Citation Nr: 0817533 Decision Date: 05/29/08 Archive Date: 06/09/08 DOCKET NO. 03-35 021A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a respiratory condition, to include as associated with in-service asbestos exposure. 3. Entitlement to service connection for a hernia. 4. Entitlement to service connection for rhinitis, claimed as chronic hay fever. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and Daughter ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty with both the U.S. Navy and the U.S. Air Force. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2003 RO decision, which denied claims for service connection for PTSD, asbestosis, a hernia, and rhinitis, claimed as chronic hay fever. In March 2008, a Travel Board hearing was held before the undersigned Veterans Law Judge at the Winston-Salem, North Carolina RO. A transcript of that proceeding has been associated with the claims folder. The record reflects that the veteran submitted additional evidence to the Board in conjunction with this case accompanied by a waiver of initial review of this evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. The issues of entitlement to service connection for a respiratory condition and for rhinitis 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 veteran was exposed to combat while serving aboard a ship off the coast of Korea during the Korean War. 2. The veteran is not shown by the competent medical evidence of record to have a hernia that is etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. Service connection for PTSD is warranted. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2007). 2. A hernia was not incurred in or aggravated by active duty. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim for service connection for PTSD, the benefits sought on appeal have been granted, as discussed below. As such, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the veteran's claim for service connection for a hernia, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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) request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA letter issued in February 2003 specifically satisfied the first three elements of the duty to notify, articulated above. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. With specific regard to the fourth element, viz., that the claimant should provide any evidence relevant to the claim in his possession to VA, it is noted that the aforementioned letter essentially informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA and provided examples of the types of evidence, both medical and lay, that could be submitted. The Board concludes that a reasonable person could be expected to understand that any relevant evidence should be submitted during the development of the claim. Accordingly, the Board concludes that any failure to provide VCAA compliant notice was harmless. The Board may proceed with consideration of the claim on the merits. See Sanders v. Nicholson, 487 F.3d 881 (2007). In regards to the veteran's claim for service connection for a hernia, since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's United States Naval service medical records and VA and private medical records are in the file. The Board notes that a February 2003 response from the National Personnel Record Center revealed that the veteran's United States Air Force medical records for the period of December 1956 to December 1960 were not located. However, as discussed below, the veteran's claim for service connection for a hernia is denied on the basis of no current disability. Therefore, locating these records would not serve to further the veteran's claim. In addition, the veteran stated at the March 2008 hearing that the injury causing his hernia occurred during his active duty in the navy and he sought treatment only once immediately following the initial incident. As such, the Board finds that all records identified by the veteran as relating to this claim have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. In regards to the veteran's claim of service connection for a hernia, the Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed in this case for a hernia because the only evidence indicating the veteran has a current disability is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2007). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2007). In order to establish direct service connection for a disability, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2007). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1) (2007); see also, 38 U.S.C.A. § 1154(b) (West 2002). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). 1. Entitlement to service connection for PTSD. The veteran has contended that he has PTSD as the result of his active duty service. See Claim, January 2003. Specifically, the veteran reports that, while serving on the USS Preston off the shores of Korea, he witnessed a fire on his sister ship, the USS Irwin. See Information in Support of Claim for Service Connection for PTSD, March 2003; hearing transcript, March 2008. He reports that, while serving with Task Force 77, he was under persistent fire, and his ship had to negotiate mine fields. See veteran's statement, March 2004. He also reports that he stayed overnight with marines on the island of Sokto during six days of shore bombardment. Id. Finally, he reports witnessing a mine sweeper blow up. Id. As an initial matter, it is noted that the veteran's service personnel records reflect that he was awarded the Korean Service medal with engagement star K10. Research has revealed that the engagement star K10 is indicative of service in combat operations such as the veteran has described; thus, the Board finds that 38 U.S.C.A. § 1154(b) is applicable, and the veteran's claimed stressors need not be verified. In regards to the veteran's claimed disability, the Board notes that the veteran has been diagnosed with PTSD. In November 2003, the veteran was diagnosed with PTSD with concentration impairment, sleep pattern disturbance and depression with unemployability. See H.E.B., Jr., M.D. treatment record, November 2003. At this time, it was noted that the veteran had PTSD with symptomatology reflective of his military service time on the destroyer in Korea and, therefore, the direct result of that military service time. The claims folder also contains VA Medical Center (VAMC) treatment records indicating that the veteran has moderate symptoms of PTSD. See VAMC treatment record, December 2005. In March 2008, the veteran's private physician's assistant stated that the veteran suffered from PTSD from his service during the Korean Conflict that results in sleep interference and behavior related complaints. See M.H.C., MPAS treatment record, March 2008. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2007). Therefore, as the Board has recognized the veteran's combat experience, the veteran has a current diagnosis of PTSD, and the claims folder contains a medical opinion linking the veteran's PTSD to his active duty service, the veteran's claim for service connection for PTSD may be granted. See Hickson, supra. 2. Entitlement to service connection for a hernia. The veteran has contended that he has a hernia as the result of his active duty service. See Claim, January 2003. Specifically, the veteran claims that, while loading ammunition, he slipped and fell due to the rocking of the ship, injuring himself. See hearing transcript, March 2008. The Board notes that the veteran's naval service medical records contain no documentation of such an incident. In addition, the entirety of the veteran's naval service medical records are absent any complaints, treatment, or diagnosis of a hernia. The service medical do indicate that the veteran sought treatment in September 1955 for stomach pains. However, there is no indication of record that these pains were in any way related to a hernia. In addition, there is no indication in the medical evidence of record that the veteran has a current diagnosis of or has recently sought treatment for a hernia. The Board notes that a May 2006 VAMC treatment record indicated that the veteran had a history of a hiatal hernia. However, there is no indication in the medical evidence of record that the veteran has a current diagnosis of a hernia. The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the veteran's sincere belief in his claim, the competent medical evidence of record does not show the veteran to have a current hernia disability; thus, there may be no service connection for this claimed disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a hernia, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for PTSD is granted. Entitlement to service connection for a hernia is denied. REMAND The veteran is seeking service connection for a lung disease, as related to asbestos exposure. See Claim, January 2003. He contends that he was exposed to asbestos while working in the engine room of the USS Preston and the USS Frisk during his active duty. See veteran's statement, March 2003; hearing transcript, March 2008. As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing 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 since have been included in VA Adjudication Procedure Manual, M21-1 MR, part VI, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). The Board notes that the M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (e). As an initial matter, in light of the fact that the veteran's personnel records support his assertions of serving on a ship, the Board concedes that the veteran was most likely exposed to asbestos during service. In March 2008, the veteran's private physician's assistant submitted a statement finding that the veteran has restrictive lung disease from occupational exposure from shipyard and engine room work. See M.H.C., MPAS treatment record, March 2008. However, the Board notes that the medical evidence of record indicates that the veteran receives treatment for chronic obstructive pulmonary disease (COPD) with evidence of pulmonary fibrosis but no specific finding of restrictive lung disease. Under the circumstances, the Board finds that a VA respiratory examination is necessary to clarify the nature and etiology of his respiratory disorder. The veteran has also contended that he has chronic hay fever as the result his active duty service. See Claim, January 2003. After a thorough review of the veteran's claims folder, the Board has determined that this issue must be remanded in order to attempt to locate additional service medical records. The medical evidence of record indicates that the veteran was treated for allergic rhinitis in December 2001. See VAMC treatment record, December 2001. On the veteran's January 2003 Claim, he indicated that he served in the United States Force Air Force from December 31, 1956 to December 31, 1960. He also stated in this claim that he developed chronic hay fever at some point between 1953 to 1960. An attempt was made to locate his Air Force medical records for this time period. A February 2003 response from the National Personnel Records Center indicated that a service number was needed in order to locate the veteran's Air Force medical records. In May 2007, the veteran was sent a letter requesting that he provide VA with his Air Force service number or a certified copy of his Air Force DD-214 Form. The veteran did not respond to the May 2007 request. However, VA has an obligation under the VCAA to associate all relevant records in VA's possession with the claims file of a veteran, and a heightened duty when it comes to records of a Federal Agency. 38 C.F.R. § 3.159 (2007). Therefore, the Board finds that another effort should be made to locate any outstanding records from the veteran's service in the United States Air Force for the period of December 1956 to December 1960. Accordingly, the case is REMANDED for the following action: 1. Submit an additional request for the veteran's service medical records from his service in the United States Air Force for the period of December 1956 to December 1960. 2. The veteran should be afforded a VA examination, by an appropriate specialist, to determine the nature and severity any residuals of asbestos exposure. The claims folder must be made available to the examiner for review in conjunction with the examination and so noted in the examiner's report. All necessary tests and studies are to be performed, including pulmonary function tests, and all findings are to be reported in detail. All pertinent pathology should be noted in the examination report. In addition, the examiner should express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any diagnosed disorder, including any restrictive and/or obstructive lung disease, are related to an event, injury, or disease in service, including asbestos exposure while on ship. A complete rationale should be provided for all opinions expressed. 3. Then, readjudicate the claims. In particular, review all the evidence that was submitted since the October 2007 supplemental statement of the case (SSOC). In the event that the claim is not resolved to the satisfaction of the veteran, he should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The veteran 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 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. 2007). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs