Citation Nr: 0812581 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-02 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for major depression. 4. Entitlement to service connection for asbestosis. 5. Entitlement to an initial compensable evaluation for allergic rhinitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The veteran had active service from August 1973 to August 1975. These claims come before the Board of Veterans' Appeals (Board) on appeal of October 2003 and April 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The veteran testified in support of these claims at a hearing held before the undersigned Veterans Law Judge in Washington, D.C., in December 2007. The Board addresses the claims of entitlement to service connection for PTSD, major depression and asbestosis and entitlement to an initial compensable evaluation for allergic rhinitis in the Remand portion of this decision, below, and REMANDS these claims to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. VA provided the veteran adequate notice and assistance with regard to the claim being decided. 2. Headaches are related to, and currently considered part of, the veteran's service-connected sinusitis. CONCLUSION OF LAW The veteran's headaches are a component of his service- connected sinusitis and do not warrant a separate evaluation. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide, in part, that VA will notify the claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, with regard to the claim being decided, VA provided the veteran adequate notice and assistance such that the Board's decision to proceed in adjudicating this claim does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). A. Duty to Notify The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court also indicated that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio, that informs 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, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court clarified that VA's regulations implementing amended section 5103(a) apply to cases pending before VA on November 9, 2000, even if the RO decision was issued before that date, and that, where notice was not mandated at the time of the initial RO decision, it was not error to provide remedial notice after such initial decision. Id. at 120, 122-24. On March 3, 2006, the Court held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court further held that notice under the VCAA must inform the claimant that, if the RO grants his service connection claim, it will then assign such an award a disability rating and an effective date. Id. at 486. In this case, the RO provided the veteran VCAA notice on the claim being decided by letter dated February 2006, before initially deciding that claim in a rating decision dated April 2006. The timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The content of the aforementioned notice letter considered in conjunction with the content of other letters the RO sent to the veteran in March 2006 and September 2006 reflects compliance with the requirements of the law as found by the Court in Pelegrini II and Dingess/Hartman. Therein, the RO acknowledged the claim being decided, informed the veteran of the evidence necessary to support that claim, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claim pursuant to that duty. The RO also provided the veteran all necessary information on disability evaluations and effective dates. As well, the RO identified the evidence it had received in support of the veteran's claim and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the veteran in obtaining all outstanding evidence provided he identified the source(s) thereof, but that, ultimately, it was the veteran's responsibility to ensure VA's receipt of all requested evidence. The RO advised the veteran to sign the enclosed forms authorizing the release of his treatment records if he wished VA to obtain them on his behalf. The RO also advised the veteran to identify or send directly to VA all evidence he had in his possession, which pertained to his claim. B. Duty to Assist The RO made reasonable efforts to identify and obtain relevant records in support of the claims being decided. U.S.C.A. § 5103A(a), (b), (c) (West 2002). First, the RO secured and associated with the claims file all evidence the veteran identified as being pertinent to his claim, including service medical records, post-service VA and private treatment records, and information from the Social Security Administration (SSA). The RO did not conduct medical inquiry in an effort to substantiate the claim being decided by affording the veteran VA medical examination because there was sufficient competent evidence of record, including treatment records and written opinions, addressing the etiology of the headaches. The veteran does not now claim that this evidence is inadequate to decide the claim being decided. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what additional evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). II. Analysis of Claim The veteran claims entitlement to service connection for headaches. According to his written statements submitted during the course of this appeal and his hearing testimony, presented in December 2007, he developed these headaches in service at the same time he started having problems with his sinuses. Allegedly, these headaches are always associated with his sinusitis, allergies or rhinitis, but because medical professionals treat his headaches with different medication than is needed for the respiratory disability, they should be separately service connected from the respiratory disability. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease 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). The evaluation of the same disability under various diagnoses is to be avoided. Certain conditions such as dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2007). In order to prevail on the issue of service connection on the merits, there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As previously indicated, the veteran had active service from August 1973 to August 1975. As alleged, during that time period, he received treatment for headaches. Following discharge, beginning in the 1990s, he reported that he had been having headaches. Physicians initially discussed the headaches while treating the veteran for substance abuse and dependence problems and mental health complaints. Subsequently, however, physicians discussed the headaches while treating the veteran for variously diagnosed respiratory disabilities. Since the veteran filed his claim for service connection for headaches, medical professionals have related the headaches to the veteran's sinusitis. Based on the foregoing, in a rating decision dated October 2003, the RO granted the veteran service connection for sinusitis and, in assigning that disability an initial evaluation, considered the veteran's headaches part of the disability. The veteran is thus now in receipt of VA compensation for such headaches, whatever their etiology. The Board acknowledges the veteran's assertion that his headaches should be separately service connected from his sinusitis. However, under 38 C.F.R. § 4.14, doing so would constitute pyramiding. The evaluation now assigned for the veteran's sinusitis, currently 30 percent, contemplates the headaches. Assigning a separate evaluation for the same headaches, even if they occasionally manifest secondary to a psychiatric disability or other non-respiratory disability, is tantamount to compensating the veteran twice for the same manifestations. In sum, the veteran's headaches are related to, and considered part of, his service-connected sinusitis. Based on this finding, the Board concludes that headaches were incurred in service as part of the veteran's sinusitis. The evidence in this case is not in relative equipoise regarding entitlement to service connection for headaches other than those that are part of the veteran's service-connected sinusitis. Therefore, the veteran may not be afforded the benefit of the doubt in the resolution of this claim. Rather, as a preponderance of the evidence is against such claim, it must be denied. ORDER Service connection for headaches other than those that are part of the veteran's service-connected sinusitis is denied. REMAND The veteran claims entitlement to service connection for PTSD, major depression and asbestosis and entitlement to an initial compensable evaluation for allergic rhinitis. Additional action is necessary before the Board decides these claims. As previously indicated, the VCAA provides that VA must notify a claimant of the evidence necessary to substantiate his claim and assist him in obtaining and fully developing all of the evidence relevant to his claim. In this case, with regard to the claims being remanded, VA has not yet provided the veteran adequate notice and assistance; therefore, to proceed in adjudicating these claims would prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. at 392-94. First, in January 2008, the Court held that, with regard to claims for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. Vazquez-Flores v. Peake, No. 05- 0355, (U.S. Vet. App. Jan. 30, 2008). The Court further held that, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life (such as a specific measurement or test result), the Secretary must too provide at least general notice of that requirement. As well, the Court held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must cite examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, including competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case, during the course of this appeal, the RO provided the veteran VCAA notice on his claim for a higher initial evaluation, but given the Court's recent decision in Vazquez-Flores, such notice might be inadequate. It informs the veteran of the need to submit medical or lay evidence demonstrating a worsening or increase in severity of his respiratory disability. It does not inform him of the need to submit evidence describing the effect that worsening has on his employment and daily life. Moreover, the veteran has not submitted any statements or taken actions, which show that he has actual knowledge of this requirement. Any decision to proceed in adjudicating the claim for a higher initial evaluation for allergic rhinitis would therefore prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. at 392-94. Second, during the veteran's hearing in December 2007, the veteran reported that he was then receiving treatment for his psychiatric and respiratory disabilities at a VA outpatient clinic in Lufkin, Texas and a VA Medical Center in Houston, Texas. Records of this treatment are not now part of the claims file. Given their pertinence, they must be secured in support of the claims being remanded. Third, under 38 U.S.C.A. § 5103A, VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion whe n an examination or opinion is necessary to make a decision on a cla im. In thi s cas e, examinations in support of the claims for psychiatric dis abi lit ies and asb est osi s are necessary. The RO afforded the veteran psychiatric exa min ati ons dur ing the course of this appeal, but the reports of these examinations are ina deq uat e to dec ide the claims for service connection for PTSD and major dep res sio n. The rei n, no examiner addressed whether the veteran's psychiatric dis abi lit ies are rel ate d to, or aggravated by, his service-connected respiratory dis abi lit ies . Suc h an opi nio n is necessary given that the claims file includes at least one med ica l opi nio n, alb eit not based on a review of the claims file, linking the veteran's psy chi atr ic symptomatology to a lack of sleep caused by sinusitis. Mor eov er, no exa min er addressed whether the veteran's PTSD developed secondary to various stressors the veteran allegedly experienced in service, including being exposed to many dead bodies on the road while setting up areas for mess and having to fly stateside on a cargo plane full of coffins. The RO did not afford the veteran a VA examination in support of his cla im for service connection for asbestosis. However, given that the cla ims fil e inc lud es a current diagnosis of asbestosis and a report of a private phy sic ian lin kin g suc h disability to the veteran's active service, such an exa min ati on is nec ess ary . Dur ing the examination, the examiner can address the veteran's ass ert ion s tha t he developed this disability in service when he slept in huts lin ed wit h asb est os. Based on the foregoing, this case is REMANDED for the following action: 1. Provide the veteran VCAA notice pertaining to his claim for a higher initial evaluation for allergic rhinitis, which satisfies the requirements of the Court's recent holding, noted above. 2. Request, secure and associate with the claims file all outstanding medical evidence pertinent to the claims being remanded, including recent records of treatment for psychiatric and respiratory disabilities at a VA outpatient clinic in Lufkin, Texas and a VA Medical Center in Houston, Texas. 3. Arrange for the veteran to undergo a VA examination in support of his claims for service connection for PTSD and major depression. Forward the claims file to the examiner for review of all pertinent documents therein and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) identify all evident psychiatric symptomatology; b) diagnose all evident psychiatric disabilities, including, if appropriate, PTSD and/or major depression; c) specifically indicate whether the veteran's alleged in-service stressors, including being exposed to many dead bodies on the road while setting up areas for mess and having to fly stateside on a cargo plane full of coffins, were of sufficient severity to support a diagnosis of PTSD; d) opine whether each psychiatric disability is at least as likely as not related to the veteran's service and, if not, whether it is proximately due to or the result of a service-connected respiratory disability; e) if not, opine whether and to what extent each psychiatric disability is aggravated by a service-connected respiratory disability; and f) provide detailed rationale, with specific references to the record, for the opinions provided. 4. Arrange for the veteran to undergo a VA examination in support of his claim for service connection for asbestosis. Forward the claims file to the examiner for review of all pertinent documents therein and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) record in detail any history of in-service and/or post- service asbestos exposure; b) list all companies for which the veteran worked since discharge and record all occupational duties associated with each job; c) Offer an opinion regarding whether the veteran's asbestosis is at least as likely as not related to his active service, including his alleged asbestos exposure while sleeping in asbestos-lined huts; and d) Provide detailed rationale, with specific references to the record, for the opinions provided. 5. Readjudicate the claims being remanded based on all of the evidence of record. If any benefit sought on appeal is not granted to the veteran's satisfaction, provide the veteran and his representative a supplemental statement of the case and an opportunity to respond thereto. Thereafter, subject to current appellate procedure, return this case to the Board for further consideration, if in order. By this REMAND, the Board intimates no opinion as to the ultimate disposition of these claims. No action is required of the veteran unless he receives further notice. He does, however, have the right to submit additional evidence and argument on the remanded claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The law requires that these claims be afforded expeditious treatment. 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) (providing that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled expeditiously); see also VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs