Citation Nr: 1201204 Decision Date: 01/12/12 Archive Date: 01/20/12 DOCKET NO. 09-45 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected low back strain. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a right leg disorder. 4. Entitlement to service connection for an acquired eye disorder, to include double vision and muscle tear. 5. Entitlement to service connection for hearing loss. 6. Entitlement to service connection for a left hip disorder. 7. Entitlement to service connection for loss of sense of smell. 8. Entitlement to service connection for a respiratory disorder, to include asthma and emphysema. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. By that decision, the RO increased the assigned rating for the Veteran's service-connected low back strain to 10 percent. The RO also denied the other claims currently on appeal. The Board notes that the RO only adjudicated whether the Veteran was seeking service connection for PTSD. However, in Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) the Federal Circuit clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemmons, though a veteran may only seek service connection for PTSD, the veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Therefore, the Board will address whether service connection is warranted for an acquired psychiatric disorder, however diagnosed. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in August 2011. A transcript of this hearing has been associated with the Veteran's VA claims folder. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's low back, psychiatric disorder, right leg, left hip, hearing loss and respiratory disorder claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the issues adjudicated by this decision have been completed. 2. The record does not reflect the Veteran has an acquired eye disability for which service connection may be established. 3. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current disability manifested by loss of sense of smell that was incurred in or otherwise the result of his active service. CONCLUSIONS OF LAW 1. Service connection is not warranted for an eye disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). 2. Service connection is not warranted for loss of sense of smell. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). As mentioned in the Introduction, the Veteran's low back, psychiatric disorder, right leg, left hip, hearing loss and respiratory disorder claims are addressed in the REMAND portion of the decision below. Therefore, they will not be addressed in the VCAA analysis that follows. The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via letters dated in September and November 2006, which is clearly prior to the December 2007 rating decision that is the subject of this appeal. In pertinent part, these letters informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, he was provided with the information regarding disability rating(s) and effective date(s) mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment and personnel records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the August 2011 Board hearing. The Board notes that the Veteran contended he had surgery on his eye in 1974, but also indicated that this facility informed him that such records were not available. VA has no obligation to seek evidence which the Veteran acknowledges does not exist. See Counts v. Brown, 6 Vet. App. 473 (1994). Nothing indicates the Veteran has identified the existence of any other relevant evidence that has not been obtained or requested. With respect to the aforementioned August 2011 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, effective August 23, 2011, VA regulations were amended to clarify that the hearing provisions in 38 C.F.R. § 3.103, which were cited by the Court in Bryant, only apply to hearings before the agency of original jurisdiction (i.e., the RO in this case) and do not apply to hearings before the Board. Board hearings are instead governed the hearing provisions in 38 C.F.R. Part 20, subpart H. As such, the duties Bryant imposed on Board Members to suggest the submission of additional evidence are no longer for application. See 76 Fed. Reg. 52,572-52,575 (August 23, 2011). Moreover, the Board notes that even if the holding of Bryant were applicable to this case, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the August 2011 Board hearing. The Board further notes that no VA medical examination was accorded to the Veteran regarding the issues that are adjudicated by this decision. However, for the reasons stated below the Board finds that the evidence of record is sufficient to adjudicate these claims, and that no such development is otherwise warranted based on the facts of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). General Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. 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, 1377 (Fed. Cir. 2007). The Board notes, however, that while the Veteran is competent as a lay person to describe his visible symptomatology, his claimed disabilities are not subject to lay diagnosis pursuant to Jandreau, supra. Moreover, vision loss - a refractive error of the eye - is one of the specific conditions that VA does not grant service connection for, as it is not considered a disability for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Such a condition is part of a life-long defect, and is normally a static condition which is incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). Similarly, competent medical evidence is required to attribute the Veteran's claimed loss of smell to a specific disability. Analysis In this case, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for an acquired eye disorder and loss of sense of smell, and they must be denied. While the Veteran has claimed eye problems, there is no record of an acquired disability thereof. As mentioned above, vision loss/refractive error of the eye is not, in and of itself, considered a disability for VA purposes. Although the Veteran identified surgery on the eye in 1974, as stated above no records from this purported surgery are of record. The numerous VA medical records do not show that the Veteran has an acquired eye disability. Moreover, the Veteran, at the time of his entrance to service, reported that he wore glasses from age 9. The examiner noted that he was myopic and that his vision was corrected with glasses. Visual acuity was assessed as 20/70 bilaterally which was corrected to 20/20 on the right and to 20/15 on the left. At the time of separation, his vision was 20/40 bilaterally, which corrected to 20/20 bilaterally. His field of vision was assessed as normal and the examiner found overall that his eyes were normal. To the extent that the Veteran reports that he experienced an eye injury in service, with continuing symptoms thereafter that resulted in disability, the Board finds that he is not credible. The Board finds credible the findings on the separation examination report which found no eye deficits. The Board accordingly does not find the Veteran's reports of continuity of symptomatology following an eye injury in service to be credible as they conflict with the separation examination which was completed contemporaneous in time to his discharge from service. As there is no other evidence indicating that there may be a link between a current acquired eye disability and service, or that there was a superimposed injury or disease in service that resulted in additional disability, and the Board has found that the Veteran's reports of continuity of symptomatology are not credible, an examination is not required pursuant to the duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. The Board acknowledges that the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. In this case, however, the record does not reflect the Veteran has an eye condition other than refractive error at any time during the pendency of this case. As such, at no time has he had an acquired eye disability for VA purposes. Further, while the Veteran regularly is seen at VA for multiple disorders, there is no indication in his medical records that he has a loss of sense of smell that is related to service. To the extent that the Veteran reports that he was exposed to chemicals in service that resulted in a loss of sense of smell in service which he never regained, the Board finds that he is not credible regarding continuity of symptomatology. Again, the separation examination found no deficits. The Board finds most probative the separation examination which was completed contemporaneous in time to his discharge. As the Board has found that the Veteran's report of continuity of symptomatology is not credible and there is otherwise no evidence indicating that the Veteran has lost his sense of smell due to an injury, event or disease in service, an examination is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes again that there is no indication of any eye (other than refractive error) and/or sense of smell problems in the Veteran's service treatment records, to include his February 1971 release from active duty examination. Further, the first competent medical evidence of complaints of eye, and nasal problems all are many years after his separation from service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in disability). The Board acknowledges that the Veteran has identified in-service incidents as the purported cause of these current disabilities. For example, he indicated that his eye was injured from a bomb blast. However, the records completed contemporaneous to his active service do not show he was injured in a bomb blast and his eyes were assessed as normal at discharge. In addition, the Board has found that his reports of continuity of symptomatology are not credible. Furthermore, no competent medical opinion is of record which relates any of these claimed disabilities to the confirmed events of the Veteran's active service. Moreover, the Board concludes that no development on this matter is warranted in this case. Simply put, there is no relevant complaint or clinical finding for a clinician to link the claimed disabilities to the Veteran's military service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history, and unsupported by clinical findings, is not probative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (A medical opinion is inadequate when unsupported by clinical evidence). For the reasons stated above, the Board has concluded that the preponderance of the evidence is against the Veteran's claims of service connection for an eye disorder and loss of sense of smell. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefits sought on appeal with respect to these claims must be denied. ORDER Service connection for an eye disorder is denied. Service connection for loss of sense of smell is denied. REMAND In this case, and for the reasons stated below, the Board finds that further development is required regarding the Veteran's low back, psychiatric disorder, right leg, left hip, hearing loss and respiratory disorder claims. With respect to the psychiatric disorder claim, the Board notes that in addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Further, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror". DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen, 10 Vet. App. at 141. For claims pending before VA on or after October 28, 2008, if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 74 Fed. Reg. 14, 491 (March 31, 2009) (amending 38 C.F.R. § 3.304(f)). Further, for all claims pending before VA on or after July 13, 2010, the provisions of 38 C.F.R. § 3.304(f) were amended by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010). In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD. Initially, the Board notes that the post-service medical records confirm that the Veteran does have a diagnosis of PTSD. However, the record does not provide credible supporting evidence of his purported stressors. The Veteran, in various statements, contends that he has PTSD due to stressors that occurred while on active duty. In essence, he contends that PTSD is due to multiple stressors that occurred while engaged in combat in the Republic of Vietnam. However, the record does not support a finding he had active service in Vietnam. Despite the foregoing, the Board notes that the Veteran contended at his August 2011 hearing that his stressors occurred while stationed in the waters off GITMO/Guantanamo Bay, the waters of the Philippines, and in Boston. For example, he indicated that he pulled a dead body out of the water while in the waters off the Philippines. He also related another stressor where his friend, F. R., was killed in front of him. He identified another friend, G. H., who died of an overdose. He also reported that he wandered into a minefield on Coral Beach in Cuba. Inasmuch as the Veteran has identified stressors that occurred during his documented station(s) of active duty, and specific names of fellow military personnel who were purportedly killed, the Board finds that a remand is required to verify these purported stressors through official channels. If any of these stressor(s) are verified, he should be accorded an examination to determine if his current psychiatric disorder is etiologically linked to such confirmed stressor(s). Turning to the hearing loss claim, the Board notes that for the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. A June 2007 VA medical record indicates that the Veteran's speech recognition scores were 92 percent in the right ear and 88 percent in the left ear. It is unclear if the Maryland CNC Test was used, however, resolving all doubt on that point in the Veteran's favor, the evidence shows that the Veteran has current hearing loss. He also reports that he was exposed to excessive noise in service. Audiometric testing was not completed at the time of separation from service. In light of the current hearing loss and reports of excessive noise exposure in service, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran was accorded a VA medical examination in November 2006 which evaluated the service-connected low back strain. Moreover, in his statements and hearing testimony, the Veteran intimated that the severity of this disability may have increased since the last examination. Based on the foregoing, the Board concludes that a contemporaneous VA examination is needed in order to make an informed decision regarding the Veteran's current level of functional impairment and adequately evaluate his current level of disability for his service-connected low back strain. See VAOPGCPREC 11-95 (April 7, 1995) (When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Turning to the right leg, left hip, and respiratory disorder claims, the Board notes that unlike the claims denied above, the Veteran's service treatment records do contain entries indicative of such problems while on active duty. For example, there is a reference to his being treated for a deep laceration of the shin to the right leg from January to February 1969. Further, he was hospitalized in June 1967 for viral upper respiratory infection (URI) and pneumonitis left. He was also treated for a common cold in November 1968 and January 1969, and URI from July to August 1969. He was treated for 1st and 2nd degree burns of the left foot from September to October 1969, and indicated that he injured his left hip at the same time he was treated for back pain during service. However, there was no indication of any chronic right leg, left hip, or respiratory disorder on his February 1971 release from active duty examination. In fact, his lungs and lower extremities were clinically evaluated as normal. In view of the foregoing, the Board finds that it is not clear whether the Veteran current has chronic disabilities of the right leg, left hip, and/or respiratory system as a result of the confirmed events of his military service. Therefore, competent medical examination and opinion is also required to resolve these claims. See McLendon v. Nicholson, 20 Vet App. 79, 83 (2006); Colvin, supra. Additionally, in regard to the respiratory disorder case, the Veteran's essentially contends that he was exposed to asbestos while serving onboard ship during his active duty. For claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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, military equipment, etc. 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. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, 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). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. In this case, the RO determined that the Veteran did not have a military occupational specialty associated with asbestos exposure. Further, the RO stated that the Veteran did not have evidence of asbestos in the lungs. However, the record does not appear to have competent medical evidence which indicates whether his current respiratory disorder is related to service. Inasmuch as the Board has already determined that a medical examination and opinion is required with respect to this claim, the examiner should also clarify the likelihood the current respiratory disorder is etiologically linked to purported asbestos exposure. Since the Board has determined that medical examinations are necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. The Board further finds that any outstanding treatment records regarding the Veteran's low back, psychiatric disorder, right leg, left hip, hearing loss and respiratory problems should be obtained while this case is on remand. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for low back, psychiatric disorder, right leg, left hip, hearing loss and respiratory problems since March 2008. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. The AMC/RO should make another attempt to verify the Veteran's purported stressors through official channels, including the location of the ship to which the Veteran was assigned at the time that he reports wandering into a minefield on Coral Beach, Cuba. If additional details are required in order to verify the stressors concerning the deaths of F. Rhodes and G. Horn and the date he reports wandering into the minefield on Coral Beach in Cuba, the Veteran should be contacted. 3. If any of the Veteran's purported stressor(s) is confirmed, he should be accorded a VA medical examination to address the current nature and etiology of any psychiatric disorder found to be present. The claims folder should be made available to the examiner(s) for review before the examination(s); the examiner(s) must indicate that the claims folder was reviewed. If a diagnosis of PTSD is appropriate, the examiner should state whether that disorder is related to the confirmed event(s) of the Veteran's military service to include a stressor related to "fear of hostile military or terrorist activity" as defined by VA regulations. If the examiner concludes that the Veteran does not suffer from PTSD, but instead suffers from another psychiatric disorder, the examiner must proffer an opinion [more than likely, less than likely, or as likely as not] as to whether any disorder began in or is related to the Veteran's military service. The report of the examination should include a complete rationale for all opinions expressed. The diagnosis should be in accordance with DSM IV. 4. After step one is complete, the Veteran should also be afforded an examination to evaluate the current nature and severity of his service-connected low back strain. The claims folder should be made available to the examiner for review before the examination. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. Such comments should include whether there is additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. The examiner should also indicate whether the Veteran has a neurological abnormality associated with the service-connected disability and, if so, the severity thereof. A complete rationale should be provided for any opinion expressed. 5. After step one is complete, the Veteran should also be afforded an examination(s) to address the current nature and etiology of his claimed right leg, left hip, hearing loss and respiratory disorders. The claims folder should be made available to the examiner(s) for review before the examination(s); the examiner(s) must indicate that the claims folder was reviewed. Following evaluation of the Veteran, the examiner(s) must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any current right leg, left hip, hearing loss, and/or respiratory disorder found to be present began in or was otherwise the result of the Veteran's active service. In regard to the respiratory disorder, it must also be indicated whether it is at least as likely as not that it is etiologically related to asbestos exposure. Regarding hearing loss, the Veteran reports that he was exposed to excessive noise in service. A complete rationale for any opinion expressed must be provided, to include if the examiner(s) determine a response cannot be provided without resort to speculation. 6. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in October 2010, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2011). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs