Citation Nr: 1007102 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 00-05 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin disability. 3. Entitlement to service connection for a respiratory disability, to include as s result of asbestos exposure. 4. Entitlement to service connection for a left shoulder disability. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disability. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for gastrointestinal disability. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sinus disability. 8. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a disorder manifested by headaches. 9. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a vision disorder. 10. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for disability resulting from exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to February 1987. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Montgomery, Alabama, (hereinafter RO). The case was remanded by the Board in July 2005 and June 2007, and is now ready for appellate review of the issues of entitlement to service connection for a psychiatric disorder to include PTSD, a respiratory disability, a skin disability, and a left shoulder disability. The claims with respect to the petitions to reopen the claims for service connection for a heart disability, gastrointestinal disability, sinus disability, disorder manifested by headaches, a vision disorder and disability resulting from exposure to herbicides addressed in the REMAND portion of the decision below require additional development and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A medical history collected coincident with separation from service demonstrated anxiety and a VA examiner has linked current disability due to generalized anxiety disorder to service. 2. Respiratory complaints to include shortness of breath were demonstrated during service and a VA examiner opined the currently diagnosed chronic obstructive pulmonary disease (COPD) was manifested in service. 3. There is no competent evidence linking a current skin disability to service. 4. There is no competent evidence linking a left shoulder disability to service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, generalized anxiety disorder and COPD were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.300 (b)(1), 3.303 (2009). 2. A current skin disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 3. A current left shoulder disability was not incurred in or aggravated by service and arthritis of the left shoulder may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The duty to notify was fulfilled with respect to the issues adjudicated herein by letters dated in February 2004 and December 2007 that informed the appellant of the information and evidence necessary to prevail in his claims adjudicated below. As for the duty to assist, the service treatment reports and clinical reports have been obtained as have reports from the VA medical examinations and medical opinions with respect to the issues decided below requested in the June 2007 Board remand. Because there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims adjudicated below, the duty to assist has been fulfilled. II. Legal Criteria/Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). 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) (West 2002); 38 C.F.R. § 3.102 (2009). 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. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. There are some disabilities, including arthritis, for which service connection may be presumed if the disorder is manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) 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). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). A. Psychiatric Disorder The pertinent evidence includes reports from a medical history completed in December 1986 prior to separation from service reflecting that the Veteran had trouble with sleep and anxiety. After service, VA treatment reports dated from 1996 reflect treatment for anxiety, and the Veteran was admitted as an inpatient for chest pain felt to be possibly due to anxiety in January 1996. A February 1996 VA outpatient treatment report showed the Veteran complaining about depression, insomnia and being nervous "all the time" since 1974. Additional pertinent evidence is contained in the reports from a July 2009 VA psychiatric examination, with the examiner noting that the claims file had been reviewed prior to the examination, "in particular" the December 1986 service treatment report noted above. The assessment by the examiner was that the Veteran described a "generally anxious state" that had been persistent since the early 1970s, and that the Veteran's symptoms "appear to best be defined as a generalized anxiety disorder rather than post-traumatic stress disorder" and that "[b]ased on his description, it appears to have started in the military." The examiner noted "[t]he regimented style of the military appeared to help him control his symptoms for many years. When he lost the regimented style of the military with retirement, it appears that he had a dramatic increase in symptomatology." The diagnosis on Axis I following the examination was generalized anxiety disorder, and the examiner found that this condition was "more likely than not related to his military service." Unless the preponderance of the evidence is against the Veteran's claim, it cannot be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. While there is some negative evidence of record, anxiety is demonstrated in service and the record reflects no medical opinion to contradict the July 2009 VA opinion set forth above. As such, and resolving all reasonable doubt in the Veteran's favor, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that service connection for generalized anxiety disorder may be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. B. Respiratory Disability Official service department records reflect that the Veteran served in the United States Navy for many years as a mechanic, and the service included sea duty. A Medical Surveillance Questionnaire completed during service notes potential exposure to asbestos for work performed from May 1965 to December 1965 and June 1970 to September 1970. A September 1985 Asbestos Medical Surveillance Program report, noting that all personnel who had been significantly exposed to asbestos were to be included in such a program, showed the Veteran reporting that he had worked directly with asbestos, "[t]ak[]ing down and installing" the substance for a year, for 20 days a month. He also noted on this report that he smoked cigarettes, and another service treatment report noted the Veteran smoked 40 cigarettes a day. A March 1986 report prepared for the Commanding Officer of the Navy Environmental Health Center showed the Veteran reporting that he was exposed to asbestos on a regular basis. It was noted that spirometry showed FVC and FEV1, in liters, to 4.26 and 3.17, respectively. Given the in-service evidence as set forth above, the Board will assume for the purposes of this decision that the Veteran was exposed to asbestos during service. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Manual M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal, and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). Notwithstanding the above, the issue in the case is whether there is any competent evidence showing that the Veteran has a pulmonary disorder which can be related to asbestos exposure during service or any respiratory dysfunction shown therein. It is noted that the December 1986 medical history collected prior to separation from service showed the Veteran reporting shortness of breath "all the time" for the previous two to three years. An August 2009 VA opinion found that the Veteran had COPD which the examiner stated was at least as likely as not present at the time of the Veteran's separation from the military. Again, while there is some negative evidence with respect to this issue, unless the preponderance of the evidence is against the Veteran's claim, it cannot be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Given the positive in-service evidence and August 2009 VA opinion set forth above, the positive and negative evidence is at a minimum in relative balance; as such, it cannot be said that that the preponderance of the evidence is against the claim for service connection for a respiratory disorder. Therefore and after resolving all reasonable doubt in the Veteran's favor as is required by the controlling legal criteria, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that service connection for COPD may be granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. C. Skin Disability The service treatment reports show treatment for a rash in February 1983 involving the ankles, trunk and arms with an impression of dermatitis and eczema. The medical history completed in December 1986 prior to separation from service noted seborrheic keratosis said to not be disabling at that time. The post-service evidence includes reports from a July 2008 VA examination that was documented to have been preceded by a review of the claims file. The Veteran stated following a year of treatment with a type of dermatologic cream after he developed a rash in 1983, there had been no recurrence of the rash or any related symptoms. The Veteran told the examiner that he had received no treatment for a skin rash since leaving the military. He reported that he had a groin rash between his scrotum and thigh area since the military that he has treated locally, but the examiner noted that his review of the claims file did not reveal such a rash in service. It was noted that review of the claims file showed "very little" documentation of a skin rash from the time of service separation until he was first prescribed medication in 1998. The examination of the skin in July 2008 showed a moist rash in the groin area consistent with a diagnosis of intertrigo and several nevus cell nevi and keratotic lesions of the trunk. It was noted that there was no evidence of eczema at that time. As to whether the Veteran's skin rash demonstrated at the time of the July 2008 VA examination was related to service, the examiner stated that "it would be mere speculation" to state that the current skin rash was related to service. As support for this conclusion, the examiner referenced the fact that several service treatment reports showed there to be no skin rashes, particularly upon the periodic examinations conducted therein. (Review of the examinations of the skin conducted during periodic examinations in service in July 1968, December 1974, December 1980, and September 1982 did not reflect a skin rash.) As such, he stated "in the absence of documented chronicity and continuity of care" for a skin rash it was less likely than not that the skin rashes were incurred in service. Review of the remaining evidence reveals no evidence linking a current skin disability to service. As for the Veteran's assertions that he has a skin disability that is related to service, such assertions cannot be used to establish a claim as a layperson is not qualified to render a medical opinion regarding the etiology of disorders and disabilities. Espiritu; cf. Jandreau. In short, the Board finds that the lay statements in the present case are outweighed by the negative VA medical opinion rendered in July 2008 and the lack of any other competent medical evidence to support a conclusion that there is an etiologic relationship between a current skin disorder and service. As such, the claim for service connection for a skin disability must be denied. Hickson, supra. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for a skin disability, the doctrine is not for application. Gilbert, supra. D. Left Shoulder Disability The service treatment reports reflect that a medical history completed in December 1986 noted that the Veteran suffered from recurrent shoulder pain, a condition said to not be disabling at that time. No treatment for a shoulder disability during service is shown. The post service evidence includes reports from a series of VA examinations conducted in May 1996, none of which reflected a shoulder disability or complaints related thereto. The first clinical reference to a left shoulder disorder is contained in a report from an October 2000 VA outpatient treatment report that showed the Veteran reporting left shoulder pain of approximately 20 years in duration. The examination of the left shoulder showed full motion with moderate crepitus on elevation. The impression was "[s]houlder pain, probably secondary to cervical radiculitis and associated cervical spondylosis, consider an additional contribution from tendinitis and bursitis of the shoulder." A July 2002 VA outpatient treatment report indicated a Magnetic Resonance Imaging of the left shoulder showed some acromiclavicular joint inflammation and mild arthritis. At the aforementioned July 2008 VA examination, the Veteran reported that he has had chronic left shoulder pain since dislocating the shoulder in the Navy. X-rays of the left shoulder conducted during the examination revealed acromioclavicular joint degeneration. The examiner concluded that given the Veteran's "original X-ray of his shoulder [in] 2000 showing no arthritic changes and a MRI in 2002 finally showing mild degenerative changes, it would be mere speculation [to conclude] without [evidence of] continuity and chronicity that any injury [the Veteran] had while he was in the service would had led to the degenerative changes the one[] normally would see as a person ages." Review of the remaining evidence reveals no medical evidence linking a current left shoulder disability to service. As for the Veteran's assertions that he has a left shoulder disability that is related to service, it is again noted that such assertions cannot be used to establish a claim as a layperson is not qualified to render a medical opinion regarding the etiology of disorders and disabilities. Espiritu; cf. Jandreau. In short, the Board finds that the lay statements in the present case are outweighed by the negative VA medical opinion rendered in July 2008 and the lack of any other competent medical evidence to support a conclusion that there is an etiologic relationship between a current left shoulder disability and service. As such, the claim for service connection for a left shoulder disability must be denied. Hickson, supra. As the preponderance of the evidence is against the Veteran's claim for service connection for a left shoulder disability, the doctrine of reasonable doubt is not for application. Gilbert, supra. ORDER Entitlement to service connection for generalized anxiety disorder is granted. Entitlement to service connection for COPD is granted. Entitlement to service connection for a skin disability is denied. Entitlement to service connection for a left shoulder disability is denied. REMAND With respect to the petitions to reopen the claims for service connection that were previously denied, the Board in its July 2005 and June 2007 remands specifically noted that these petitions were filed prior to August 29, 2001, and instructed the RO to readjudicate them under the former standard set forth in 38 C.F.R. § 3.156 in effect prior to August 29, 2001. However, the December 2007 notification letter issued subsequent to the June 2007 remand included the current criteria listed at 38 C.F.R. § 3.156 in effect since August 29, 2001, and the current criteria were also applied in the November 2009 supplemental statement of the case. Accordingly, as the Board is required to insure compliance with the instructions of it remands, the RO will be requested upon remand to notify the Veteran of the criteria of 38 C.F.R. § 3.156 in effect prior to August 29, 2001, and adjudicate the petitions to reopen under these criteria. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran and his representative a notification letter that complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should explain the basis of the prior denials of service connection for a heart disability, gastrointestinal disability, sinus disability, disorder manifested by headaches, a vision disorder and disability resulting from exposure to herbicides and indicate what evidence is necessary to substantiate that element or elements required to establish service connection that were found insufficient. This letter should explain that for the purposes of this appeal, new and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 2. Thereafter, the claims that have been remanded must be readjudicated by the RO pursuant to the pre August 29, 2001, version of 38 C.F.R. § 3.156(a). If the above readjudication does not result in a complete grant of all benefits sought by the Veteran in connection with the claims that have been remanded, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs