Citation Nr: 0701164 Decision Date: 01/12/07 Archive Date: 01/24/07 DOCKET NO. 95-37 406 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD) (claimed as a nervous disorder, to include anxiety, depression, and emotional disorder). 2. Entitlement to service connection for a respiratory disability, to include emphysema, due to asbestos exposure, toxic fumes, or radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran served on active duty from May 1961 to January 1981. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an April 1995 decision that, in part, denied service connection for PTSD, anxiety, depression, emotional disorders, and emphysema. The veteran timely appealed. In October 1997 and October 1999, the Board remanded the matters for additional development. In August 2001, the veteran testified during a hearing before RO personnel. In July 2004, the Board again remanded the matters for additional development. FINDINGS OF FACT 1. The veteran's claimed stressor involving two submarine incidents is supported by credible evidence. 2. It is at least as likely as not that current PTSD is related to the supported stressor. 3. There is no competent evidence of a link between a current respiratory disability, to include emphysema, and active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2006). 2. The criteria for service connection for a respiratory disability, to include emphysema, due to asbestos exposure, toxic fumes, or radiation exposure are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). Through October 2002 and July 2003 letters, and a July 2006 supplemental statement of the case (SSOC), the RO or VA's Appeals Management Center (AMC) notified the veteran of elements of service connection, and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. The letters requested that he provide the names and addresses of medical providers, the time frame covered by the records, and the condition for which he was treated, and notified him that VA would request such records on his behalf if he signed a release authorizing it to request them. Each of the letters asked him if he had any additional evidence to submit, and thereby put him on notice to submit information or evidence in his possession. Notice to a claimant pursuant to the VCAA should be provided prior to the initial adverse decision. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The documents meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. The timing deficiency was remedied by the fact that the veteran's claims were re-adjudicated by the agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The July 2006 SSOC provided the veteran with notice as to how VA assigns a disability rating and an effective date for any award of increased benefits on appeal for service-connected disabilities. Although this document was returned by the post office as undelivered, the Board finds no prejudice to the veteran in proceeding with a denial of service connection for a respiratory disorder, to include emphysema, as concluded below, because any question as to the appropriate disability rating and effective date to be assigned is rendered moot. He had previously received all required notice regarding service connection. The claim denied obviously does not entail the setting of a new disability rating or an effective date. For any claim that is granted, a disability rating and effective dates will be set in future decisions by the RO. Accordingly, the veteran is not harmed by any defect with regard to these elements of the notice. The Board finds that there is no indication that any additional action is needed to comply with the duty to assist the veteran. The RO or AMC has obtained copies of the veteran's service medical records and outpatient treatment records, and attempts have been made to notify the veteran of scheduled examinations. The July 2006 SSOC also informed him that his claims could be denied if he failed to appear for the scheduled examinations. The veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Because all identified records have been obtained; the veteran has been given notice of and opportunity to submit, evidence needed to substantiate the claims; and attempts have been made to notify the veteran of scheduled examinations, and the possible consequences regarding failure to report to scheduled examinations; further assistance would not be reasonably likely to substantiate the claims, and further notice or assistance are not required. 38 U.S.C.A. § 5103A. In this regard the veteran has not furnished VA with a current address; thus, further efforts to afford him an examination would likely be fruitless. II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Service medical records at entry in May 1961 show no defects, and the veteran is presumed to have been sound condition at entry. The Board's July 2004 remand required examinations for purposes of determining whether any current psychiatric disability, to include PTSD, was incurred in or aggravated during service; and whether the veteran had a current respiratory disability, to include emphysema; and if so, whether any current respiratory disability was related to active service-to include asbestos exposure, radiation exposure, and tobacco smoke. While the veteran has undergone VA PTSD examinations in August 2002 and in April 2003, the claims file does not contain sufficient information to grant service connection for other psychiatric disabilities. Moreover, there is no VA respiratory examination of record. Following the Board's July 2004 remand, a VA medical center attempted several times to schedule the veteran for examinations. The medical center reported that the veteran did not show for any examinations. A January 2006 letter mailed to the veteran's last known address, in an effort to reschedule the veteran for examinations, was returned to the Appeals Management Center. Subsequent correspondence, dated in July 2006 and in October 2006, was also returned as undeliverable by the U.S. Post Office. The duty to assist the veteran in the development of evidence pertinent to his claims is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In an original claim, where a claimant fails to report without good cause for a necessary examination, the claim will be decided on the basis of the evidence of record. 38 C.F.R. § 3.655(a), (b). The veteran had a duty to keep VA apprised of his address. Jones (Raymond) v. West, 12 Vet. App. 98 (1998); Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (describing duty of veteran to keep VA apprised of his whereabouts). The record does not reflect that the veteran had good cause for failing to report to examinations, or to keep VA apprised of his whereabouts. Under these circumstances, the veteran's claims will be decided on the basis of the evidence of record. A. PTSD Service connection for PTSD requires a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (1994) (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. 3.304(f). Records from the Social Security Administration show that the veteran was found to be disabled primarily by PTSD, which began in August 1991. During an April 2003 VA examination, the veteran reported as his stressor life in submarines, describing two incidents. First, he described an explosion aboard a ship he was on; and second, he reported having to go and search for another submarine that presumably was attacked, got lost, and sank. The veteran reportedly felt anxious after these incidents, and stayed up at night. Other crew members became very emotional and were sent for medical treatment; one committed suicide. After his service discharge, the veteran reportedly worked in a series of jobs, but gradually became more and more anxious; he was unable to perform his duties as expected, becoming frustrated and upset. The examiner noted the veteran's current symptoms as including feelings of anxiousness, self-isolating, and depression. The diagnosis was history of PTSD, currently manifested in mild degree. The April 2003 examiner opined that the veteran's anxiety and depressive symptoms increased over the years, partly due to his long history of substance/alcohol abuse, and partly stemming from his obsessive compulsive nature and personality. The examiner also opined that there may be some direct connection with the traumatic experience of his dysfunctional current state, at least as a part of his present condition, if not the whole thing. This condition has resulted in many other incidences, stressful situations in personal life as well as service life. The service personnel records include citations to the unit histories of the U.S.S. Shark (SSN-591) and the U.S.S. Simon Bolivar (SSBN641), revealing that the ships completed numerous patrols and conducted anti-submarine warfare exercises during the veteran's tours of duty. The U.S.S. Scorpion was declared missing and presumably lost on June 6, 1968. Records received in May 2001 also reflect that the U.S.S. Shark (SSN-591) suffered damage to the forward oxygen system in July 1965, necessitating repairs at Charleston, South Carolina. In August 2001, the veteran testified that he was aboard submarines from 1963 to 1974, and that he got a commission and worked on submarines until 1979. The veteran described an explosion involving the U.S.S. Shark (SSN-591) that occurred while crew members were charging oxygen from a truck on the pier. When the evidence does not indicate that the veteran engaged in combat, the claimed non-combat stressor must be supported by credible supporting evidence. The Board finds that these service personnel records provide credible supporting evidence of a stressor which was the basis, in part, of a diagnosis of PTSD. Credible supporting evidence need not corroborate every detail of a claimed stressor. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). The records need only imply the veteran's participation (e.g., to not controvert the veteran's assertion that he was present when the events the records establish that his unit experienced occurred). See Pentecost v. Principi, 16 Vet. App. 124, 128-129 (2002). In this case, however, the evidence is unclear as to whether there is a nexus between the current disability and service. The April 2003 examiner appeared to relate the veteran's current disability to stressors both during service and after service. The veteran's clinical psychologist, in June 1998, opined that the veteran's PTSD symptoms were directly related to his duty on a submarine, as well as the [sinking of] the U.S.S. Scorpion. There is no contrary opinion of record. Under these circumstances, the Board finds the evidence at least in relative equipoise on the question of nexus. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. Accordingly, service connection is warranted for PTSD. In reaching this decision, the Board has extended the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107. B. Respiratory Disability Service personnel records show that the veteran served aboard nuclear submarines, and was exposed to ionizing radiation. His total exposure during his naval service was 4.407 rem gamma and x-ray. Records also show probable exposure to asbestos during his naval service. The veteran's post-service medical records reflect a diagnosis of chronic obstructive pulmonary disease. In August 2001, the veteran testified that he was involved in removing the asbestos insulation, and was exposed to toxic fumes from products used to clean electrical components. The veteran's testimony is competent evidence, via first-hand knowledge, that he was exposed to asbestos and toxic fumes, although not of disability. See Bostain v. West, 11 Vet. App. 11 Vet. App. 124, 127 (1998). What is missing, in this case, is competent evidence linking a current respiratory disability with injury or disease in service-to include exposure to asbestos, toxic fumes, and ionizing radiation. Because there is no competent evidence linking a currently shown disability to service, the weight of the evidence is against the claim. As the weight of the competent evidence is against the claim, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Hence, service connection for a respiratory disability, to include emphysema, is not warranted. ORDER Service connection for PTSD is granted. Service connection for a respiratory disability, to include emphysema, due to asbestos exposure, toxic fumes, or radiation exposure is denied. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs