury to both lower legs during the Vietnam War and that he had metallic shrapnel in both lower legs. As to a conclusion, the examiner noted that the Veteran had "focal increased abnormal signal intensity in both lower legs, most likely related to injury from Vietnam War with shrapnel in both lower extremities." It was also reported that the remaining axial skeletal system appeared normal with no bone metastasis identified.

A July 2009 VA arteries, veins, and miscellaneous examination report indicated that the Veteran's claims file was reviewed. The examination report was discussed in detail pursuant to the issue determined above. As to diagnoses, the examiner indicated that shell fragment wounds of the lower extremities between the ankles and the knees were not established at that time. The examiner stated that "there [was] no medical evidence, no evidence per claims file review, [and] no visualized scarring." The examiner commented that "any peripheral vascular disease of the lower extremities would not be secondary to shell fragment wound since no evidence is found. Most likely secondary to Veteran's history of smoking, hyperlipidemia, and alcohol intake."

In evaluating the probative value of competent medical evidence, the United States Court of Appeals for Veterans Claims (hereinafter Court) has stated, in pertinent part:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .

As stated by the Court, the determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

The Board notes that a March 2003 bone scan report from Mercy Jeannette Hospital indicated that the Veteran reported that he had an injury to both lower legs during the Vietnam War and that he had metallic shrapnel in both lower legs. As to a conclusion, the examiner noted that the Veteran had "focal increased abnormal signal intensity in both lower legs, most likely related to injury from Vietnam War with shrapnel in both lower extremities." It was also reported that the remaining axial skeletal system appeared normal with no bone metastasis identified. Although the report did not specifically refer to peripheral vascular disease, it did indicate a possible relationship between current additional leg problems and shell fragment wounds of the legs. The Board observes, however, that there is no indication that the examiner reviewed the Veteran's claims file in providing the opinion that the Veteran had focal increased abnormal signal intensity in the lower legs related to shrapnel injuries in both lower extremities from the Vietnam War. Although an examiner can render a current diagnosis based on his examination of a claimant, without a thorough review of the record, his opinion regarding etiology if based on facts reported by the claimant can be no better than the facts alleged by the claimant. See Swann v. Brown, 5 Vet. App. 229 (1993). Additionally, the Board observes that without a review of the claims file in this case, an examiner is unable to review the Veteran's medical history, and thereby provide a fully informed opinion. See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these circumstances, the opinion provided pursuant to the March 2003 bone scan report from Mercy Jeannette Hospital is not credible and has no probative value in this matter.

Conversely, the Board notes that the July 2009 VA arteries, veins, and miscellaneous examination report indicated that the Veteran's claims file was reviewed. As to diagnoses, the examiner indicated that shell fragment wounds of the lower extremities between the ankles and the knees were not established at that time. The examiner stated that "there [was] no medical evidence, no evidence per claims file review, [and] no visualized scarring." The examiner commented that "any peripheral vascular disease of the lower extremities would not be secondary to shell fragment wound since no evidence is found. Most likely secondary to Veteran's history of smoking, hyperlipidemia, and alcohol intake." The Board notes that the VA examiner reviewed the Veteran's entire claims file, discussed his medical history, and provided rationales for her opinions. Therefore, the Board finds that the VA examiner's opinions are the most probative in this matter. See Wensch v. Principi, 15 Vet. App. 362 (2001).

The Board observes that the probative medical evidence does not suggest that the Veteran's current peripheral vascular disease of the lower extremities is related to his period of service. In fact, the probative medical evidence provides negative evidence against this finding, indicating that the Veteran's current peripheral vascular disease of the lower extremities began many years after his period of service, without any relationship to any incident of service.

The Veteran has alleged that his current peripheral vascular disease had its onset during his period of service, specifically as a shell fragment wounds. As a layperson, however, the Veteran is not competent to give a medical opinion on the diagnosis or etiology of a condition. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Additionally, as noted in the discussion of the issue above, the Board finds the Veteran's statements that he suffered shell fragment wounds during service to not be credible. See Dalton, Caluza, supra.

Additionally, the Board notes that the Veteran is also attempting to establish service connection for peripheral vascular disease of the lower extremities as secondary to residuals of shell fragment wounds of the legs. The Board notes that secondary service connection presupposes the existence of an established service-connected disability. Residuals of shell fragment wounds of the legs are not currently service-connected, and thus, there can be no secondary service connection for any condition allegedly due to residuals of shell fragment wounds of the legs. Where the law and not the evidence is dispositive, a claim must be denied because of the absence of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426 (1994). Since there is no legal basis for an award of secondary service connection for peripheral vascular disease of the lower extremities, as a matter of law the claim on that basis must be denied. Sabonis, supra.

The weight of the competent evidence demonstrates that the Veteran's peripheral vascular disease of the lower extremities began many years after his period of service and that it was not caused by any incident of service. This condition was neither incurred in nor aggravated by service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for peripheral vascular disease of the lower extremities, must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III. Prostate Cancer

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. The Board interprets reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Board will evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). A recent decision of the Court has held that in determining the present level of disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, from the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.

The RO has rated the Veteran's residuals of prostate cancer under Diagnostic Code 7528, which pertains to malignant neoplasms of the genitourinary system and provides for up to a 100 percent disability rating. It also provides that following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. 38 C.F.R. § 4.115b. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals such as voiding dysfunction or renal dysfunction, whichever is predominant. Only the predominant area of dysfunction is to be considered for rating purposes to avoid violating the rule against the pyramiding of disabilities. 38 C.F.R. §§ 4.14, 4.115a.

The Veteran was assigned an initial 100 percent rating for residuals of prostate cancer from January 21, 2003 to February 28, 2004, and a noncompensable (0 percent) rating since March 1, 2004 contentions pertain to the evaluation of the severity of the condition since March 1, 2004.

The Veteran has not had any active malignancy since March 1, 2004. 38 C.F.R. § 4.115b. As the Veteran has not had any active malignancy since that time, the Board finds that an assignment of a 100 percent disability rating under Diagnostic Code 7528 for the Veteran's residuals of prostate cancer would not be appropriate at any point since March 1, 2004. Accordingly, his disability will be rated on residuals such as voiding dysfunction or renal dysfunction.

Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a.

Evaluation under urine leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post- surgical urinary diversion, urinary incontinence, or stress incontinence. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a 60 percent evaluation is warranted. When there is leakage requiring the wearing of absorbent materials which must be changed two to four times per day, a 40 percent disability rating is warranted. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a.

Urinary frequency encompasses ratings ranging from 10 to 40 percent. A 40 percent rating contemplates a daytime voiding interval less than one hour, or awakening to void five or more times per night. A 20 percent rating contemplates daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 10 percent rating contemplates daytime voiding interval between two and three hours, or awakening to void two times per night. 38 C.F.R. § 4.115a.

Finally, obstructed voiding entails ratings ranging from noncompensable to 30 percent. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every two to three months. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year. 38 C.F.R. § 4.115a.

Urinary tract infections requiring drug therapy, one to two hospitalizations per year and/or requiring intermittent intensive management warrant a 10 percent evaluation. A 30 percent rating is warranted for recurrent symptomatic infections requiring drainage/frequent hospitalization (greater than two times per year), and/or requiring continuous intensive management. Where urinary tract infections result in poor renal function, the disability is to be evaluated as poor renal function. 38 C.F.R. § 4.115a.

Renal dysfunction manifested by constant or recurring albumin with hyaline and granular casts or red blood cells, or transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101 warrants a 30 percent evaluation. Renal dysfunction resulting in albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under diagnostic code 7101 warrants a 60 percent evaluation. Renal dysfunction manifested by persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, warrants an 80 percent evaluation. Finally, renal dysfunction that requires regular dialysis, or precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent evaluation. 38 C.F.R. § 4.115a.

The medical evidence associated with the claims file does not reflect that the Veteran has experienced renal dysfunction or recent urinary tract infections. Accordingly, the Board concludes that voiding dysfunction is the Veteran's predominant complaint.

An April 2004 VA genitourinary examination report noted that the Veteran was found to have a prostate-specific antigen (PSA) of 4.62 in February 2003 and that he was also felt to have at least a unilateral, if not bilateral, abnormality on a rectal examination of the prostate. It was reported that the Veteran underwent a needle biopsy in March 2003, which showed a Gleason sum of 5+4=9, on the left. The examiner indicated that a staging bone scan, computed tomography scan, and chest X-ray were negative for metastatic disease. The examiner stated that because of the high Gleason score, the Veteran elected to undergo radiation therapy. The Veteran reported that prior to his radiation therapy, he did have some symptoms of a weak urinary stream, but he denied that he had any dysuria or hematuria. The Veteran indicated that, presently, he believed that he generally emptied well. He denied that he had any incontinence and he stated that he did not require a pad. The Veteran remarked that he had not had any erection since his radiation therapy. It was noted that an April 2004 PSA was 1.2.

The examiner reported that the Veteran's genitourinary examination showed a normal penis without probable plaques or urethral discharge. The examiner stated that the Veteran's testicles were descended, bilaterally, and that they were nontender to palpation. The examiner indicated that the Veteran had no palpable inguinal adenopathy or inguinal hernia. It was noted that the Veteran refused a rectal examination. As to an assessment, the examiner indicated that the Veteran had clinical T2b2 T2c disease prior to his radiation therapy. The examiner noted that the Veteran's PSA had declined from 4.6 to a 0.5 nadir, with the most recent PSA of 1.2 in April 2004. The examiner commented that the Veteran did not have any problems with urinary control and that he did not have any erections at that time.

Private treatment records dated from April 2004 to May 2008 show treatment for multiple disorders.

The most recent July 2009 VA arteries, veins, and miscellaneous examination report noted that the Veteran reported that he was not employed currently and that he previously worked as a truck driver. The Veteran indicated that he was on disability for approximately the last ten years due mainly to his circulation in his legs, which interfered with his ability to work. He stated that he was diagnosed and treated for prostate cancer six years ago. He reported that he received forty-nine radiation treatments, five days a week, until the treatment was completed. The Veteran indicated that he had received no additional treatment since that time other than for follow-ups with PSA studies, which had been within normal limits.

The examiner indicated that the Veteran was not reporting lethargy, weakness, anorexia, or weight loss. The examiner reported that the Veteran did have nighttime urination every two hours and daytime urination every two hours, more or less depending on fluid intake. It was noted that the Veteran stated that he had occasional hesitancy, but that he denied any urine stream abnormalities. The examiner indicated that the Veteran denied that he had any dysuria or hematuria. The examiner reported that the Veteran denied that he had any incontinence of urine, and that he had not undergone any surgery to any part of his urinary tract. The examiner stated that the Veteran denied that he had recurrent urinary tract infections, renal colic, bladder stones, or acute nephritis. It was also noted that the Veteran denied that he had any hospitalizations for urinary tract disease, and that he denied that he had any neoplasms, cancers, or abnormalities of the penis, testicles, or scrotum. The examiner indicated that the Veteran did report erectile dysfunction, which started approximately one year prior to his diagnosis of prostate cancer. The examiner noted that the Veteran indicated that he had decreased function in the beginning in 2001, and no erectile function at all presently. The Veteran reported that he had not tried any medications because he was not eligible due to his heart condition. The examiner stated that a July 2008 PSA was normal at 0.51. The diagnoses included prostate cancer, treated, in remission, with residual erectile dysfunction.

Viewing all the evidence, the Board finds that continuously since March 1, 2004, there is a reasonable basis for finding that the criteria for a 20 percent rating for the Veteran's prostate cancer are met. As noted above, the medical evidence indicates that voiding dysfunction is the Veteran's predominant complaint regarding his residuals of prostate cancer. The Board observes that the Veteran does not have renal dysfunction or any recent urinary infections. The Board notes, however, that the Veteran has been shown to have voiding dysfunction, or more specifically, urinary frequency. The most recent July 2009 VA arteries, veins, and miscellaneous examination report noted that the Veteran did have nighttime urination every two hours and daytime urination every two hours, more or less depending on fluid intake. The examiner also reported that the Veteran stated that he had occasional hesitancy, but that he denied any urine stream abnormalities. The Board observes that the April 2004 VA genitourinary examination report noted that the Veteran stated that prior to his radiation therapy, he did have some symptoms of a weak urinary stream, but he denied that he had any dysuria or hematuria. The Veteran indicated that, presently, he believed that he generally emptied well. The Board notes that the April 2004 VA genitourinary examination report did not specifically provide information as to the Veteran's urinary frequency. The Board notes, therefore, that pursuant to the July 2009 VA arteries, veins, and miscellaneous examination report, there is evidence that the Veteran has urinary frequency with a daytime voiding interval between one and two hours, or awakening to void three to four times per night, as required for a 20 percent rating pursuant to 38 C.F.R. § 4.115a.

The Board observes that the evidence does not indicate that the Veteran has a daytime voiding interval of less than one hour, or awakening to void five or more times per night as required for a 40 percent rating pursuant to 38 C.F.R. § 4.115a. Additionally, there is no evidence of continual urine leakage or urinary incontinence requiring the wearing of absorbent materials which must be changed two to four times per days as required for a higher 40 percent rating pursuant to the criteria for urine leakage under 38 C.F.R § 4.115a. Further, the criteria as to obstructive voiding and urinary tract infections are not applicable in this case because the Veteran does not have such symptomatology. See 38 C.F.R. § 4.115a.

As this is an initial rating case, consideration has been given to "staged ratings" (different percentage ratings for different periods of time, since the effective date of service connection, based on the facts found). Fenderson v. West, 12 Vet.App. 119 (1999). However, staged ratings are not indicated in the present case, as the Board finds the Veteran's residuals of prostate cancer have continuously been 20 percent disabling since March 1, 2004, when the Veteran's 100 percent rating was reduced to a noncompensable (0 percent) rating.

The Board has also considered whether the record raises the matter of extraschedular ratings under 38 C.F.R. § 3.321(b)(1) (2009). The evidence does not reflect that the Veteran's prostate cancer, alone, has caused marked interference with employment (i.e., beyond that already contemplated in the assigned rating), or necessitated frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Based on the foregoing, the Board finds that referral for consideration of assignment of extra-schedular ratings is not warranted. 38 C.F.R. § 3.3219(b)(1).

Thus, an increased rating to 20 percent, continuously since March 1, 2004, for prostate cancer, is granted. The Board has considered the benefit-of-the-doubt rule in making the current decision. 38 U.S.CA. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

IV. Erectile Dysfunction

When a condition is not listed in the schedule, it will be permissible to rate it under a closely-related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2009). The Veteran's service- connected erectile dysfunction may be rated by analogy to penis deformity, with loss of erectile power. 38 C.F.R. §§ 4.20, 4.115(b) Diagnostic Code 7522 (2009). The Board can identify no more appropriate diagnostic code and the Veteran has not identified one. See Butts v. Brown, 5 Vet. App. 532, 538 (1993).

Diagnostic Code 7522 provides a single 20 percent rating where the evidence shows deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115(b), Diagnostic Code 7522. When the requirements for a compensable rating of a diagnostic code are not shown, a 0 percent rating is assigned. 38 C.F.R. § 4.31.

The RO has assigned a noncompensable (0 percent rating) for erectile dysfunction, effective January 21, 2003 (the effective date of service connection). The Board notes that the Veteran has also been granted special monthly compensation based on loss of use of a creative organ, due to erectile dysfunction.

The relevant medical evidence regarding the Veteran's service- connected erectile dysfunction was reported pursuant the discussion of the issue of entitlement to a higher rating for prostate cancer, noted above.

The medical evidence does not show any penile deformity. Although there is evidence of the Veteran reporting an inability to achieve and/or maintain erections, there is essentially no evidence of any testicular or penile deformities. Absent evidence of penile deformity, even though there is erectile dysfunction, a compensable rating is not warranted under Diagnostic Code 7522. As the requirements for a compensable rating under Diagnostic Code 7522 are not met, a noncompensable (0 percent) rating is proper pursuant to 38 C.F.R. § 4.31.

This is an initial rating case, on the granting of service connection. The Board finds that there are no distinct periods of time, since the effective date of service connection, during which the Veteran's erectile dysfunction has been more than 0 percent disabling. Thus "staged ratings" greater than a 0 percent rating are not warranted for any period of time since the effective date of service connection. Fenderson v. West, 12 Vet.App. 119 (1999).

The Board has also considered whether the record raises the matter of extraschedular ratings under 38 C.F.R. § 3.321(b)(1) (2009). The evidence does not reflect that the Veteran's erectile dysfunction, alone, has caused marked interference with employment (i.e., beyond that already contemplated in the assigned rating), or necessitated frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Based on the foregoing, the Board finds that referral for consideration of assignment of extra-schedular ratings is not warranted. 38 C.F.R. § 3.3219(b)(1).

As the preponderance of the evidence is against the claim for a higher (compensable) rating for erectile dysfunction, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

ORDER

Service connection for residuals of shell fragment wounds of the legs is denied.

Service connection for peripheral vascular disease of the lower extremities is denied.

A higher rating of 10 percent, but not greater, is granted for prostate cancer continuously since March 1, 2004, subject to the laws and regulations governing the disbursement of monetary benefits.

An initial higher (compensable) rating for erectile dysfunction is denied.

REMAND

The remaining issue on appeal is entitlement to service connection for a psychiatric disorder, to include PTSD. The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to those claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

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 DSM-IV]; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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 the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f).

When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather his alleged service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994).

The Veteran claims service connection for a psychiatric disorder, to include PTSD, as a result of his period of service. His service personnel records indicate that he was not awarded decorations evidencing combat. He had one year and twenty-seven days of foreign and/or sea service. His occupational specialty was listed as a combat engineer. A January 2004 response from the National Personnel Records Center (NPRC) indicated that the veteran served in Vietnam from July 1966 to January 1967 and from March 1967 to August 1967. His service personnel records also included notations that he participated in counter-insurgency operations in the Republic of Vietnam with "III MAF" and that he participated in Operation Prairie, Phase III, in the Quan Tri Province of the Republic of Vietnam. He served with various companies in the 3rd Marine Division and the 9th Marine Division in Vietnam.

The Veteran's service medical records do not show complaints, findings, or diagnoses of PTSD or any other psychiatric problems. Evaluations of the Veteran during that time make no reference to any such disorders.

Post-service private and VA treatment records show treatment for disorders including psychiatric problems. There is no evidence of treatment for PTSD.

The Veteran has reported various stressors. A November 1998 RO general medical examination report noted that the Veteran was in Vietnam between 1966 and 1968. He reported that he was in an infantry division and that he served all over Vietnam. He stated that while he was in Vietnam, he was on patrol and the enemy came over and fired a rocket. The Veteran indicated that he suffered shrapnel injuries to the right leg and to the right arm which resulted in some scar formation, but which was no longer a bother to him. He reported that he was involved in five combat situations while he was in Vietnam and that he was wounded. The diagnoses did not refer to any shell fragment wounds or to PTSD or to any psychiatric disorders.

A November 1998 VA orthopedic examination report essentially related the same information as to the veteran's military service. The diagnoses did not refer to any shell fragment wounds.

In an October 2003 response to PTSD stressor questionnaire, the Veteran reported that he was assigned to the 3rd Marine Division and that he served in many companies. He stated that he was in Da Nang, Ahn Hoa, Dong Ha, and the surrounding areas. He indicated that he was with a lot of companies because of his occupational specialty. The Veteran reported that he carried C-4 for mines, booby traps, and tunnels. He stated that he served at many outposts and that he went out on patrol and did his thing with explosives.

An April 2004 VA psychiatric examination report noted that the Veteran served in the Marine Corps between March 1966 and March 1969. He reported that that he was in Vietnam for approximately fourteen months between 1966 and 1968, but that he could not be more specific about the dates. The Veteran indicated that he was with the 3rd Marine Division as a combat engineer, but that he could not provide more specific information concerning the outfit to which he was assigned. The Veteran stated that he was assigned to a number of different outfits as he traveled around the country as a demolition expert. It was noted that the Veteran thought he was part of the 1st Battalion of the 9th Marines; the 3rd Battalion of the 9th Marines; and of the 26th Regiment of the 1st and 2nd Marine Division. It was also reported that the Veteran was very confused about providing such information. The Veteran further stated that he thought that he spent time near Da Nang Ahn Hoa and Dong Ha.

The Veteran reported that he worked as a demolitions expert and that he would blow up booby traps, mines, and tunnels to keep the troops safe. He stated that he would also set up demolition traps for the enemy and to protect US troops. He indicated that he went on many patrols and that he was assigned to many units. The Veteran claimed that he was exposed to rocket and mortar attacks on frequent occasions and that he went into tunnels periodically to clear them. He reported that he was hit in both legs by shell fragments from a rocket attack near Dong Ha, but that he did not know exactly when such occurred. He stated that he refused the Purple Heart Medal at that time, but that he was currently trying to receive it. It was noted that the Veteran had no history of formal psychiatric treatment. The examiner indicated, as to an impression, that based on a review of the Veteran's available medical records, including his claims file, as well as the currently conducted clinical examination, and assuming that the information gathered was factual and accurate, it was his opinion that the Veteran exhibited the following disorders: dysthymic disorder, secondary to medical difficulties, and alcohol dependence, active. The examiner commented that "the Veteran [did] not meet diagnostic criteria for the diagnosis of PTSD in terms of an identifiable specific stressor that [met] criteria A for the diagnosis, at least in terms of information presented." The examiner indicated that the Veteran complained of some symptoms of PTSD, but without a specific indentified stressor, the diagnosis could not be made. The examiner stated that the Veteran did meet the criteria for depression that was secondary to multiple medical problems and unrelated to his military service.

An April 2004 consultation report from Mercy Jeannette Hospital indicated, as to medications, that the Veteran was taking Zoloft for depression following a prostate cancer diagnosis. It was noted that the Veteran had a Vietnam War injury in the lower leg with fragments of metal left in. Diagnoses were not provided.

The Board observes that the Veteran served in Vietnam from July 1966 to January 1967 and from March 1967 to August 1967. The Veteran has specifically stated that he was exposed to rocket and mortar attacks on frequent occasions during his time in Vietnam. He also reported that he served in Da Nang, Ahn Hoa, and Dong Ha. His service personnel records indicate that he participated in counter-insurgency operations in the Republic of Vietnam with "III MAF" and that he participated in Operation Prairie, Phase III, in the Quan Tri Province of the Republic of Vietnam. He served with various companies in the 3rd Marine Division and the 9th Marine Division in Vietnam. The Board observes that a mortar attack on one's unit may be accepted as a stressor event that could be verified and, in some cases, form the basis of a PTSD diagnosis. See Pentecost v. Principi, 16 Vet. App. 124 (2002).

The Board notes that there is no indication in the record that there has been an attempt to verify the Veteran's reported stressors through the U.S. Army and Joint Services Records Research Center (JSRRC). Therefore, the Board is of the view that an attempt to verify the Veteran's alleged stressors and to obtain relevant unit histories should be made.

Additionally, the Board observes that the December 2009 joint motion (noted above in the INTRODUCTION) indicated that the Board should make a finding whether the evidence establishes that the Veteran was a combat Veteran and, if necessary, obtain a new examination to determine whether the Veteran has PTSD, and, if so, whether it is related to service.

Consequently, the Veteran should also be afforded a VA examination with the goal of arriving at an opinion as to the etiology of any current psychiatric disorder, to include PTSD. Such an examination should be accomplished on remand. 38 C.F.R. § 3.159(c)(4).

Prior to the examinations, any outstanding records of pertinent treatment should be obtained and added to the record.

Accordingly, these issues are REMANDED for the following:

1. Ask the Veteran to identify all medical providers who have treated him for psychiatric problems since May 2008. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder.

2. Contact the Veteran and ask him to provide specific details for each stressful event he reports having occurred during service. The details should include names, dates, locations, unit affiliations, or any other identifying information that would assist in efforts to attempt to verify the occurrence of the reported events. The Veteran should be informed that the details in his response are very important to his claim.

3. Request that the U.S. Army and Joint Services Records Research Center (JSRRC), or other official sources such as the Naval Historical Center, investigate and attempt to verify the Veteran's alleged stressors, to specifically include rocket and mortar attacks while he served in Vietnam from July 1966 to January 1967 and from March 1967 to August 1967 and served in Da Nang, Ahn Hoa, and Dong Ha. JSRRC should also be asked to provide the histories of the Veteran's units during the time he was in Vietnam. If more detailed information is need for this research, the Veteran should be given and opportunity to provide it.

4. Schedule the Veteran for a VA examination by a psychiatrist to determine the nature and etiology of any current psychiatric disorder. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiner should diagnose all current psychiatric disorders. Following review of the claims file and examination of the Veteran, the examiner should provide a medical opinion, with adequate rationale, as to whether it is more likely, less likely, or at least as likely as not (50 percent probability), that any currently diagnosed psychiatric disorders are etiologically related to the Veteran's period of service. If PTSD is diagnosed the examiner should specify the stressor(s) upon which the diagnosis was based. If not, the examiner should then opine as to whether the Veteran's service-connected prostate cancer aggravated (permanently worsened beyond the natural progression) any diagnosed psychiatric disorders, and if so, the extent to which they are aggravated. Any opinions expressed by the examiner must be accompanied by a complete rationale.

5. Thereafter, review the Veteran's claims for entitlement to service connection for a psychiatric disorder, to include PTSD. If any benefit sought is denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board.

The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655.

[Continued on following page.]

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. 2007).

______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs