Citation Nr: 0711322 Decision Date: 04/17/07 Archive Date: 05/01/07 DOCKET NO. 04-20 625 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for congestive obstructive pulmonary disease (COPD). 2. Entitlement to service connection for arthritis to include as secondary to service-connected post-traumatic stress disorder (PTSD). 3. Entitlement to an initial compensable rating for service- connected irritable bowel syndrome (IBS); reflux disease aggravated by the service-connected PTSD. 4. Entitlement to an evaluation in excess of 70 percent for service-connected PTSD. 5. Entitlement to an evaluation in excess of 10 percent for service-connected bilateral hearing loss. 6. Entitlement to an effective date earlier than June 21, 2006 for the grant of a total rating based on individual unemployability (TDIU) REPRESENTATION Veteran represented by: J.S. Berry, Esq. ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran served on active duty from August 1952 to October 1963, from December 1963 to December 1967, and from December 1970 to September 1975. This matter comes to the Board of Veterans' Appeals (Board) from February 2004, May 2005, and July 2006 rating decisions of the RO. Via the July 2006 rating decision, the RO granted an increased rating of 70 percent for the veteran's service- connected PTSD. The veteran filed a notice of disagreement contending that his PTSD merited an even higher disability rating. A decision awarding a higher rating, but less that the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, this matter continues before the Board. By February 2004 rating decision, the RO denied an evaluation in excess of 10 percent for service-connected bilateral hearing loss. The veteran filed a notice of disagreement in March 2004. As a statement of the case on this matter has not been issued, additional action by the RO is required as set forth below in the Remand portion of this decision. See Manlincon v. West, 12 Vet. App. 328 (1999). Similarly, by July 2006 rating decision, the RO granted entitlement to TDIU benefits effective June 21, 2006. In a July 2006 notice of disagreement, the veteran contested the initial rating assigned. The RO, however, has not issued a statement of the case in this matter. As a statement of the case on this matter has not been issued, additional action by the RO is required as set forth below in the Remand portion of this decision. See Id. The following issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC: Entitlement to an initial compensable rating for service- connected irritable bowel syndrome (IBS); reflux disease aggravated by the service-connected PTSD. Entitlement to an evaluation in excess of 70 percent for service-connected PTSD. Entitlement to an evaluation in excess of 10 percent for service-connected bilateral hearing loss. Entitlement to an effective date earlier than June 21, 2006 for TDIU benefits. FINDINGS OF FACT 1. COPD is not shown to be related to the veteran's active duty service. 2. Arthritis is not shown to be related to the veteran's active duty service, to have had its onset within a year of separation from service, or to be the proximate result of a service-connected disability. CONCLUSIONS OF LAW 1. COPD is not due to disease or injury that was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). 2. Arthritis is not due to disease or injury that was incurred in active duty service and is not it the proximate result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2006). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103; 38 CFR § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (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. In addition, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In this case, in September 2003, May 2004, and March 2006 letters, the RO notified the veteran of the information and evidence needed to substantiate and complete his claims and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also advised the veteran to identify any additional information that he felt would support his claims and effectively informed him to submit any relevant information in his possession. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). Finally, via the March 2006 letter, he was apprised of disability ratings and effective dates as mandated by the Court in Dingess/Hartman. In summary, the evidence does not show, nor does the veteran contend, that any notification deficiencies have resulted in prejudice. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (holding that due process concerns with respect to VCAA notice must be pled with specificity). Therefore, the Board finds that to decide the appeal at this time would not be prejudicial to the veteran. Under VCAA, VA also has a duty to assist claimants of VA benefits in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). In this case, the veteran's service medical records are on file as are post service VA medical records. The veteran's service personnel records have also been associated with the claims file. The veteran has also been afforded a VA examination in connection with the issues decided herein. There is no indication of any outstanding medical or other relevant evidence. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Standard of Review When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the positive and negative evidence as to a claim is in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. Service Connection Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). COPD The veteran's service personnel records to include the DD Forms 214 reflect that his service encompassed various clerical duties. There is no indication in the service records that the veteran was exposed to asbestos, and there is no indication that he performed any work in shipyards, work involving pipes, or other construction or maintenance type work during service. The service medical records do not show a diagnosis of COPD or similar condition. On October 2003 VA general medical examination, the examiner diagnosed COPD. The examiner, however, opined that the disorder was unrelated to the veteran's service. Because the evidence does not reflect that COPD is directly related to the veteran's service and because the competent medical evidence indicates no nexus between COPD and service, direct service connection for COPD is denied. 38 C.F.R. § 3.303. Similarly, there is no indication in the medical evidence that COPD resulted from asbestos exposure in service or otherwise. Thus, the Board need not consider whether the veteran's COPD was caused by asbestos exposure in service. Ennis, supra; McGinty. In any event, however, there is no suggestion of asbestos exposure in service, and the veteran's clerical duties certainly do not, in and of themselves, suggest asbestos exposure. In his April 2004 claim, the veteran asserted that he was exposed to asbestos in service and that COPD is related to such asbestos exposure. As outlined above, there is no convincing indication of asbestos exposure in service. In any event, the veteran is not shown to be competent to render medical opinions upon which the Board may rely. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). This is a case where the preponderance of the evidence weighs against the veteran's claim. Pursuant to a comprehensive medical examination in October 2003, a VA examiner opined that the veteran's COPD was unrelated to service. There is no competent medical evidence to the contrary. The preponserance of the evidence, therefore, is against the claim. As the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not for application. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. Arthritis The service medical records are silent as to arthritis, and there is no indication in the record that arthritis had its onset within one year of separation from any of the veteran's distinct periods of service. On October 2003 VA general medical examination, the examiner observed mild enlargement of certain joints indicative of osteo as well as rheumatoid arthritis. The VA examiner opined, however, that the veteran's osteoarthritis and rheumatoid arthritis were unrelated to service. In addition, the examiner explained that there was no plausible or legitimate correlation between osteoarthritis and/or rheumatoid arthritis and PTSD. The veteran apparently believes that his arthritis had resulted from his service-connected PTSD. The Board cannot credit the veteran's opinion in this regard because he is not shown to be competent to render medical opinions upon which the Board may rely. Espiritu. The competent medical evidence reflects no nexus between the various forms of arthritis from which the veteran suffers and service. Thus, service connection for arthritis on a direct basis is denied. 38 C.F.R. § 3.303. Service connection for arthritis cannot be granted on a presumptive basis because arthritis is not shown to have had its onset within a year of separation from any of the veteran's periods of service. 38 C.F.R. §§ 3.307, 3.309. The competent medical evidence also indicates explicitly that there is no causal relationship between the service-connected PTSD and arthritis. As such, service connection for arthritis as secondary to the veteran's service-connected PTSD is not warranted. 38 C.F.R. § 3.310. This is a case where the preponderance of the evidence weighs against the veteran's claim. Pursuant to a comprehensive medical examination in October 2003, a VA examiner opined that the veteran's arthritis was unrelated to service and unrelated to the service-connected PTSD. There is no competent medical evidence to the contrary. The preponderance of the evidence, therefore, is against the veteran's claim. As the preponderance of the evidence is against the veteran's claim, the benefit of the doubt rule is not for application. Ortiz, 274 F.3d at 1365; see also 38 U.S.C.A. § 5107. ORDER Service connection for COPD is denied. Service connection for arthritis is denied. REMAND A remand in this case is necessary for procedural reasons and because some further development of the evidence must be accomplished. The veteran's IBS with reflux disease was last examined three years ago. The veteran appears to contend that these symptoms have worsened. In any event, the Board requires more current information on the severity of the disorder. The VA's statutory duty to assist the veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The veteran's service-connected PTSD was last comprehensively examined over three years ago, and the veteran appears to contend that the disability is worse than reflected on previous VA examination reports. Thus, a VA psychiatric examination should be scheduled to assess the current severity of the veteran's PTSD. Green, supra. All symptoms and manifestations should be described and the severity of each assessed. The examiner should assign a global assessment of functioning (GAF) score that is attributable to the veteran's PTSD alone along with a general GAF score, if different. Regarding the service-connected bilateral hearing loss, the RO denied an increased rating for that disorder by February 2004 rating decision. The veteran filed a timely notice of disagreement in March 2004, but the RO has not issued a statement of the case. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2006) (detailing the procedures and time limitations for appealing unfavorable RO decisions to the Board). As a statement of the case addressing this matter has not yet been issued, additional action by the RO is necessary. See Manlincon, supra. Similarly, by July 2006 rating decision, the RO granted entitlement to TDIU benefits. That month, the veteran filed a timely notice of disagreement concerning the effective date assigned, namely, June 21, 2006. The RO has not issued a statement of the case. As a statement of the case addressing this matter has not yet been issued, additional action by the RO is necessary. Id. Accordingly, the case is REMANDED to the RO via the AMC for the following action: 1. Schedule a VA medical examination pertaining to the veteran's service- connected IBS with reflux disease. The examiner must describe all symptoms and manifestations of the disorder in detail. The claims file should be reviewed and the examination report should indicate whether the claims file was reviewed in conjunction with the examination. 2. Schedule a VA psychiatric examination to assess the current severity of the veteran's PTSD. All symptoms and manifestations of his PTSD should be described and the severity of each assessed. The examiner should assign a GAF score that is attributable to the veteran's PTSD alone as well as a general GAF score, if different. The examiner should indicate in the examination report that the claims file was reviewed and provide a rationale for all opinions and conclusions. 3. Then, following completion of any indicated development, the RO should undertake to review the veteran's claims for increase. If indicated, the veteran and his representative should be provided with a supplemental statement of the case and given an opportunity to respond thereto. 4. The RO should issue a statement of the case to the veteran and his representative addressing the issue of entitlement to an evaluation in excess of 10 percent for service-connected bilateral hearing loss and for the issue of entitlement to an effective date prior to June 21, 2006 for the grant of entitlement to TDIU benefits. The statement of the case should include all relevant law and regulations pertaining to the claims. The veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs