Citation Nr: 0728136 Decision Date: 09/07/07 Archive Date: 09/14/07 DOCKET NO. 06-26 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a major depressive disorder (claimed as anxiety/nervous condition). 2. Entitlement to service connection for residuals of a head injury. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including as due to exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran had active service from February 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision of the Augusta, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2007, the veteran, sitting at the RO, testified during a hearing conducted via video-conference, with the undersigned sitting at the Board's main office in Washington, D.C. The transcript of this hearing is of record. The Board notes that in a September 2006 letter the veteran indicated that he wished to establish a claim for pension due to loss of a commercial driver's license. This issue has not yet been addressed and is referred to the RO for initial adjudication. The issue of entitlement to service connection for a major depressive disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The objective and probative medical evidence of record preponderates against a finding that any currently diagnosed residuals of a head injury are related to his period of active military service. 2. The objective and probative medical evidence of record preponderates against a finding that the veteran has a currently diagnosed chronic respiratory disability, including COPD, that is related to his period of active military service, including asbestos exposure in active service. CONCLUSIONS OF LAW 1. Residuals of a head injury were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103-A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006). 2. COPD was not incurred during active military service, including as due to asbestos exposure in service. 38 U.S.C.A. §§ 1110, 5103-5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Regarding the veteran's claim for entitlement to service connection for COPD, alleged to be secondary to asbestos exposure in service, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Regarding the veteran's claim for entitlement to service connection for residuals of a head injury, in Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a May 2005 letter, the RO notified the veteran of the evidence needed to substantiate his claim for service connection. This letter satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. Finally, with respect to the fourth element, the VCAA letter contained a notation that the veteran was to let VA know if there was any evidence or information that he thought would support his claim. This statement served to advise the veteran to submit any evidence in his possession pertinent to the claims on appeal. The Court has also held that 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). In the present appeal, the first three elements of Dingess notice are satisfied by the May 2005 letter. However, the veteran did not receive notice about the evidence needed to establish a rating or an effective date. Since the claims are being denied, no rating is being given and no effective date is being set. He is, therefore, not prejudiced by the lack of notice on these elements. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Here, the notice was provided prior to the appealed rating decision, fully in accordance with Pelegrini II and Mayfield. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service medical records, VA medical center (VAMC) records and private medical records. Additionally, the veteran underwent VA examinations in September 2005 and March and May 2006 for his claimed disability. As well, he testified during a hearing before the undersigned in January 2007. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. II. Legal Criteria and Analysis Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2006). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also, Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Service Connection for Residuals of a Head Injury. Service medical records reflect that, in June 1964 the veteran bumped his head on low steel overhead. He was unconscious for a minute according to witnesses. The veteran stated that he continued to have headaches. He was hospitalized and x-rays were reported as normal. The diagnosis was post concussion syndrome. He presented two days after his hospital release with complaints of headaches and dizziness. The treating doctor noted no residual abnormalities secondary to the veteran's concussion. There were no abnormal neurological findings. The diagnosis was a post traumatic headache. The veteran again presented with a headache in July 1964 and September 1964. A September 1964 treatment note indicates that the veteran's post concussion symptoms of headaches and vertigo gradually subsided. When examined for separation in December 1967, the veteran's head and neurological system were normal. Post service, in February 2005, the veteran presented to a private medical center after he fell out of the cab of his truck and struck the back of his head. He denied any history of ongoing medical problems. Results of a computed tomography (CT) scan of the head taken at the time were negative. The diagnosis was a probable concussion. In September 2005, the veteran underwent a VA examination. The veteran reported headaches which were dull and constant. He stated that the headaches worsened over the past 4 to 5 years. At times he felt lightheaded and dizzy. The diagnosis was status post concussion in June 1964. The examiner concluded that it was less likely than not that the veteran's current headaches were due to his in service head injury. According to a March 2006 report, the recent VA examiner opined that it was less likely as not that the veteran's head injury sustained while in service caused or resulted in the veteran's current headaches. This examiner said that it was unlikely that, after 42 years, that the head injury sustained would continue to produce the headaches as described by the veteran. The examiner noted that results of the recent non- contrast CT head scan performed in February 2005 following a head injury were negative. In August 2006 the veteran presented to the Togus, Maine VAMC with complaints of double vision and pressure in his head. During his January 2007 hearing, the veteran stated that he would get headaches all the time. Sometimes the headaches were so bad that he could not function. The veteran has contended that service connection should be granted for residuals of a head injury. Although the evidence shows that the veteran currently has complaints of headaches, no competent medical evidence has been submitted to show that this disability is related to service or any incident thereof. On the other hand, the record reflects that, although he sustained a concussion in service in June 1964, his head and neurological system were normal on separation from service and the first post service evidence of record of headaches and dizziness is from 2005, 38 years after the veteran's separation from service. The VA examiner in September 2005 and March 2006 concluded that it was less likely than not that the veteran's current headaches were due to his in-service head injury. In fact, in March 2006 the examiner noted that it was unlikely that after 42 years that the head injury sustained (in service) would continue to produce the headaches as described by the veteran. Additionally, the record demonstrates that the veteran suffered a probable concussion in February 2005. In short, no medical opinion or other medical evidence relating the veteran's headaches to service or any incident of service has been presented. B. Service Connection for COPD, Including As Due to Asbestos Exposure The veteran's service medical records are negative for any complaints or treatments related to respiratory problems. Official service documentation confirms that the veteran served aboard the USS NEOSHO (AO-143) for 3 years as a boatswain mate. A May 1994 private chest x-ray report reflects an impression of unchanged arteriosclerotic heart disease and COPD. In September 2005 the veteran underwent a VA examination for his lung condition that was performed by a physician's assistant. According to the examination report, the veteran said that he worked as a boiler technician and later as a hospital corpsman. He stated that as a boiler technician in the service he repacked valves with strips of asbestos. There was also asbestos covering various pipes. The veteran denied a history of tobacco use. The examiner noted that the veteran had a diagnosis of COPD and a chest x-ray in December 2001 showed parenchymal scarring bilaterally with no acute cardiopulmonary pathology. The examiner also noted that the veteran attempted to do a pulmonary function test (PFT) a week earlier but was unable to comply. The pertinent diagnosis was history of asbestos exposure, COPD. The examiner concluded that it was less likely than not that the veteran's current COPD was related to asbestos exposure in service. A September 2005 treatment note from the VAMC indicates that the veteran had a diagnosis of COPD. In October 2005 the veteran underwent a CT scan of his thorax. The CT scan revealed mild atelectasis in the posterior medial aspect of the right mid lung zone and mild increased vascular engorgement with minimal increased thickening of the pleura on the left lower lung zone. Also in October 2005, the veteran underwent PFTs at the Togus VAMC. Spiromery interpretation was that the obstructive defect was very severe. The treating doctor noted that there was no significant response to a bronchodilator. Since the previous study, the diffuse capacity had decreased. In a March 2006 report, the September 2005 VA examiner opined that, after further review of the veteran's claims file, including the October 2005 CT scan, the veteran's COPD was as least as likely as not related to his asbestos exposure while in the service. The findings on the CT scan were consistent with asbestosis. The examiner stated that a biopsy might provide a more definitive connection between the COPD and asbestos exposure but, given the fact that the veteran had never smoked or had other significant occupational exposures, he felt that the veteran's COPD was caused by the asbestos exposure. In May 2006, the veteran was examined by a VA pulmonologist and critical care physician regarding his complaints of dyspnea on exertion. It was noted that the veteran was a lifetime nonsmoker and was a boiler room technician in service for approximately three years, working directly with asbestos intermittently in those times. It was further noted that physicians told the veteran he had asthma and emphysema. The VA pulmonologist reviewed results of the veteran's December 2001 and October 2005 CT scans and results of the September and December 2001, September 2005 and May 2006 PFTs, as well as the chest x-rays performed in December 2001 and Septemer 2005. In his June 2006 report of that examination, the VA pulmonologist said that the veteran did not have asbestosis and did not have COPD. It was the medical specialist's opinion that the veteran did not have any significant underlying lung disease. According to this physician, the veteran had some scar tissue at his left lung base due to having two previous surgeries performed in that area to correct a hiatal hernia. The veteran also had a very minimal degree of pleural thickening at both lung bases, but that of the left was likely due to previous surgery. In his report, the VA doctor said there was the "possibility" that the pleural thickening was due to asbestos exposure in service. The degree of pleural thickening was extremely minimal and would be of no physiologic consequence. The veteran had no evidence of COPD and was a lifetime nonsmoker. According to the VA pulmonologist, the veteran's inability to perform spirometry testing was definitely due to anxiety and there was no known lung disease that impeded a patient from performing that study. The physician speculated that much of the veteran's underlying dyspnea on exertion was also due to anxiety as the veteran had no evidence of any other type of physical diease that could cause dyspnea on exertion to the extent that the veteran described. The examiner also stated that none of the veteran's PFT results were valid as they all indicated inconsistent effort. He concluded that the veteran was unable to perform a PFT study due to underlying anxiety. An exercise oximetry revealed that the veteran did not have any exercise-induced arterial oxygen desaturation on room air with activity. This was a normal physiologic response to exercise and strongly indicated the absence of significant lung disease. A June 2006 VA outpatient record indicates the veteran was re-examined by the VA pulmonologist who examined him in May 2006. The veteran complained of the same symtoms and did not believe he had shortness of breath due to nerves. It was noted that a chest CT performed that day revealed stable appearing increased lung markings and pleural thickening at the left lung base and a considerable decrease in the area of infiltrate in the right lung base as compared with the previous chest CT of October 2005. Results of chest x-rays taken at the time were unchanged as compared with those taken in September 2005. The VA pulmonologist reported that radiographic abnormalities at the right lung base decreased considerably over the past eight months. "The evolution over times of this infiltrate suggests that it was inflammatory in nature" and only residual scar tissue in the area of inflammation remained. The doctor said that radiographic abnormalities at both lung bases combined to cause the veteran to have very mild lung impairment from which he should be asymptomatic and the veteran's level of dyspnea remained far out of proportion to his observable abnormalities. In the VA pulmonologist's opinion this indicated that there had to be a non-pulmonary component to the veteran's dyspnea that he believed was anxiety-related. In August 2006 the veteran presented to the Togus VAMC with substantial chest discomfort. The diagnosis was costochondritis and COPD/reactive airway. During his January 2007 hearing, the veteran stated that during his service he was packing valves which involved taking the old asbestos out and putting in the new one. There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary of Veterans Affairs (Secretary) promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering 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) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4- 00. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases which may occur 10 to 45 years after exposure. The VA Adjudication and Procedure Manual provides a non-exclusive list of asbestos related diseases/abnormalities. Specifically, with regard to respiratory disorders, it lists: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, and cancer of the pharynx. M21-1MR, Part IV, Subpart ii, Chapter 2(C)(9) (December 13, 2005) (formerly M21-1, Part VI, para. 7.21(a)(1) & (2)). The Court has held that the MANUAL M21-1 provisions do not create a presumption of exposure to asbestos solely from shipboard service. Dyment v. West, 13 Vet. App. 141, 145 (1999). "Rather, [the M21-1 provisions] are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers." Id. In sum, these guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; the rating specialists are to develop any evidence of asbestosis exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. Again, these guidelines are not a legal presumption for service connection. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). Here, the objective and competent medical evidence in this case fails to show the presence of a chronic lung disorder until many years after service and there appears to be no basis to link any currently diagnosed lung disorder to service unless it is due to alleged asbestos exposure. In fact, in 2006, a VA pulmonologist said the veteran did not have COPD or significant lung disease. See Degmetich, Brammer, Rabideau, supra. This medical specialist attributed the veteran's shortness of breath to anxiety. Regarding the requirement for an in-service injury, the veteran's service medical records are negative for a respiratory disease, but the veteran's duties aboard the ship were as a boatswain. He testified that his work in service involved packing valves that included removing and replacing asbestos. For the purposes of the discussion herein, the Board would concede that, based on the veteran's military occupational specialty, it is possible he may have been exposed to asbestos during service. Nevertheless, considering the medical evidence of record in light of the above-noted criteria, the Board finds that service connection for COPD, including as secondary to asbestos exposure, is not warranted The Board finds that the evidence in its entirety does not show that it is at least as likely as not that the veteran has a current lung disorder as the result of his military service, including asbestos exposure. Even assuming, arguendo, that the veteran may have been exposed to asbestos in service, VA medical specialists, most recently the 2006 pulmonologist, did not find significant lung disease or asbestosis. See e.g., Degmetich, Brammer, and Rabideau v. Derwinski, 2 Vet. App. at 144 (service connection requires medical evidence showing that the veteran has the claimed disability.). In support of his claim, the veteran would point to the diagnosis rendered in March 2006 by the VA physician's assistant to the effect that the veteran's COPD was at least as likely as not related to his asbestos exposure in service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Further, a medical opinion isn't adequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1993). A bare conclusion, even when reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. at 470-71. Here, the Board finds that the June 2006 VA pulmonologist's report to be most persuasive in that this physician is a medical specialist in pulmonary and critical care who reviewed the probative clinical findings, including results of the December 2001 and October 2005 CT scans, and results of chest x-rays and PFTs, examined the veteran, and concluded that the veteran did not have asbestosis or clinical evidence of significant lung disease. The veteran may also want to point to the VA pulmonologist's statement in the June 2006 report to the effect that there was a "possibility" that there was pleural thickening due to asbestos exposure in service. However, what the veteran requests in this case is that the Board resort to conjecture in order to find that he has COPD due to asbestos exposure in service. However, service connection may not be predicated on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (1996); see Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (on claim to reopen a service connection claim, statement from physician about possibility of link between chest trauma and restrictive lung disease was too general and inconclusive to constitute material evidence to reopen); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative) In this regard, the Board notes that VA physician's assistant's 2006 diagnosis of COPD due to asbestos exposure was apparently based upon review of results of the October 2005 CT scan. Nor did the VA physician's assistant provide clinical evidence to support his belief, and his opinion, although doubtless sincerely rendered, is for that reason not accorded great weight by the Board. See Bloom v. West, supra. See also Black v. Brown, 5 Vet. App. at 180 (A medical opinion is inadequate when it is unsupported by clinical evidence.). Furthermore, the veteran has submitted no evidence to show that he currently has COPD, including as due to asbestos exposure. In short, no medical opinion or other medical evidence showing that the veteran currently has COPD, including as due to asbestos exposure has been presented. Rabideau v. Derwinski, 2 Vet. App. at 143. C. Both Disorders In addition to the medical evidence, the Board has considered the veteran's assertions, to include those advanced during the February 2007 Board hearing. While the Board does not doubt the sincerity of the veteran's belief that he has residuals of a head injury, or COPD that is related to asbestos exposure in service, these claims turn on a medical matter of etiology. However, the veteran does not meet the burden of presenting evidence as to medical cause and effect, or a diagnosis, merely by presenting his own statements, because as a layperson he is not competent to offer medical opinions. The Court has made this clear in numerous cases. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). There is no evidence showing, and the veteran does not assert, that he has had sufficient medical training to provide competent medical evidence as to the etiology of his claimed COPD or residuals of a head injury. The Board finds a lack of competent medical evidence to warrant a favorable decision. The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553 (1996). Here, the appellant has failed to submit competent medical evidence to provide a nexus between any in-service injury or disease and the conditions that caused and contributed to his currently claimed COPD and residuals of a head injury. The preponderance of the evidence is therefore against the appellant's claims of entitlement to service connection for COPD, including as due to exposure to asbestos, and residuals of a head injury. We have considered the doctrine of reasonable doubt. Under that doctrine, when there is an approximate balance between evidence for and against a claim, the evidence is in equipoise, there is said to be a reasonable doubt, and the benefit of such doubt is given to the claimant. 38 U.S.C.A. § 5107(b); see Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); 38 C.F.R. § 3.102. However, when the evidence for and against a claim is not in equipoise, then there is a preponderance of evidence either for or against the claim, there is no reasonable doubt, and the doctrine is inapplicable. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Based upon the evidence of record, service connection for COPD, including as due to exposure to asbestos, and residuals of a head injury is not warranted. ORDER Service connection for residuals of a head injury is denied. Service connection for COPD, including as due to asbestos exposure, is denied. REMAND The record demonstrates that the veteran has a current diagnosis of depressive disorder and that he was treated for nervousness and anxiety while in service. At his January 2007 hearing, the veteran stated that he was repeatedly sexually assaulted during his active duty by a superior officer, to which he attributed his current mental disorder. While not specifically set forth, it appears, by his testimony, that the veteran's characterization of the psychiatric disorder for which he is seeking service connection, major depressive disorder, also includes post- traumatic stress disorder (PTSD). 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. . . ." 38 C.F.R. § 3.304(f) (2006). The descriptive definition of a stressor in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV) provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. While the Board notes that, in September 2005 correspondence, the RO advised the veteran of the VCAA and its effect on his claim, the record does not indicate that the veteran was specifically advised as to his alleged sexual assault, and the necessity of providing additional details of his alleged stressful incident(s) in service, or that he may provide corroborating evidence from alternate sources of information. Such details are necessary so that VA can properly explore alternative sources for information to corroborate the alleged stressor incident. See Patton v. West, 12 Vet. App. 272 (1999) (holding that the provisions in M21-1, Part III, 5.14(c) (April 30, 1999), which address PTSD claims based on personal assault and provide for development of alternate sources for information, are substantive rules which are the equivalent of VA regulations and must be considered); see also YR v. West, 11 Vet. App. 393, 398-99 (1998). This must be done prior to Board consideration of his claim. The next question presented is whether a stressor such as reported by the veteran is clinically considered to be of sufficient severity to warrant a valid diagnosis of PTSD, consistent with the diagnostic criteria DSM-IV. See Cohen v. Brown, 10 Vet. App. 128 (1997). The veteran was treated for anxiety in service and was diagnosed with major depressive disorder, according to a September 2005 VA examination report. A November 2006 VA outpatient record includes a history of PTSD, and anxiety. A new VA examination to resolve the etiology of the veteran's diagnosed psychiatric disorder seems warranted in the interest of due process and fairness. Accordingly, the case is REMANDED for the following action: 1. The veteran should be requested to specifically state in writing if his claim for service connection for a psychiatric disorder, which he identifies as depressive disorder, includes a claim for PTSD. The veteran's service representative should be provided with a copy of this correspondence. 2. In the event the veteran responds in the affirmative, he should be asked to provide any additional information available regarding the stressful events claimed to have caused PTSD, and to identify potential alternative sources for supporting evidence regarding the stressors he alleges occurred in service. In particular, the veteran should provide as much detailed information as possible including the dates, places, names of people present, and detailed descriptions of events. The veteran is advised that this information is necessary to obtain supportive evidence of the claimed stressor events and that he must be as specific as possible because, without such details, an adequate search for verifying information cannot be conducted. 3. The veteran should be advised that he may provide corroborating evidence of his alleged stressful events in service from alternate sources. He should also be advised that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the stress or civilian police reports, reports from crisis intervention centers, testimonial statements from confidants, and copies of personal diaries or journals. The RO/AMC should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate. 4. Following completion of the foregoing, the RO/AMC should review the evidence of record and ensure that it has fully complied with the provisions of 38 C.F.R. § 3.304(f) and VA Adjudication Manual M21-l, Part III, 5.14 (c). 5. Then, the RO/AMC should schedule the veteran for an examination by a VA psychiatrist experienced in evaluating post-traumatic stress disorders, to determine the nature and extent of any psychiatric disorder(s) found to be present. All indicated tests and studies should be accomplished and all clinical findings reported in detail. a. The examiner is advised that the veteran served in the U.S. Navy from February 1964 to December 1967, and maintains that he experienced sexual trauma in service. b. The examiner should elicit as much detail as possible from the veteran as to such claimed stressor, e.g., locations, dates, and identities of individuals involved. Then, pending verification of the veteran's exposure thereto, the examiner should consider the veteran's alleged in-service stressors for the purpose of determining whether such stressors were severe enough to have caused the current psychiatric symptoms, and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied by the in- service stressors. The diagnosis should conform to the psychiatric nomenclature and diagnostic criteria contained in DSM-IV. The examiner is requested to state if the diagnosis is predicated on the unverified stressor of a sexual assault as alleged by the veteran. c. If the veteran is found to have PTSD, the examiner is requested to identify the diagnostic criteria, including the specific stressor or stressors supporting the diagnosis. If PTSD is diagnosed, the examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed PTSD is a result of service or whether such an etiology or relationship is unlikely (i.e., less than a 50-50 probability). The diagnosis should conform to the psychiatric nomenclature and diagnostic criteria contained in the DSM-IV. d. If the veteran is found to have an acquired psychiatric disorder other than PTSD, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed psychiatric disorder is causally related to military service (including the findings noted in the service medical records), or whether such a causation or relationship is unlikely (i.e., less than a 50-50 probability). The examiner is particularly requested to reconcile the veteran's other psychiatric diagnoses, e.g., major depressive disorder (by the September 2005 VA examiner); and anxiety, history of PTSD (in a November 2006 VA medical record). e. A complete rationale should be provided for any opinion offered. The veteran's claims file must be made available to the examiner in conjunction with the examination, and the examination report should indicate if veteran's medical records were reviewed by the examine. NOTE: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 6. Thereafter, the RO/AMC should readjudicate the veteran's claim for service connection for a major depressive disorder (claimed as anxiety/nervous condition). The RO should adjudicate any new claim for service connection for PTSD submitted by the veteran. If the benefits sought on appeal remain denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC should contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal since the June 2006 statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ D.J. DRUCKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs