Citation Nr: 1123406	
Decision Date: 06/21/11    Archive Date: 06/28/11

DOCKET NO.  07-29 253	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 

2. Entitlement to service connection for asbestosis or an asbestosis-related disease.  


REPRESENTATION

Veteran represented by:	Alabama Department of Veterans Affairs


ATTORNEY FOR THE BOARD

H. A. Hoeft, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1969 to January 1971.  

The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  Jurisdiction has since been transferred to the Montgomery, Alabama RO.  

Although the Veteran filed a claim for service connection for PTSD, the Board has recharacterized the issue to whether service connection is warranted for an acquired psychiatric disorder, to include PTSD, as noted on the title page of this decision.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

The Board notes that the Veteran initially requested a Travel Board hearing; however, in a November 2010 statement, he subsequently withdrew this request.  

The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, 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.


FINDING OF FACT

There is no evidence of a current diagnosis of asbestosis or an asbestos-related disease, to include cancer.



CONCLUSION OF LAW

Asbestosis was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  

With respect to the claim adjudicated herein, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a January 2005 letter, sent prior to the initial unfavorable decision issued in May 2005, as well as a February 2010 letter advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information.   

The Board notes that the Veteran's claim was not readjudicated by the AOJ subsequent to the February 2010 letter; however, he did not submit any additional evidence relevant to the claim adjudicated herein after such letter was sent to him. Therefore, the failure by the AOJ to conduct a subsequent readjudication is not prejudicial because the result of such a readjudication on exactly the same evidence and law previously considered would be no different than the previous adjudication.  See generally Medrano v. Nicholson, 21 Vet. App. 165 (2007).

The Board further observes that the Veteran was not informed of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  Despite the inadequate notice provided to the Veteran on these two elements, the Board finds no prejudice to him in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby).  In this regard, because the Board concludes herein that the preponderance of the evidence is against the Veteran's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are moot.

Relevant to the duty to assist, the Veteran's service treatment and personnel records have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.  Here, it is noted that the Veteran has not alleged that he has received any treatment for the claimed condition through VA and a search for VA treatment at the VAMC Birmingham produced no results.  Moreover, while the Veteran was given multiple opportunities to submit additional medical evidence reflecting a current diagnosis of asbestosis, he did not do so.  See February 2010, VCAA Letter (providing the Veteran with an additional 60 days to submit evidence).  

The Board notes that the Veteran has not been provided with a VA examination in order to determine whether his claimed asbestosis is related to his military service.  However, as will be discussed below, there is no evidence that the Veteran has a current diagnosis of asbestosis or an asbestos-related disease.  Specifically, he has not provided any statements regarding his asbestosis symptomatology and the medical evidence of record is negative for any current complaints, treatment, or diagnosis referable to asbestosis or an asbestos-related disease.  Moreover, the Veteran has offered only conclusory statements regarding the incurrence of his claimed asbestosis.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination.  Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed.Cir. 2010).  Therefore, the Board finds that there is no indication that asbestosis or an asbestos-related disease, or persistent or recurrent symptoms of such disorders, may be associated with the Veteran's military service.  Thus, a remand for examination and/or opinion is not necessary to decide the claim.  See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required).

Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim.


II.  Analysis

The Veteran contends that he has asbestosis as a result of his military service.  He further asserts that he has both asbestosis and presumably related cancer.  Therefore, the Veteran alleges that service connection is warranted for such disorders.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic. " Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b).

Service connection may also be granted for a 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).

Regarding asbestos-related diseases, there is no specific statutory or regulatory provision, pertaining to exposure to asbestos.  However, the VA Adjudication Procedure Manual, M21-1 (M21-1) [in December 2005, the M21-1 was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1], the opinions of the Court, and VA's General Counsel have a general framework.

In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. 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, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate claims of service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

The M21-1 provides that when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (M21-1, Part III, par. 5.13(b); M21-1, Part VI, par. 7.21(d)(1); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure; and determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (M21-1, Part VI, par. 7.21(d)(1).

The M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, 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). M21-1, Part VI, par. 7.21(a)(1) & (2).

Also, the M21-1 provides that for a clinical diagnosis of asbestosis, the record must show a history of exposure and radiographic evidence of parenchymal lung disease (M21-1, Part VI, par. 7.21(c)).

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b).

The Veteran's service treatment records, including the reports of entrance and separation examinations, contain no complaint, finding, history, diagnosis, or treatment of asbestosis, or any other disease that is associated with asbestos exposure (e.g., pulmonary fibrosis; lung cancer, cancers of the gastrointestinal tract, etc.).  His DD-214 reflects that his military occupational specialty was that of airframe repairman.  

Post-service evidence consists of the Veteran's statements indicating that he has a current asbestosis or asbestos-related disease, to include cancer, diagnosis.  Otherwise, there are no private or VA medical records associated with the claims file.  In this regard, a June 2010 records search for treatment at the Birmingham VAMC shows no current treatment ("no problems found") for any disorders.  

Moreover, asbestosis and cancer are not conditions under case law that have been found to be capable of lay observation, and the determination as to the presence or diagnosis of such disabilities is therefore medical in nature. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (on the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

Nevertheless, under certain circumstances, a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer).

Asbestosis and cancer are not simple medical conditions, such as a broken leg, because the conditions cannot be perceived through the senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994) (personal knowledge is that which is perceived through the use of the senses).  For this reason, the Board determines that asbestosis and cancer are not simple medical conditions that a lay person is competent to identify.

Where, as here, there is a question of a diagnosis, the claimed disability is not a simple medical condition, and there is no evidence that the Veteran is qualified through education, training, or experience to offer a medical diagnosis, competent medical evidence is required to substantiate the claim.  Therefore, the Veteran's statements are excluded; in other words, his statements are not to be considered as evidence of current disability.  Additionally, the record contains no competent medical evidence showing that the Veteran has a current diagnosis of asbestosis or asbestos-related disease, to include cancer.  Moreover, the Veteran has not offered statements that he has continuously experienced asbestosis, an asbestos-related disease, to include cancer, or persistent or recurrent symptomatology associated with such diseases since service.    

Therefore, while the Veteran has alleged that he was exposed to asbestos in his capacity as an airframe repairman during service, in the absence of competent evidence of a current diagnosis of asbestosis or an asbestos-related disease, to include cancer, there can be no valid claim of service connection.   See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim).  For this reason, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for asbestosis, or an asbestos-related disease, is denied.  



REMAND

With respect to the Veteran's claim for an acquired psychiatric disorder, to include PTSD, additional evidence, namely a U.S. Army and Joint Services Records Research Center (JSRRC) [formerly U. S. Armed Services Center for Research of Unit Records (CURR)] stressor response report, has been added to the record since the issuance of the July 2007 Statement of the Case (SOC).  That report, while neither confirming nor denying the Veteran's claimed stressor, indicated that additional information was needed in order to conduct further research regarding his claimed stressor.  Unfortunately, there is no indication that the AOJ considered the JSRRC report in adjudicating the appeal, or that the Veteran was ever informed of this material information/development.  Thus, the appeal must be remanded for the issuance of an SSOC. See 38 C.F.R. §§ 19.31, 19.37 (2010).

The Board further finds that, as this claim is being remanded, the Veteran should be provided with another opportunity to submit any additional information, including dates, locations, names of other persons involved, etc., relating to his claimed in-service stressors.

The Board also notes that VA recently amended the regulations concerning the evidentiary standards for establish an in-service stressor.  See 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010) (liberalizing the evidentiary standard for an in-service stressor as set forth in 38 C.F.R. § 3.304(f) under certain circumstances; redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and adding a new paragraph (f)(3)).  Under the amended version of 38 C.F.R. § 3.304(f)(3), service connection may be granted for PTSD where the evidence establishes: (1) a current diagnosis of PTSD rendered by a VA psychiatrist or psychologist, or one with whom VA has contracted; (2) an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically linked to the Veteran's fear of hostile military or terrorist activity by such a specified medical professional; and (3) that the Veteran's PTSD symptoms have been medically linked to such in-service stressor by such a specified medical professional.  These amended provisions apply to all claims pending before VA or the Board on or after July 13, 2010, as in the instant case.  Id.  

Therefore, the Veteran should be notified of the current regulations pertaining to substantiation of his service connection claim for PTSD, in accordance with the VCAA and implementing regulations.  Likewise, he should be informed of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. 

Moreover, the AOJ should undertake any necessary development with respect to any of the Veteran's alleged stressors that include fear of hostile or terrorist activity, to include affording him a VA examination. 

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran VCAA-compliant notice as to the amended provisions of 38 C.F.R. § 3.304(f) pertaining to verification of in-service stressors for a service connection claim for PTSD, effective July 13, 2010, and inform him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. 

2.  The AOJ should contact the Veteran and request that he provide any additional information, including dates, locations, names of other persons involved, etc., relating to his claimed service stressors.  In particular, the Veteran should be advised that, according to the October 2010 JSRRC report, the date of the plane crash and the full name of the casualty is needed to conduct further research.  The Veteran should be advised that this information is necessary to obtain supportive evidence of the claimed stressful events in service and that he must be specific as possible, because without such details an adequate search for verifying information cannot be conducted.  The Veteran should also be advised that he should provide buddy statements or other corroborating testimony that may support his stressors.  The AOJ should afford the Veteran an opportunity to submit and/or identify any alternate available sources that may provide credible support regarding his claimed stressors.

3.  The AOJ should review the entire claims file, including the Veteran's medical treatment records and previous statements of stressors, and any additional information submitted by other individuals or otherwise obtained pursuant to this remand, and prepare a summary of all claimed stressors, including witnessing the death of a solider after he crashed his plane on the runway in Danang, Vietnam (Marble Mountain base) in April 1970.  

If new information regarding stressful events is submitted, a summary of new information regarding the Veteran's claimed stressors, and all associated documents, should be sent to JSRRC.  JSRRC should be requested to provide any information that might corroborate the Veteran's alleged stressors.  Copies of all unit histories should be obtained.  

In any event, and whether or not new information from the Veteran is received, the AOJ should also request that the JSRRC or National Personnel Records Center (NPRC), as appropriate, provide any unit action, operational reports, and unit status reports for the Veteran's unit from February 1970 to April 1970 (when he was assigned to the 282nd AVN Co, and the alleged casualty was assigned to the 21st Avn Co, Fixed Wing Aviator) and, from any other period(s) specified by the Veteran regarding to his alleged stressors.  If the AOJ is unable to further corroborate a stressor, the AOJ must inform the Veteran and his representative of the results of the requests for information about the stressors.

4.  Conduct any additional development necessary in consideration of the amended provisions of 38 C.F.R. § 3.304(f), effective July 13, 2010, to include affording the Veteran any examinations deemed necessary for the adjudication of his claim.

5.  After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's service connection claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the July 2007 SOC.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.  

The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2010).



______________________________________________
A. JAEGER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs