Citation Nr: 0123313 Decision Date: 09/25/01 Archive Date: 10/02/01 DOCKET NO. 01-05 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), with sleep disturbance and nervousness. 2. Entitlement to service connection for a respiratory disorder, to include asbestosis. ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran had active service with the U.S. Navy from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in part, denied service connection for a psychiatric disorder and a respiratory disorder. The veteran also appealed that part of the November 2000 RO decision that denied service connection for a nerve condition and a skin disorder, to include as due to exposure to herbicides. After the issuance of a statement of the case, the veteran submitted a timely substantive appeal, wherein he perfected the appeal of the issues of service connection for a sleep problem, PTSD, a nervous condition, and a breathing problem. The veteran did not perfect his appeal of the claims for service connection for a skin disorder or a nerve condition (other than a nervous disorder, which is part of his claim of service connection for a psychiatric disorder- see below). As the veteran has not submitted any statement that can reasonably be construed timely substantive appeal of these latter issues, and has not submitted any subsequent correspondence referring to a skin disorder or a nerve condition (other than a symptom of a psychiatric disorder), these claims are not in appellate status. See 38 C.F.R. § 20.302 (2000). There is no issue of timelines of a substantive appeal, as the veteran has submitted no subsequent correspondence referring to these issues. Accordingly, the portions of the November 2000 rating decision denying service connection for a skin disorder and a nerve disorder (other than a symptom of a psychiatric disorder) is final, and these matters will not be adjudicated herein. See Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993). While the RO labeled as separate issues the veteran's claims for service connection for PTSD, a nervous condition, and sleep problems, the Board has considered these issues all under a general heading of a service connection claim for an acquired psychiatric disorder. In asserting these claims, the veteran has argued that his nervousness and problems sleeping are symptoms of a psychiatric disability. Under these circumstances, the Board finds that the issue should be styled as service connection for an acquired psychiatric disorder, to include PTSD, with sleep disturbance and nervousness. The Board notes that the veteran requested and was scheduled for a Travel Board hearing at the RO in August 2001, but that he failed to report for that hearing. As he has not provided cause for his failure to appear or requested another hearing, the veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d)(e) (2000). The issue of service connection for a respiratory disorder, to include asbestosis, is addressed in the remand appended to this decision. FINDINGS OF FACT 1. All evidence necessary for a fair and equitable disposition of the appeal has been requested or obtained, the veteran has been advised of the evidence necessary to substantiate his claim, and there remains no evidence identified by the veteran which is uncollected for review. 2. There is no competent evidence of a diagnosis of PTSD at any time during or after service, and there is no competent evidence of a nexus between depression or dysthymia, which were first shown approximately 25 years after service, and any incident of active duty. CONCLUSION OF LAW An acquired psychiatric disorder, including PTSD, with sleep problems and nervousness, was not incurred or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.304 (2000); 66 Fed. Reg. 45620-45632 (August 29, 2001) (to be codified as amended to 38 C.F.R. § 3.159); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial Matter: On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)) became law. VA has also revised the provisions of 38 C.F.R. § 3.159 effective November 9, 2000, in view of the new statutory changes. See 66 Fed. Reg. 45620-45632 (August 29, 2001). It eliminates the requirement that a claimant submit evidence of a well-grounded claim, and redefined the obligations of VA with respect to the duty to assist, to include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board finds that the RO fulfilled its duty to assist the veteran as required in the VCAA and implementing regulations. The RO notified the veteran of what evidence was needed to substantiate his claim and offered to assist him in obtaining any relevant evidence. All known available private and VA medical records have been collected for review. The veteran has not identified any pertinent evidence that has not already been collected for review by VA. The Board notes that VCAA's duty to assist provides that VA shall treat an examination or medical opinion as being necessary to make a decision if the evidence of record before VA, taking into consideration all information and lay or medical evidence (including statements of the claimant) (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, and (2) indicates that the disability or symptoms may be associated with the claimant's active military service. While the Board finds that there is competent evidence of psychiatric diagnoses, such not demonstrated until approximately 25 years after the veteran was separated from service. A significant amount of clinical evidence on file, including records of hospitalizations, fails to identify or even suggest that a psychiatric disorder is causally linked in any way to service. Under such circumstances, the Board finds that there is no duty to obtain a nexus examination and opinion. The Board has also considered the veteran's contentions regarding his alleged in-service stressors but, in the absence of any competent evidence of a diagnosis of PTSD, there is no further duty to provide stressor development. Thus, no further assistance to the veteran is required to comply with the duty to assist found in the VCAA and its implementing regulations. Law and Regulation: Service connection may be established for disabilities resulting from disease or injury incurred in line of duty during active military service. 38 U.S.C.A. § 1110. Service connection may also be granted for certain specified diseases, including psychoses, which became manifest to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) Service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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 this combat, in the absence of clear and convincing evidence to the contrary, and provided that 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). Acquired Psychiatric Disorder, Including PTSD: Service personnel records do not show that the veteran had combat service. The service medical records contain no complaint, finding, treatment or diagnosis for any form of acquired psychiatric disorder or for symptoms of nervousness or sleeplessness. There is a notation that the veteran was provided a service physical examination in August 1969 and that the result was that he was physically qualified for transfer. The physical examination for service separation in May 1971 noted that the veteran was psychiatrically normal. The veteran's initial series of service connection claims, received in May 1971, did not include a claim regarding a psychiatric disability. In May 1995, the veteran was admitted to a private medical facility with an admission diagnosis of severe alcohol dependence. After three years of sobriety, he had recently begun drinking again and was seeking assistance in quitting. He was provided a psychological evaluation, including a series of psychological tests. He had graduated high school, attended university for one year, and had received training as a locksmith. He was currently self-employed as a locksmith but had in the past worked in security and for nine years with Texaco. He had also worked as a cook. It was noted that he had previously been diagnosed with gastritis and hypertension, "which have been aggravated by his chemical use." He denied sustaining any head injuries or experiencing any loss of consciousness, seizures, dizziness, or frequent headaches. He reported that he initially had contact with a mental health professional after service, one time only, and that all who served were required to undergo such evaluation. He denied any subjective feelings of depression, suicidal ideation, or difficulty with his temper. He acknowledged easy irritability related to his wife only. He indicated that he generally fell asleep quickly but estimated that he might need as much as 30 minutes to fall asleep at times. He admitted that he sometimes awoke three times nightly and had difficulty returning to sleep. He denied visual or auditory hallucinations, difficulty concentrating, or problems understanding people. The veteran's MMPI-2 "fake bad" scale was elevated more than four standard deviations above the norm. Intellectual functioning tests placed the veteran in the borderline range of intellectual functioning. It was noted that organic difficulties which the veteran experienced appeared related to his borderline intellectual functioning, which was related to fairly diffuse, borderline impairment. Other testing was indicative of substance abuse problems. Personality evaluation indicated clinical depression. Other testing revealed a strong sense of emotional deprivation, perhaps related to problems with his ex-wife or social isolation. A marital distress scale score was elevated. The diagnostic impressions from this detailed evaluation for Axis I were alcohol dependence, major depressive disorder, and dysthymic disorder. Borderline intellectual functioning and prominent use of projection and denial were noted for Axis II. Psychosocial stressors were noted as conflict with ex- wife. These diagnoses were repeated in the discharge summary created from the veteran's seven-day admission to this private hospital. A social history taken during the veteran's May 1995 private hospitalization noted a good ability and likelihood to participate in a mental health program. He also showed a good ability to participate with peers and appeared to be very congenial and able to get along with others. There are on file a considerable amount of VA outpatient treatment records from 1994 through 2000. While these records reflect treatment for various physical problems, there is no complaint, finding, treatment or diagnosis for any form of acquired psychiatric disorder. There is also on file records of the veteran's treatment at a private hospital in May 1999 for physical problems involving respiratory disability; however, these records also contain no complaint, finding, treatment or diagnosis for an acquired psychiatric disorder. A clear preponderance of the evidence of record is against the veteran's claim for service connection for an acquired psychiatric disorder, with symptoms of nervousness and sleeplessness, including PTSD. The veteran had no psychiatric problems identified at any time during or for many years after active military service. While the veteran has made a claim for service connection for PTSD and submitted a statement of stressors, the fact remains that there is a complete absence of any clinical diagnosis of PTSD on file. The veteran is not competent to provide his own diagnosis of PTSD. The veteran is not shown to have served in combat with the enemy so any stressors identified in conjunction with a clinical diagnosis of PTSD would have to be verified by independent means. Absent a competent diagnosis, there is no need to inquire into the validity of the veteran's claimed stressors which he relates to military service. In 1995, approximately 24 years after service separation, the veteran received diagnoses of alcohol dependence, major depressive disorder, and dysthymic disorder. There was no diagnosis of PTSD or other anxiety disorder. Additionally, the first competent clinical diagnoses of major depression and/or dysthymia, many years after service, are not related to any incident, injury or disease of active service. Fairly extensive clinical records clearly relate these findings to events more current in the veteran's life. Alcohol dependence, family problems, and other physical problems are noted as driving features in the veteran's psychiatric diagnoses. No competent evidence associated with this admission or any other evidence on file shows or even tends to show that any psychiatric disorder is in any way causally related to any incident of military service some 24 years earlier. In the absence of any evidence of an acquired psychiatric disorder being related to service, the veteran's claim for service connection for an acquired psychiatric disorder with symptoms of sleeplessness and nervousness must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, with nervousness and sleep disturbance, is denied. REMAND As noted above, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)) became law. VA has also revised the provisions of 38 C.F.R. § 3.159 effective November 9, 2000, in view of the new statutory changes. See 66 Fed. Reg. 45620-45632 (August 29, 2001). In addition to eliminating the requirement that a claimant submit evidence of a well-grounded claim, the new law redefines the obligations of VA with respect to the duty to assist, to include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. With respect to the claim of service connection for a respiratory disorder, to include asbestosis, the Board finds that the RO has not fulfilled its duty to assist the veteran as required in the VCAA and implementing regulations. The relevant evidence is summarized below. The service medical records contain show no respiratory disease. A June 1969 chest X-ray was normal. An August 1969 physical examination found the veteran qualified for transfer. The physical examination for separation in May 1971, including a chest X-ray, noted that the lungs and chest were normal. VA outpatient treatment records commencing in September 1994 reveal a chest X-ray with the impression of borderline cardiomegaly and nonspecific fibrosis. A chest X-ray from June 1996 was interpreted as being normal. An X-ray from June 1996 revealed a collapse of the right lower lobe with streaky infiltrate of the left base. An X-ray study from July 1996 resulted in an impression of right lung base discoid atelectasis, cannot rule out minimal pneumonia. An X-ray study from August 1997 resulted in an impression of nonspecific fibrosis. The veteran was also provided with smoking cessation courses. In July 1998, there was an assessment of bronchitis. In April 2000, the diagnoses included asthma. In May 1999, 28 years after the veteran was separated from service, there are records of the veteran's private admission to a hospital with a chief complaint of shortness of breath. It was noted that he had a significant tobacco smoking history and that he was felt to have possible chronic obstructive pulmonary disease (COPD). Review of previous X- ray studies from 1998 and 1999 revealed evidence of an older granulomatous disease in the right midlung field. The impression was that the veteran had significant dyspnea associated with audible wheezing consisting of possible reactive airway disease and/or COPD. Pulmonary function studies were performed during this hospitalization and the interpretation was that the spirometry was within normal limits, although a mild obstructive ventilatory defect could not be ruled out. The veteran contends, in part, that he has asbestosis due to asbestos exposure during his Naval service. There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. However, in 1988 a VA Circular on asbestos-related diseases set forth guidelines for review of asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual M21-1, part VI, para. 7.21 (January 31, 1997) (M21-1). Also, a recent opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and concluded, in part, that medical nexus evidence is needed to establish a well-grounded claim based on alleged in-service asbestos exposure. See VAOPGCPREC 4-00. The need for evidence of a nexus continues to apply despite the elimination of the well-grounded claim requirement. The United States Court of Veterans Appeals (now known as the United States Court of Appeals for Veterans Claims) (Court) has held that, as a general rule, to establish service connection for a disability, the evidence must show (1) the existence of a current disability; (2) the existence of a disease or injury in service and, (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service department medical records indicate that the veteran served in the U. S. Navy from May 1969 to May 1971. He alleges that he was exposed to asbestos while aboard ship, to include the USS Washington. In McGinty, supra, the veteran was competent to testify as to the facts of his asbestos exposure though his testimony as to the cause of the disease was not competent evidence of causation because the determination of the cause of a disease is a medical matter. Here, the veteran has not provided specific information regarding his alleged in- service asbestos exposure and the service personnel records are incomplete, to include information regarding the nature of the veteran's duties while aboard ship. Additional evidentiary development is required to determine the likelihood of exposure to asbestos during the veteran's period of service from May 1969 to May 1971. Thereafter, the RO must analyze the veteran's claim of entitlement to service connection for a respiratory disorder, to include asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). A number of medical principles are included. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2) (January 31, 1997). An asbestos- related disease can develop from brief exposure to asbestos. Id. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, 7.21(c). In addition to the requirements of the VCAA, in asbestos- related claims VA must follow development procedures applicable specifically to such claims. The Court held in Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997), that the Board should have specifically referenced the DVB Circular and discussed compliance with its claim-development procedures. In accordance with the specified procedures, the RO must determine whether military records demonstrate evidence of asbestos exposure during service, develop the evidence as to whether there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). Under the VA guidelines, the radiographic changes that would be indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum. M21-1, Part VI, 7.21(a)(1), p. 7-IV-3 (January 31, 1997). As noted above, while a specific diagnosis of asbestosis is not apparent in the record, there is X-ray evidence in recent years of nonspecific fibrosis. The Board finds that a pulmonary examination should be conducted. It is necessary that the physician review the veteran's claims file, including the service medical records, and provide an opinion as to the likelihood that any current asbestos-related disease that may be present is related to the veteran's military service rather than to civilian exposure. Santiago v. Brown, 5 Vet. App. 288, 292 (1993). The physician must also opine whether it at least as likely as not that any other respiratory disorder that may be present began during or as the result of some incident of service. If a determination is not possible, that should also be stated. In view of the foregoing, this case is REMANDED for the following actions: 1. The RO contact the veteran and request that he provide all relevant information (name of ship(s) he served on, nature of his duties, etc.) pertaining to his alleged exposure to asbestos during service. The RO should then obtain the veteran's service personnel records, ship logs, and any other relevant documents for the purpose of determining the nature of his duties and the likelihood of exposure to asbestos during the veteran's period of service from May 1969 to May 1971. 2. The veteran should also be given an additional opportunity to identify all medical care providers, both Government and private, including physicians and institutions (clinics or hospitals) from which he has received examination or treatment for asbestos-related or other respiratory disease. Upon receipt of all necessary authorizations, the RO should obtain copies of all available documentation from the medical providers identified by the veteran. 3. Upon completion of the foregoing, the RO should schedule the veteran for a VA pulmonary examination for the purpose of determining the nature and etiology of any respiratory disorders that may be present. All indicated tests and studies should be performed, and all clinical findings should be reported in detail. It is mandatory that the claims folder be provided to the examiner for review in conjunction with the examination, together with a copy of this remand. The examiner must state in the examination report whether the claims file was reviewed. On the basis of current examination findings, review of the file (including all radiographic reports), and any additional information obtained from the veteran, the examiner should respond to the following questions posed by the Board. The specific questions are as follows: a. Does the evidence of record, including findings on current radiographic studies, demonstrate the presence of asbestos-related pulmonary disease? b. If asbestosis or asbestos-related lung disease is found, is it more likely than not, as likely as not, or less likely than not that the asbestos exposure during the veteran's Naval service (assuming the accuracy of this history) would have been sufficient by itself to cause the current asbestos- related disease? Is it at least as likely as not that any other respiratory disorder that may be present began during or as the result of some incident of service? 4. The RO should review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act, codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107, are fully complied with and satisfied. 5. After completion of the foregoing, the RO should readjudicate the issue of service connection for a respiratory disorder, to include asbestosis. If the claim remains denied, the veteran and his representative should be provided with a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the appeal. An appropriate period of time should be allowed for response. Thereafter, the claim should be returned to the Board for further review on appeal, if in order. No action is required of the veteran until he receives further notice. The purpose of this remand is to obtain additional information. The Board does not intimate any factual or legal conclusions as to the outcome ultimately warranted in this appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. R. F. WILLIAMS Member, Board of Veterans' Appeals