Citation Nr: 0312584 Decision Date: 06/12/03 Archive Date: 06/16/03 DOCKET NO. 00-07 175A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a lung disorder, to include as due to exposure to asbestos. 2. Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty from February 1969 to October 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1999 rating decision of the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). Issues on appeal The appeal presently before the Board has been perfected only as to the service connection issues listed on the title page. The Board construes the appellant's Statement in Support of Claim (VA Form 21-4138) dated in April 2000 as a valid substantive appeal for these two issues. This statement was timely filed within one year of notification of the September 1999 rating decision. In this statement, the appellant clearly indicated that he desired to appeal the PTSD claim, but he also expressed his desire to "continue my appeal for service-connected conditions," which the Board construes as fairly encompassing the lung disorder claim. In the Board's view, the appellant's statement of April 2000, when read together with his later-filed Form 9 substantive appeal of January 2001, wherein he clearly indicated that his appeal was limited to the lung disorder and PTSD claims, supports the Board's determination here as to which issues are on appeal. As for the other two claims adjudicated by the RO in the September 1999 rating decision, increased ratings for bilateral hearing loss/tinnitus and stomach disabilities. Even if the Board liberally construes the April 2000 statement as to the appellant's desire to "continue my appeal for service-connected conditions" to include these two issues, it is clear from the Form 9 that he then filed in January 2001 that he did not intend to pursue appellate review by the Board of these claims. In other words, the January 2001 Form 9 effectively withdrew any substantive appeal he had previously filed on these claims. These issues, therefore, are not presently before the Board. REMAND Notwithstanding the efforts undertaken by the RO to prepare this case for appellate review, the Board finds that a remand is in order. Service connection for lung disorder Additional development is required in this case to fully comply with duty to assist under the Veterans Claims Assistance Act of 2000, Pub. L. 106-475 (the VCAA) and implementing regulations adopted by VA in August 2001, which are effective from date of the enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.159 and 3.326(a)). This claim was pending as of the date of passage of this law, November 9, 2000, and therefore, full compliance with the VCAA is required. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (where law/regulation changes after claim has been filed, but before administrative or judicial appeal process has concluded, version most favorable to claimant should apply). The VCAA provides that in claims for disability compensation, the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(1) & (d)(2) (West 2002). In this case, the RO obtained the appellant's service medical and personnel records, which show that he served aboard a Navy destroyer, but these records are negative for notations of asbestos exposure. Nevertheless, there is no indication in the record that steps were taken by the RO to determine whether he was exposed to asbestos, which is required pursuant to VA guidelines, as further discussed below. There also is no indication in the record that the RO obtained the necessary medical-opinion evidence to properly address this claim; of record is the report of a VA pulmonary examination conducted in September 2001, which noted the examiner's diagnosis of chronic obstructive pulmonary disease, but which did not include the examiner's analysis of whether his pulmonary condition was related to possible in- service exposure to asbestos. The Board notes further with respect to this claim that there is no specific statutory or regulatory criteria governing claims for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). However, as alluded to above, VA has provided very specific guidelines for the adjudication of asbestos exposure claims in the ADJUDICATION PROCEDURE MANUAL (the M21-1), Parts III (para. 5.13) and VI (para. 7.21). The General Counsel has held that these guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. See VAOPGCPREC 4-2000 (April 13, 2000). In part, these guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1, Part VI, Par. 7.21(b). This information provides that inhalation of asbestos fibers can produce pleural effusion, fibrosis and pleural plaques. The latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). On remand, the RO should ensure that this claim is fully developed in accordance with the guidelines cited above. Service connection for PTSD The Board will also remand the appellant's claim of service connection for PTSD to ensure full and complete compliance with the enhanced duty-to-notify/duty-to-assist provisions enacted by VCAA, as this claim was pending as of the date of passage of the VCAA as well. Karnas, 1 Vet. App. 308, 313 (1991). The appellant asserts that he has PTSD due to witnessing and/or experiencing a number of stressors, a few of which are related to combat service (service aboard a riverboat in Vietnam in charge of rescuing wounded servicemen and firing weapons at enemy positions from his ship), but most of which are related to stressors of a non-combat origin (duties as an ambulance driver and his participation in race riots between black and white servicemen at Naval bases in Pearl Harbor and Coronado, California). His discharge record indicates that his military occupational specialty (MOS) was an engine mechanic, and that his medals include the Vietnam Service Medal with Device. His personnel records indicate that his ship (USS Fechteler) did a wartime cruise in the waters off Vietnam between February 1970 and July 1970. The record shows that the U. S. Center for Research of Unit Records could not verify any of the appellant's stressors based on the information provided by the RO. It appears that the appellant's stressor accounts were too vague for verification by official service department records. However, in order to comply with applicable regulation and manual provisions, as well as the precedent decisions of the Court, additional development is required, to include stressor-verification development and the scheduling of the appellant for a VA examination to determine whether he has a DSM-IV diagnosis of PTSD based on his reported stressor(s) and a complete review of all the evidence in the claims file. The Board notes that the regulation governing the award of service connection for PTSD, 38 C.F.R. § 3.304(f), was amended in June 1999. See 64 Fed. Reg. 32807 (June 18, 1999). The new version of the regulation is effective from March 7, 1997, and hence, the revised version must be considered, which has not been done in this case, to include when the RO readjudicated the claim by supplemental statement of the case in May 2002. Of significance here is the change to section 3.304(f) which eliminated the requirement for a "clear diagnosis" of PTSD and replaced it with the criteria that an award of service connection depended on whether there was medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which the Board observes is a reference to a diagnosis made on the criteria set forth in the DSM-IV. In its decisions issued with this appeal, the RO applied the now-deleted "clear diagnosis" standard. As additional evidentiary development will be required, to include stressor-verification development, the Board believes that the RO should have the appellant re-examined by VA in order to determine whether he has a DSM-IV diagnosis of PTSD based on his reported stressors and a complete review of all the evidence in the claims file. In the Board's view, the appellate record does not at this time contain sufficient medical evidence to decide this claim. See 38 U.S.C.A. § 5103A(d)(1) and (2), as amended by the VCAA. The Board notes as well that 38 C.F.R. § 3.304(f) was amended for a second time in March 2002, again, during the pendency of this appeal. See 67 Fed. Reg. 10332 (Mar. 7, 2002). This regulation is specifically germane to the development and adjudication of this claim as the revision involves the standard of proof and the type of evidence necessary to substantiate a claim of service connection for PTSD based on personal assault. It also specifically provides that VA will not deny this type of PTSD claim without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(3) (2002). The record shows that the RO sent the appellant PTSD-personal assault development letters, but these letters predate the revised section 3.304(f)(3), and although these letters set forth many of the same requirements contemplated by the revised regulation, they do not specifically advise him in the manner described by this new regulation. Given the other deficiencies described above with regard to procedural due process and evidentiary development of this case, the Board finds that full and complete compliance with the amended section 3.304(f)(3) is required. Because the above-cited regulations changed during the pendency of this appeal, the appellant is entitled to the application of the versions of the regulations that are more favorable to him. Karnas, 1 Vet. App. 308 (1991). In this case, the appellant has not been notified of the changes in the regulations described above and has not been afforded any opportunity to present relevant argument. The Board also notes that precedent holdings of the Court provide specific guidance for the adjudication of PTSD claims based on non-combat stressors, at issue in this case. See Patton v. West, 12 Vet. App. 272 (1999) (verification of non- combat stressors); Suozzi v. Brown, 10 Vet. App. 307 (1997) (sufficiency of information to verify stressors); Cohen v. Brown, 10 Vet. App. 128 (1997) and Moreau v. Brown, 9 Vet. App. 389 (1996). In the Patton case, the Court found error in the Board's decision because it did not discuss the special evidentiary procedures for the development of PTSD claims based on non-combat stressors as established by VA guidelines. Patton, 12 Vet. App. 272 (1999). Where, as in this case, the claimant did not serve in combat and the claimed stressor is not related to combat, lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Id. citing West (Carelton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In these types of cases, special development procedures for non-combat stressors are required pursuant to the M21-1 in order to provide the veteran-claimant every opportunity to verify the occurrence of the claimed stressor. See M21-1, Part III, Section 5.14 (Mar. 2002). In light of the Court's precedent holdings, the Board finds it necessary to address the matter of whether there is sufficient corroboration of the appellant's stressor, in particular, the incidents connected to the alleged race riots, upon completion of the special development procedures under M21-1, Part III, Sec. 5.14, and upon completion thereof, further medical development to determine whether any "markers" or "behavioral changes" that occurred at or close in time to the alleged incidents could possibly indicate the occurrence of a claimed stressor, as described in detail in the M21-1. The Board is of course aware that the appellant has been less than cooperative in the development of his PTSD claim (failure to respond to development letters). However, the procedural due process requirements imposed by the VCAA as well as by the regulation changes and Court decisions dealing with PTSD-personal assault cases sets forth specific and unambiguous development standards that must be met before the Board issues a final decision on the merits. Finally, the Board notes that additional medical records relevant to the PTSD claim, termination summaries and outpatient consultation reports dated in 1999 and 2000 from the Range Mental Health Center, which had not been previously considered by the RO, were submitted by the appellant in February 2003. The appellant did not waive his right to have these records considered by the Board without referral to the RO for initial consideration, and therefore, on remand, the RO must consider these reports in conjunction with its readjudication of the claim. Accordingly, although the Board sincerely regrets the additional delay, the case is REMANDED for the following: 1. The RO should contact the appellant and inform him that he may submit any corroborating lay and/or medical evidence he may have pertaining to treatment for his lung disorder and PTSD symptoms. The RO should assist the appellant in obtaining such evidence, as appropriate. If he identifies medical treatment and provides specific dates, all VA records identified in this manner that have not already been associated with the claims file should be obtained pursuant to established procedures. With regard to any private medical treatment, if identified as such, after first providing him appropriate releases to obtain such records (VA Form 21-4142), attempts to secure copies of records pertaining to any indicated private physicians and/or facilities should be undertaken. The RO should proceed with alternative search efforts for any medical records that may have been transferred to another medical facility or retired. All records received in response to the request should be associated with the claims folder. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. 2. With respect to the above, all attempts to obtain records which are ultimately not obtained should be documented, and in accordance with the VCAA and implementing regulations published in August 2001, the RO should notify the appellant of the records it was unable to obtain, briefly explain the efforts made to obtain such records, and describe any further action that the RO will take to obtain such records. For any VA or other Federal department or agency records, the RO should continue its efforts to obtain any records while the case is under development on remand until it becomes reasonably certain that such records cannot be obtained because they do not exist or until it becomes reasonably certain that further efforts to obtain records from the such sources would be futile. 3. In addition, the RO should contact the appellant and inform him that may submit any other corroborating evidence he may have pertaining to alleged race riot incidents he claims to have experienced during service. The RO should inform him that he may submit any other evidence to verify his alleged stressors from military as well as nonmilitary sources. The RO should assist the appellant in obtaining such evidence, as appropriate. In connection with this development, the RO should ensure that all appropriate special development procedures mandated by M21-1, Section 5.14 and 38 C.F.R. § 3.304(f)(3) for verification of a non-combat stressor are fully accomplished and documented in the claims folder, to include issuance of the special development letter to the appellant advising him of the steps necessary to verify his non-combat stressors. 4. Following the above, the RO must make a specific factual determination, based upon the complete record, with respect to whether one or more of the appellant's stressors occurred as he claims. In rendering this determination, the attention of the RO is directed to the law cited in the discussion above. If official service records or alternative records discussed in M21-1, Part III, Sec. 5.14 corroborate the appellant's allegations, the RO should specify that information. The RO should also indicate whether any behavioral changes that occurred at or close in time to the alleged incidents could possibly indicate the occurrence of a stressor and if so should decide whether this evidence needs interpretation by a clinician. 5. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. A psychiatrist who has not previously examined, evaluated or treated the appellant, if feasible, should conduct this examination. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether the alleged stressor found to be established by the record was sufficient to produce PTSD; and, (2) whether there is a link between the current PTSD-symptomatology and the in-service stressor found to be established by the record and found sufficient to produce PTSD by the examiner. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged race riot incidents could possibly indicate the occurrence of an alleged in-service stressor. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 6. The appellant should also be afforded a VA medical examination by an appropriate specialist, to determine whether he currently has an asbestos- related lung disease as a result of possible in-service asbestos exposure. The claims folder must be available to and reviewed by the examiner in conjunction with the examination. All indicated tests or studies should be completed and the results reviewed by the examiner prior to the final opinion. Specifically, the examiner should be asked to provide an opinion as to whether it is at least as likely as not the appellant currently has an asbestos- related lung disease due to exposure during active duty. In the opinion, the examiner should consider all relevant factors contained in M21-1, Part VI, Para. 7.21. A complete rationale for all conclusions should be provided. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate. 7. The appellant must be given adequate notice of any requested examination, which includes advising him of the consequences of failure to report for a scheduled examination. If he fails to report for an examination, this fact should be documented in the claims folder. A copy of all notifications must be associated with the claims folder. 8. After completion of the above, the RO should readjudicate the claims on appeal with consideration given to all of the evidence of record, including the additional Range Mental Health clinic records submitted in February 2003 as well as any additional medical evidence obtained by the RO pursuant to this REMAND. The readjudication of these claims must be on the merits and with full compliance with all relevant duty- to-notify and duty-to-assist provisions of the VCAA, as noted above. The readjudication of the lung disorder claim must be in accord with the M21-1 manual provisions and OGC opinion discussed above. Further, the readjudication of the PTSD claim must be in accord with the revised 38 C.F.R. § 3.304(f), as amended in June 1999 and March 2002, which include the appropriate notice procedures set forth under the revised section § 3.304(f)(3) discussed above in this REMAND. If any benefits sought on appeal remain denied, the RO should provide the appellant and his representative an adequate supplemental statement of the case. The RO should then allow the appellant an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice is obtained. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development directed by the RO, is necessary for a comprehensive and correct adjudication of his claims. 38 C.F.R. § 3.655(b). The veteran's cooperation in the RO's efforts is both critical and appreciated. This is especially true with respect to his PTSD claim. The veteran is advised that he must respond to the RO's requests for specific information on his alleged stressors (to include dates within 60 days, places, names of individuals involved, etc.) or efforts to verify his stressors may not be successful. The veteran is further advised that his failure to report for any scheduled examinations without good cause may result in a claim being considered on the evidence now of record or denied. This case 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 2002) (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. _________________________________________________ MICHELLE L. KANE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2002).