Citation Nr: 0841622	
Decision Date: 12/04/08    Archive Date: 12/17/08

DOCKET NO.  05-36 205	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, 
Oregon


THE ISSUES

1.  Entitlement to service connection for post-traumatic 
stress disorder (PTSD).

2.  Entitlement to service connection for a pulmonary 
disorder secondary to exposure to asbestos. 


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' 
Affairs


ATTORNEY FOR THE BOARD

Scott Shoreman, Associate Counsel





INTRODUCTION

The veteran had active service from February 1963 to April 
1967.

This matter comes before the Board of Veterans' Appeals 
(Board) from a February 2004 rating decision by the above 
Department of Veterans Affairs (VA) Regional Office (RO).

Service connection is currently in effect for a low back 
disorder, rated as 60 percent disabling; and for hearing loss 
and tinnitus, each rated at 10 percent.  The veteran has been 
awarded a total (100 percent) rating based on individual 
unemployability due to service-connected disabilities, 
effective from October 1998.


FINDINGS OF FACT

1.  The competent and probative medical evidence 
preponderates against a finding that the veteran has a 
current diagnosis of PTSD.

2.  The competent and probative medical evidence 
preponderates against a finding that the veteran has a 
pulmonary disorder secondary to exposure to asbestos.


CONCLUSIONS OF LAW

1.  PTSD was not incurred in or aggravated by service.  38 
U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & 
Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2008).

2.  A pulmonary disorder secondary to exposure to asbestos 
was not incurred in or aggravated by service.  38 U.S.C.A. §§ 
1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 
3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating 
their claims for VA benefits, as codified in pertinent part 
at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 
2008); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2008).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 
notice from 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; and 
(3) that the claimant is expected to provide in accordance 
with 38 C.F.R. § 3.159(b)(1) (2008).  This notice must be 
provided prior to an initial unfavorable decision on a claim 
by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

If complete notice is not provided until after the initial 
adjudication, such a timing error can be cured by subsequent 
legally adequate VCAA notice, followed by readjudication of 
the claim, as in a Statement of the Case (SOC) or 
Supplemental SOC (SSOC).  Moreover, where there is an uncured 
timing defect in the notice, subsequent action by the RO 
which provides the claimant a meaningful opportunity to 
participate in the processing of the claim can prevent any 
such defect from being prejudicial.  Mayfield v. Nicholson, 
499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. 
Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Court of Appeals for the Federal Circuit has held 
that, if a claimant can demonstrate error in VCAA notice, 
such error should be presumed to be prejudicial.  VA then 
bears the burden of rebutting the presumption, by showing 
that the essential fairness of the adjudication has not been 
affected because, for example, actual knowledge by the 
claimant cured the notice defect, a reasonable person would 
have understood what was needed, or the benefits sought 
cannot be granted as a matter of law.  Sanders v. Nicholson, 
487 F.3d 881 (Fed. Cir. 2007); petition for cert. granted 
(U.S. June 16, 2008) (No. 07-1209).

In September 2003 VA sent the veteran a letter informing him 
of the types of evidence needed to substantiate his claim and 
its duty to assist him in substantiating his claim under the 
VCAA.  The letter informed the veteran that VA would assist 
him in obtaining evidence necessary to support his claim, 
such as medical records, employment records, or records from 
other Federal agencies.  He was advised that it is his 
responsibility to provide or identify, and furnish 
authorization where necessary for the RO to obtain, any 
supportive evidence pertinent to his claim.  See 38 C.F.R. § 
3.159(b)(1).  Although no longer required, the appellant was 
also asked to submit evidence and/or information in his 
possession to the RO.

The Board finds that the content of the letter provided to 
the veteran complied with the requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to 
notify and assist.  In addition, the February 2004 rating 
decision, September 2005 SOC, and April 2008 SSOC explained 
the basis for the RO's action, and the SOC and SSOC provided 
him with additional 60-day periods to submit more evidence.  
It appears that all obtainable evidence identified by the 
veteran relative to his claim has been obtained and 
associated with the claims file, and that neither he nor his 
representative has identified any other pertinent evidence, 
not already of record, which would need to be obtained for a 
fair disposition of this appeal.  It is therefore the Board's 
conclusion that the veteran has been provided with every 
opportunity to submit evidence and argument in support of his 
claims, and to respond to VA notices.

Moreover, the claimant has not demonstrated any error in VCAA 
notice, and therefore the presumption of prejudicial error as 
to such notice does not arise in this case.  See Sanders v. 
Nicholson, supra.

In addition to the foregoing harmless-error analysis, we note 
that the decision of the Court in Dingess v. Nicholson, 19 
Vet. App. 473 (2006) requires more extensive notice in claims 
for compensation, e.g., as to potential downstream issues 
such as disability rating and effective date.  This 
requirement was fulfilled in an October 2008 letter which VA 
sent to the veteran.  In any event, since the claims for 
service connection are herein denied, such issues are moot.

The veteran did not have a VA examination for PTSD.  In March 
2008 he reported late for an examination for which he said he 
had received no notification.  He asked for the examination 
for be rescheduled, and when VA called to reschedule, he said 
he would be out of state until June 2008.  The veteran was to 
call the RO to schedule an examination when he returned, but 
the record does not indicate that he did so.  In addition, 
the Board finds that there is already sufficient medical 
evidence to decide the claim.  In McClendon v. Nicholson, 20 
Vet. App. 79 (2006), the Court reviewed the criteria for 
determining when an examination is required by applicable 
regulation and how the Board applies 38 C.F.R. § 3.159(c).  
The three salient benchmarks are: competent evidence of a 
current disability or recurrent symptoms; establishment of an 
in-service event, injury, or disease; and indication that the 
current disability may be associated with an in-service 
event.  The Board finds that there is no competent evidence 
of current PTSD.  Therefore, the evidence of record does not 
trigger the necessity of an examination in order to decide 
the claim on the merits.  See 38 C.F.R. § 3.159(c).

Accordingly, we find that VA has satisfied its duty to assist 
the veteran in apprising him as to the evidence needed, and 
in obtaining evidence pertinent to his claim under the VCAA.  
Therefore no useful purpose would be served in remanding this 
matter for yet more development.  Such a remand would result 
in unnecessarily imposing additional burdens on VA, with no 
additional benefits flowing to the veteran.  The Court of 
Appeals for Veteran Claims has held that such remands are to 
be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

It is the Board's responsibility to evaluate the entire 
record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is 
an approximate balance in the 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 to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 
3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
of Appeals for Veterans Claims held that an appellant need 
only demonstrate that there is an "approximate balance of 
positive and negative evidence" in order to prevail.  The 
Court has also stated, "It is clear that to deny a claim on 
its merits, the evidence must preponderate against the 
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 
citing Gilbert.

II.  Relevant Law, Factual Background, and Analysis

Service connection may be granted for disability which is the 
result of disease or injury incurred in or aggravated by 
service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2008); 
38 C.F.R. § 3.303(a) (2008). 

Where there is a chronic disease shown as such in service or 
within the presumptive period under 38 C.F.R. § 3.307 so as 
to permit a finding of service connection, subsequent 
manifestations of the same chronic disease at any later date, 
however remote, are service connected, unless clearly 
attributable to intercurrent causes.  This rule does not mean 
that any manifestation in service will permit service 
connection.  To show 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 a diagnosis including the word 
"chronic."  38 C.F.R. § 3.303(b).  When the disease 
identity is established, there is no requirement of 
evidentiary showing of continuity.  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 be granted for disease that is 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. 
§ 3.303(d).

The U.S. Court of Appeals for Veterans Claims has held that, 
in order to prevail on the issue of service connection, there 
must (1) be medical evidence of a current disability; (2) 
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and 
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.  
Hickson v. West, 12 Vet. App. 247, 253 (1999).

A.  Service Connection for PTSD

In order for service connection to be awarded for PTSD, three 
elements must be present: (1) a current medical diagnosis of 
PTSD; (2) medical evidence of a causal nexus between current 
symptomatology and a claimed in-service stressor; and 
(3) credible supporting evidence that the claimed in-service 
stressor(s) actually occurred.  38 C.F.R. § 3.304(f); Cohen 
v. Brown, 10 Vet. App 128 (1997).  With respect to the second 
element, if the evidence shows that the veteran did not serve 
in combat with enemy forces during service, or if there is a 
determination that the veteran engaged in combat but the 
claimed stressor is not related to such combat, there must be 
independent evidence to corroborate the veteran's statement 
as to the occurrence of the claimed stressor.  Doran v. 
Brown, 6 Vet. App. 283, 289 (1994).  The veteran's testimony, 
by itself, cannot, as a matter of law, establish the 
occurrence of a non-combat stressor.  See Dizoglio v. Brown, 
9 Vet. App. 163, 166 (1996).

Absent proof of the existence of the disability being 
claimed, there can be no valid claim.  See Gilpin v. West, 
155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 
1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 
(1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  The 
Board recognizes that the Court of Appeals for Veterans 
Claims has held that the presence of a chronic disability at 
any time during the claim process can justify a grant of 
service connection, even where the most recent diagnosis is 
negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  
However, where, as here, the overall evidence of record fails 
to support a diagnosis of the claimed condition at any time 
during the claim, that holding would not be applicable.

The veteran's personnel records show that he served on the 
USS Midway and USS Everett F. Larson, and that he was on the 
USS Midway in the Vietnam area of operations during the 
Vietnam era.  The veteran's service treatment records (STRs) 
do not show any complaints of, or treatment for, any 
psychiatric disorders.  At his April 1967 discharge 
examination he was found to be normal from a psychiatric 
standpoint.

The veteran had a private November 1995 psychiatric 
evaluation for which he was referred by his primary care 
doctor due to a depressed mood.  He discussed his wife's 
diagnosis of cirrhosis in May 1994, and expressed feelings of 
frustration and exhaustion.

In December 1998 the veteran had a private psychiatric 
evaluation for a Social Security disability claim.  He spoke 
tearfully of ongoing symptoms of depression since the death 
of his wife, and I.A.F., M.D., the examining psychiatrist, 
felt that the veteran had not fully recovered emotionally.  
The veteran's symptoms included prominent low energy and 
motivation, anhedonia, and feelings of hopelessness.  He 
reported that he had been in outpatient counseling until 
approximately a year before but had to drop out because he 
lost his insurance coverage.  He had tried an antidepressant 
medication but stopped taking it when he lost his insurance.  
In 1995 the veteran was suicidal and put a gun to his head, 
causing him to be hospitalized.  He had not attempted suicide 
or been hospitalized since.  He had low motivation to do his 
usual household activities and he noticed a severe drop off 
in his social and recreational pursuits as a result of his 
depressive feelings.  Approximately two and a half years 
earlier, he had lost his job because he was unable to keep up 
with his work due to depression.  Dr. F diagnosed the veteran 
with major depressive disorder, chronic and recurrent, and 
noted that he appeared "quite profoundly depressed."

In his March 2004 PTSD questionnaire the veteran wrote that 
pilots with whom he had been shipmates were regularly shot 
down during missions, and that others would have to crash 
land on the flight deck after their aircraft were damaged by 
enemy fire.  This would happen for weeks on end, and the 
veteran wrote that it still has a major effect on him because 
the thoughts, memories, and fears never go away.  There was 
also an incident in which one of his friends was knocked 
overboard during a refueling, and although the friend was 
saved this incident had instilled fear in the veteran.

We recognize the sincerity of the arguments advanced by the 
veteran that he has PTSD which should be service connected.  
However, the resolution of issues which involve medical 
knowledge, such as the diagnosis of a disability and the 
determination of medical etiology, requires professional 
evidence.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 
(1992).  It is true that the veteran's lay statements may be 
competent to support a claim for service connection by 
supporting the occurrence of lay-observable events or the 
presence of disability or symptoms of disability subject to 
lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. 
§§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 
1372 (Fed. Cir. 2007).  See also Buchanan v. Nicholson, 451 
F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as 
potentially competent to support presence of disability even 
where not corroborated by contemporaneous medical evidence).  
However, PTSD is a complex disorder which requires 
specialized training for a determination as to diagnosis and 
causation, and it is therefore not susceptible of lay 
opinions on etiology.  The Board notes that the record does 
not show that the veteran has been diagnosed with PTSD.

The Board expresses its appreciation for the veteran's 
service in the Vietnam area of operations.  However, in the 
absence of a diagnosis of PTSD in the evidentiary record, 
service connection for PTSD must be denied.  The Board need 
not evaluate the other elements necessary for service 
connection for PTSD, since the absence of one requirement 
means an award of service connection is not possible.  As the 
evidence preponderates against the claim for service 
connection for PTSD, the benefit-of-the-doubt doctrine is 
inapplicable, and the claim must be denied.  38 U.S.C.A. 
§ 5107(b); Gilbert, supra.

B.  Service Connection for Pulmonary Disorder 
Secondary to Exposure to Asbestos

There is no specific statutory or regulatory guidance with 
regard to claims for service connection for asbestos-related 
diseases.  However, in 1988 VA issued a circular on asbestos-
related diseases which 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 (Oct. 3, 1997) (hereinafter "M21-1").  
Subsequently, an opinion by the VA General Counsel discussed 
the development of asbestos claims.  VAOPGCPREC 4-2000 (April 
13, 2000).

The Board notes that the aforementioned provisions of M21-1 
were rescinded and reissued as amended in a manual rewrite 
(MR) in 2005.  See M21-1MR, Part IV, Subpart ii, Chap. 1, 
Sec. H, Para. 29, entitled "Developing Claims for Service 
Connection for Asbestos-Related Diseases," and Part IV, 
Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service 
Connection for Disabilities Resulting from Exposure to 
Asbestos."

VA must analyze the veteran's claim of entitlement to service 
connection for asbestosis under these administrative 
protocols using the following criteria.  Ennis v. Brown, 4 
Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 
432 (1993).  The latency period for asbestos-related diseases 
varies from 10 to 45 or more years between first exposure and 
development of disease.  The exposure may have been direct or 
indirect, and the extent or duration of exposure is not a 
factor.  M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 
29a.

The manual provisions acknowledge that inhalation of asbestos 
fibers and/or particles can result in fibrosis and tumors, 
and produce pleural effusions and fibrosis, pleural plaques, 
mesotheliomas of the pleura and peritoneum, and cancer of the 
lung, gastrointestinal tract, larynx, pharynx and urogenital 
system (except the prostate), with the most common resulting 
disease being interstitial pulmonary fibrosis (asbestosis).  
Also noted is the increased risk of bronchial cancer in 
individuals who smoke cigarettes and have had prior asbestos 
exposure.  As to occupational exposure, exposure to asbestos 
has been shown in insulation and shipyard workers, and 
others.  The clinical diagnosis of asbestosis requires a 
history of exposure and radiographic evidence of parenchymal 
lung disease.  M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, 
Para. 9a-f.

The manual further provides that VA must determine whether 
military records demonstrate evidence of asbestos exposure in 
service; whether there is pre-service and/or post-service 
evidence of occupational or other asbestos exposure; and then 
make a determination as to the relationship between asbestos 
exposure and the claimed diseases, keeping in mind the 
latency and exposure information pertinent to the veteran.  
M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h.

With further reference to disease of the lungs, for claims 
received by VA after June 9, 1988, a disability or death will 
not be considered service connected on the basis that it 
resulted from injury or disease attributable to the veteran's 
use of tobacco products during service.  This does not apply 
if the disability or death is otherwise shown to have been 
incurred or aggravated during service.  38 U.S.C.A. § 1103; 
38 C.F.R. § 3.300.

The veteran wrote in his April 2004 asbestos exposure 
questionnaire that he was exposed to asbestos in his duties 
as a boilerman during his active service on Navy ships.  His 
duties included the removal and replacement of asbestos 
insulation from steam lines, boiler repair, and the removal 
of asbestos material from boiler tubes.  He wrote that 
asbestos fibers were always in the air inside the fire room.  
The RO determined in the September 2005 SOC that the veteran 
was exposed to asbestos in service, and the Board concurs 
with that assessment.
 
The veteran's STRs do not show any treatment for, or 
complaints of, any pulmonary disorder.  At his April 1967 
discharge examination, his lungs and chest were clear.

In October 2003 the veteran had a VA pulmonary examination at 
which he said that he had a history of shortness of breath 
and chronic cough, non-productive for a number of years 
before becoming productive with clear phlegm.  He said that 
he smoked two packs of cigarettes a year for 12 to 15 years, 
quitting 30 to 35 years ago, and denied tuberculosis, 
pneumonia, hemotyphis, asthma, hay fever, or bronchitis.  The 
veteran felt that he had been having his symptoms for five 
years, and he described his history of asbestos exposure in 
service.  He said he would get short of breath on exertion, 
and was able to walk about 300 yards on level ground before 
having to stop to catch his breath.  He said that he was 
sometimes short of breath while at rest; he did not use 
oxygen, and denied having any incapacitation.

On clinical evaluation, the veteran was not having any 
difficulty breathing.  The examiner felt that, while there 
might be some minimal degree of limitation of thoracic 
excursions with deep breathing, there was no inspiratory or 
expiratory wheezing to suggest chronic obstructive pulmonary 
disease.  In addition, there were no adventitious pulmonary 
sounds.  A chest X-ray was normal for the veteran's age, and 
his performance on a pulmonary function test was described as 
good.  There was mildly reduced vital capacity, without 
evidence of airway obstruction.

At December 2006 VA treatment it was noted that the veteran 
had chronic obstructive pulmonary disease (COPD) and chronic 
bronchitis by history.  At the time of the treatment the 
veteran had a cough productive of clear tenacious phlegm 
without hemotysis.  It was noted that he wheezed at bedtime 
and early in the morning.  The veteran denied prior 
antibiotic treatment for bronchitis, and had no history of 
pneumonia.  It was noted that he had smoked from ages 16 to 
47, one to two packs a day, before quitting.  He was 
prescribed an ipratropium bromide inhaler.  A July 2007 X-ray 
of the veteran's chest was described as essentially normal.

After a careful review of the evidence of record, the Board 
finds that service connection for a pulmonary disorder 
secondary to exposure to asbestos has not been established.  
While the record shows that the veteran suffers from COPD and 
bronchitis, there is no indication from his VA examination or 
his treatment that he has a pulmonary disorder related to 
exposure to asbestos.

As above, the Board recognizes the sincerity of the arguments 
advanced by the veteran that he has a pulmonary disorder 
secondary to exposure to asbestos, which should be service 
connected.  However, the resolution of issues involving 
medical knowledge requires professional evidence.  See 
Espiritu, supra.  Certainly, the veteran's own statements may 
be competent to support a claim for service connection by 
supporting the occurrence of lay-observable events or the 
presence of disability or symptoms subject to lay observation 
such as breathing difficulty.  38 U.S.C.A. § 1153(a); 
38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau, supra.  See 
also Buchanan, supra.  However, pulmonary disorders require 
specialized training for a determination as to diagnosis and 
causation, and are therefore not susceptible of lay opinions 
on etiology.

As the evidence preponderates against the claim for service 
connection for a pulmonary disorder secondary to exposure to 
asbestos, the benefit-of-the-doubt doctrine is inapplicable, 
and the claim must be denied.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Service connection for PTSD is denied.

Service connection for a pulmonary disorder secondary to 
exposure to asbestos is denied.



______________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs