Citation Nr: 0906123 Decision Date: 02/19/09 Archive Date: 02/27/09 DOCKET NO. 07-25 408 ) 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 skin cancer/skin condition. 3. Entitlement to service connection for a pulmonary disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to July 1969 and from May 2002 to February 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. FINDING OF FACT The Veteran does not have PTSD, skin cancer or a chronic skin disease, and/or a pulmonary disability. CONCLUSION OF LAW The criteria for service connection for PTSD, skin cancer/chronic skin disease, and a pulmonary disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2008). In general, service connection requires (1) 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including malignant tumors, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309 (2008). PTSD Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed inservice stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM- IV). Id., see also 38 C.F.R. § 4.125(a) (2007). In March 2006, the Veteran underwent a VA examination regarding his claimed PTSD. The examiner indicated that he had conducted a file review, clinical interview and mental status examination. He recorded a detailed account of the clinical interview. The examiner determined that the Veteran did not have PTSD. He provided an Axis I DSM-IV diagnosis of "marriage relationship problems." Significantly the examiner explained his findings in terms of the DSM-IV stating that the Veteran did not meet conditions A or B for a diagnosis of PTSD. There is no evidence of record that the Veteran has ever been diagnosed with PTSD. The veteran indicated in his March 2005 claim that he had never been treated for PTSD. In a PTSD questionnaire, dated in March 2005, the Veteran reported that that he had never been diagnosed with PTSD. Thus, the only medical evidence regarding a PTSD diagnosis is affirmative evidence that the Veteran does not have PTSD. As discussed above, entitlement to service connection for disease or injury is limited to cases in which the Veteran has the claimed disability. See 38 U.S.C.A. § 1110. Because the Veteran does not have PTSD his claim for service connection for PTSD must be denied. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As all evidence is unfavorable to the Veteran's claim, the benefit-of- the-doubt rule is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008). Pulmonary disability claim In his March 2005 application for compensation benefits, the Veteran indicated that he was claiming service connection for a "Pulmonary cond[ition] due to Toxic chem[icals]", with treatment at Port Hueneme. Port Hueneme is the location that the Veteran identified as where he left active service in July 1969. The Veteran has indicated that he was exposed to asbestos and an environmental hazard. There is no specific statutory guidance with regard to asbestos related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court of Veterans Appeals (now the Court of Appeals for Veterans Claims and hereinafter the Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV, lists some of the major occupations involving exposure to asbestos including 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, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers 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). With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). It should be noted that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in service by reason of having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed.Cir. 2002); VAOPGPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33422 (2000). Service treatment records, including records from the Veteran's service with the National Guard, contain no reports of symptoms or findings of pulmonary disease. In a November 1965 report of induction medical history the Veteran indicated that he had asthma at four or five years of age. A July 1969 separation report of medical examination shows normal clinical evaluations of the Veteran's lungs and chest. Overall, this is evidence that the Veteran did not have a pulmonary disability or symptoms of a pulmonary disability during service. National Guard records include a September 1992 report of medical history in which the Veteran indicated that he had a current or past history of asthma. There is no indication that this referred to anything other than his childhood asthma reported in 1965. In an October 2000 report of medical history, the Veteran indicated that he did not have either a past or current history of asthma, shortness of breath, chronic cough, or pain or pressure in the chest, or exposure to asbestos or toxic chemicals. An associated report of medical examination shows normal clinical evaluations of the Veteran's lungs and chest. As he reported in October 2000 that he did not have asthma, and there is no other indication that he has had asthma, it is reasonable to assume that even if he did have asthma in 1992, he has not had that condition at any time relevant to his claim on appeal, which was received by VA in March 2005. VA outpatient treatment records are associated with the claims file but are absent for any evidence of treatment for pulmonary symptoms or disease. During the March 2006 VA PTSD examination, the Veteran reported that he was quite healthy. This is some evidence that the Veteran has no pulmonary disability. The only indication that the Veteran was exposed to asbestos or an environmental hazard is that he checked option boxes on his application for VA benefits received in March 2005. Next to the option box for asbestos exposure, the Veteran provided "US NAVY ?". He also indicated that he was exposed to an environmental hazard in the Gulf War but had no disability at present. In answer to the question "What was the hazard?", he provided "3rd world country EGYPT". The Veteran's responses are evidence that the Veteran has merely speculated as to exposure to asbestos or an environmental hazard but has no knowledge of any such exposure. In a March 2005 questionnaire specific to asbestos and toxic substances exposure, the Veteran listed his duty occupations as "Security", "watch" and "electrician". Service personnel records show that the veteran had service with a mobile construction battalion as an electrician. He did not list any of the occupations for which asbestos exposure is likely. This, together with the Veteran's report in the October 2000 report of medical history that he had had no past or current history of exposure to asbestos or toxic chemicals is evidence against a finding that the Veteran was exposed to asbestos during service. In that questionnaire, the Veteran indicated that he was claiming disability for a pulmonary condition and that he had been exposed to "toxics" while serving in the U.S. Navy in 1969, noting the toxic chemicals as lead paint and antifungal - antimold paints. This is more evidence that the Veteran was not exposed to asbestos during service. There is no evidence of record showing an association between pulmonary disease and an exposure to lead based, antifungal, or antimold, paint. However, the Board need not focus on any such exposure as there is no evidence that the Veteran has the claimed pulmonary disability. That is, even if it were shown that the Veteran was exposed to asbestos, or for that matter some toxic substance, his claim would fail because there is no evidence that he has the claimed disability. The only indication that the Veteran has a pulmonary disability is his own contention. In his July 2007 substantive appeal, the Veteran correctly reported that the July 1969 report of separation medical examination contained the annotation that a chest x-ray showed hilar and peripheral calcifications, not considered disabling, and that this was not listed on his entrance report of medical examination. He also contended that "VAMC did a pulmonary function test which resulted in 80% volume." As stated above, VA treatment records do not show that the Veteran has a pulmonary disability and, regardless of the annotation of hilar and peripheral calcifications on the report of separation examination, there is no evidence that this was evidence of disease. The Veteran has not described any symptoms of a pulmonary disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). His self diagnosis of a pulmonary condition and his interpretations of diagnostic test results are not competent evidence because he has not demonstrated that he has other than the medical knowledge of a layperson. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). This is not to say that laypersons can never provide competent evidence as to what, at first glance, may appear to be a medical question. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr and Jandreau, the questions involved diagnoses of varicose veins and a dislocated shoulder, respectively. However, the Court has found that whether a Veteran suffered from asthma is not subject to the opinion of a layperson. See Layno, 6 Vet. App. at 470-71. Similarly, in Woehlaert v. Nicholson, 21 Vet. App. 456 (2007), the Court stated that rheumatic fever is not a condition capable of lay diagnosis. Simply stated, lay opinions as to complex medical questions are not competent evidence. The diagnosis of a pulmonary disability is nearly identical to the issue addressed in Layno and is more similar in complexity to asthma and rheumatic fever than to a dislocated shoulder and varicose veins. Hence, the Veteran's self- diagnosis is not competent evidence. The record is absent for any evidence that the Veteran has a pulmonary disability. As stated above, an essential element of service connection is that the Veteran has the claimed disability. As the Veteran has produced no evidence that he has any pulmonary disease, his claim must be denied. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008). Skin claim In his March 2005 application for compensation benefits, the Veteran indicated that he was claiming service connection for "Skin cancer/condi[tion] due to sun and AO [Agent Orange]" and indicated that he was treated at the VA Medical Center (VAMC) in Roseburg. Of note is that certain diseases are presumed to have been caused by exposure to the herbicide agent referred to as "Agent Orange" during service in the Republic of Vietnam during the Vietnam conflict. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. However, the presumption simple relieves the claimant of showing a nexus between a current disease and his service. As with the Veteran's other claims in this case, there is no competent evidence that the Veteran has a skin disability. Therefore, no discussion is necessary as to whether he was exposed to Agent Orange during service. Service treatment records contain no mention of symptoms of or treatment for skin disease. A July 1969 separation report of separation medical examination shows a normal clinical evaluation of the Veteran's skin. In the associated report of medical history, the Veteran indicated that he did not then have nor had ever had tumor, growth, cyst, or cancer. The September 2000 Report of medical examination, from the Veteran's service with the National Guard, includes a normal clinical evaluation of his skin. In the associated report of medical history, the Veteran indicated that he had no past or current history of skin diseases, or tumor, growth, cyst or cancer. Treatment records from the Roseburg VAMC are of record but contain no mention of skin cancer or any skin disease. During the March 2006 VA PTSD examination, the Veteran reported that he was quite healthy. The service treatment records and VA treatment records provide evidence that the veteran does not have skin cancer or a chronic skin disease. There is no competent evidence to the contrary. For the same reasons stated above with regard to the Veteran's claimed pulmonary disability, he is not competent to self diagnose skin cancer or a skin disease. The Veteran has not offered any statements regarding symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Rather he has simply contended that that he has either skin cancer or a skin condition. In short, the Veteran's statements regarding skin cancer/skin condition are not competent evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Veteran has produced no competent evidence of skin cancer or a skin disease. Nor has he provided information regarding evidence of such or an indication of a current skin disability other than his statements, which are outweighed by the medical evidence of record. All treatment records are absent for statements of skin disease. In the absence of proof that he has a skin disability, there can be no valid claim. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Because all evidence shows that the veteran has never had a skin disability, the appeal as to this issue must be denied. Given that all of the evidence of record is against granting service connection for a skin disability, the benefit-of-the- doubt rule is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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. 38 C.F.R. § 3.159(b)(1). 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the Veteran's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed disabilities. Here, the remaining VCAA duty to notify was satisfied by way of letters sent to the Veteran in June and November 2005 that fully addressed all three notice elements and were sent prior to the initial RO decision in this matter. The June 2005 letter informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. In the August 2005 letter, the RO provided the Veteran with additional notice specific to his claim for service connection for PTSD. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment and personnel record as well as VA treatment records. In March 2006, VA afforded the Veteran an examination with regard to his claimed PTSD. A medical examination was not afforded the Veteran with regard to his claims for service connection for skin and pulmonary disabilities, nor was an opinion obtained. On his application for VA benefits, the Veteran checked a selection box for asbestos exposure. However, in a questionnaire specific to asbestos and toxic substances exposure he in reported none of the occupations for which asbestos exposure is likely and in an October 2000 report of medical examination for the National Guard he indicated that he had no past or current history of asbestos or toxic chemical exposure. The Board finds that the Veteran's mere assertion in an application form of exposure to toxic substances or asbestos, contradicted by his own reported history and unsupported by any other evidence, does not trigger VA's duty to afford the Veteran a VA examination or obtain an opinion. Because there is no competent evidence that the Veteran has either a skin disability or a pulmonary disability, VA has no duty to afford him a VA examination or obtain a medical opinion with regard to these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs