Citation Nr: 1209227 Decision Date: 03/12/12 Archive Date: 03/28/12 DOCKET NO. 09-47 706 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a left leg disorder 5. Entitlement to service connection for a disorder of the chest. 6. Entitlement to service connection for a back disorder (claimed as back arthritis). 7. Entitlement to service connection for a respiratory disorder, claimed as due to asbestos exposure. 8. Entitlement to an initial compensable rating for anal fissure, residual of left buttock puncture wound. 9. Entitlement to an initial compensable rating for penis laceration scar. REPRESENTATION Appellant represented by: Richmond J. Brownson, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to April 1991. This appeal to the Board of Veterans Appeals (Board) arose from a December 2008 rating decision in which the RO denied the Veteran's claims. The Veteran filed a Notice of Disagreement (NOD) in June 2009. The RO issued a statement of the Case (SOC) in November 2009, and the Veteran filed a Substantive Appeal (via a VA Form 9, Appeal to the Board) in December 2009. In June 2011, the Veteran testified during a hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of that hearing is of record. The Board's decision addressing the claim for service connection for PTSD is set forth below. The claim for an acquired psychiatric disorder, other than PTSD and the other claims on appeal are addressed in the remand following the order; those matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. 1. The VA has fully informed the Veteran of the evidence necessary to substantiate his claim and the VA has made reasonable efforts to develop such evidence. 2. The Veteran is not shown to have PTSD due to event or incident of his period of service. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.125 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the Veteran in correspondence from the RO dated in July 2008. The letter notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim and identified his duties in obtaining information and evidence to substantiate his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken and all available evidence has been obtained in this case. Thus, the content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. Notice as to these matters was provided in the July 2008 letter. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Legal Criteria Service connection may be granted for 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. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (2010); a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. Effective July 13, 2010, 38 C.F.R. § 3.304(f) (3) (stressor related to prisoner-of-war (POW) experience) and (f)(4) (stressor of in-service personal assault) were renumbered, respectively as (f)(4) and (f)(5), and a new (f)(3) was added which reduces the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 through 39852 (July 13, 2010). If the Veteran did not engage in combat with the enemy, his own testimony by itself is not sufficient to establish the incurrence of a stressor; rather, there must be service records or other credible supporting evidence to corroborate his testimony. Zarycki v. Brown, 6 Vet. App. 91 (1993); Doran v. Brown, 6 Vet. App. 283 (1994). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2011). Background The Veteran submitted the current claim for service connection for PTSD in April 2008. In this case, the Veteran asserts that he has PTSD due to injury sustained, puncture wounds near his rectum and the base of his penis, in an accident when he slipped and fell on a fence post while trying to climb the fence in an attempt to get away from a dog that was chasing him. The service treatment records confirm that the Veteran sustained a "stab wound to the left buttock when he slipped trying to climb over a fence. Under these circumstances, the Board finds that the objective evidence tends to support a finding that that the Veteran's claimed stressors actually occurred. Although the occurrence of the claimed stressor has been verified, the Board notes that the first, fundamental requirement for service connection is diagnosis of PTSD in accordance with the diagnostic criteria set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). In this case, the Board notes that the medical evidence of record contains references to diagnoses of PTSD. A March 2008 VA treatment reflects a positive PTSD screen. An April 2008 VA Mental Health Consult note reflects a diagnosis of PTSD. However, in the report of an October 2008 fee-basis examination, a psychiatrist concluded that, based upon her examination, the Veteran did not meet the criteria for a diagnosis of PTSD. In this regard, the psychiatrist explained that the Veteran's reported PTSD symptoms, avoidance of climbing fences and the reported recollection of the stressor "daily - all the time", challenge credibility. The more credible symptoms, episodic insomnia on weekends, occasional paranoia, isolative behavior, anxiety with panic attacks, and episodes of depression and euphoric and/or irritable mood were not due to PTSD, but rather were consistent with a diagnosis of cocaine-induced mood disorder with mixed features and were due to periods of either cocaine intoxication or withdrawal. Here, the Board finds the October 2008 fee-basis examination most probative in determining that the criteria for a diagnosis of PTSD are not met as it is based on a review of the medial records (including the March and April 2008 VA records); the Veterans documented assertions, military history, pre and post military history, mental history and family and social history; and, thorough contemporaneous examination. In this regard, the rationale to support the PTSD diagnosis in the April 2008 treatment record is not adequately explained. See Owens v. Brown, 7 Vet. App. 429 (1995). Notwithstanding the criteria for a diagnosis of PTSD are not met, the Board notes that service connection also requires a link established by medical evidence between current symptoms and an in-service stressor. In this case, that link has not been established. As noted above, in the October 2008 fee-basis examination, the psychiatrist found that the Veteran's reported PTSD symptoms, avoidance of climbing fences and the reported recollection of the stressor "daily - all the time", challenge credibility. The more credible symptoms, episodic insomnia on weekends, occasional paranoia, isolative behavior, anxiety with panic attacks, and episodes of depression and euphoric and/or irritable mood were not due to PTSD, but rather were consistent with a diagnosis of cocaine-induced mood disorder with mixed features and were due to periods of either cocaine intoxication or withdrawal. The law is clear, without the fundamental requirement, a diagnosis of PTSD in accordance with the diagnostic criteria set forth in the DSM-IV, the Veteran cannot meet the criteria for service connection for PTSD. As the Veteran does not have a diagnosis of PTSD and has not established a link between current symptoms and an in-service stressor, service connection for PTSD is not warranted. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal, in this regard, is denied. ORDER Service connection for PTSD is denied. REMAND With regard to the claim for an acquired psychiatric disorder, other than PTSD, the Board notes that when a Veteran submits a claim for service connection for PTSD, he is claiming service connection for psychiatric symptomatology regardless of how the disability is diagnosed. Hence, with regard to the claim for an acquired psychiatric disorder, other than PTSD, VA must consider service connection for a disability manifested by those symptoms, regardless of how it is diagnosed. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental illness 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). In this case, the Veteran's psychiatric disorder has also been diagnosed as depression, anxiety and cocaine-induced mood disorder with mixed features. The Veteran's essential contention is that his psychiatric disorder onset due to events in service. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), Court addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, indication the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. Types of evidence that "indicate" a current disability may be associated with service include medical evidence that suggest 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. Given this evidence of record, in light of Clemmons, the Board finds that a VA examination is necessary to clarify the diagnosis and etiology of the claimed psychiatric disorder. With regard to the claim for service for tinnitus, the Board observes that the Veteran is competent to present evidence of continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). In this case, the Veteran asserts that he has current tinnitus due to acoustic trauma sustained in service. Given the Veteran's assertions of chronic tinnitus since service, in light of Charles, the Board finds that a VA examination is necessary to diagnosis and determine the etiology of the claimed tinnitus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claims for service for a left leg disorder, a back disorder and a chest disorder, the Board notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In this case, a Report of Medical History associated with an examination for re-enlistment indicates that the Veteran had a history of pain or pressure in the chest and broken bones. In the explanation section of the Report of Medical History, the Veteran reported that he sustained a broken leg in Pensacola, Florida. The Veteran was stationed in Pensacola, Florida for a time during his period of service. A May 1989 service treatment record reflects the Veteran's complaints of low back pain, ongoing for one month. The diagnosis was chronic low back strain. Post-service, private and VA treatment records document complaints of and treatment for chest pain, lumbar spine disorder and history of left leg fracture. Given this evidence of record and the Veteran's assertions the Board finds that a VA examination is necessary to address the diagnosis and etiology of the claimed chest, back and left leg disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claim for service connection for a respiratory disorder, the Veteran contends that in the performance of his military duties he was exposed to asbestos. Post-service treatment records document complaints for respiratory problems. The Board notes that there are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure. McGinty v. Brown, 4 Vet. App. 428, 432-33 (1993). Likewise, applicable criteria provide no presumption of service connection for asbestos exposure claims. See Dyment v. West, 13 Vet. App. 141, 145 (1999) (holding that M21-1 does not create a presumption of exposure to asbestos solely from shipboard service). However, VA has provided guidelines for the adjudication of asbestos exposure claims in the Adjudication Procedure Manual M21-1R (M21-1R), Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29. Additional guidance is found in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The VA General Counsel has held that these M21-1R guidelines establish claim development procedures which adjudicators are required to follow in claims involving asbestos-related diseases. VAOPGCPREC 4-2000; 65 Fed. Reg. 33422 (2000). Specifically, these guidelines provide that VA must determine whether military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. Then, VA must determine the relationship between the claimed diseases and such asbestos exposure, keeping in mind latency and exposure information provided in M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. This information provides that the latency period varies from 10 to 45 years between first exposure and development of the disease. The exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). VA recognizes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Veterans Benefits Administration Manual M21-1R, Part IV, Subpart ii, Section C, Paragraph 9. It does not appear that the procedures outlined in The VA Adjudication Procedure Manual M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 have been followed concerning development of a claim involving asbestos. Consequently, additional development must be undertaken before the claim is ready for appellate review. If indicated, the Veteran should be afforded a VA examination to determine the etiology of his reported respiratory symptoms. Finally, with regard to the claims for increased ratings for his anal fissure, residual of left buttock puncture wound and penis laceration scar, during his June 2011 hearing, the Veteran essentially testified that the symptomatology associated with his anal fissure, residual of left buttock puncture wound and penis laceration scar had increased in severity since his last afforded VA examination. Given these contentions, the Board finds that more contemporaneous VA examinations are necessary. See VAOPGCPREC 11-95 (April 7, 1995) (the Board is required to remand a case back to the RO for a new examination when the claimant asserts that the disability in question has worsened since the last examination). As it has been over three years since his last examination, new examinations to determine the current severity of the Veteran's anal fissure, residual of left buttock puncture wound and penis laceration scar are in order. For these reasons, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2011), the need for additional evidence regarding his claims. This letter should reflect all appropriate legal guidance. See e.g., Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specific to the claim for a respiratory disorder, claimed as due to asbestos exposure, the AMC/RO should ensure that any notification action outlined by The VA Adjudication Procedure Manual M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 concerning asbestos are fully complied with and satisfied. 2. The RO should contact the Veteran and obtain the names and addresses, and approximate dates of treatment of all medical care providers, VA and non-VA that treat him for his service-connected and other claimed disorders. After he has signed the appropriate releases, previously unidentified records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. He and his attorney are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Specific to the claim for a respiratory disorder, claimed as due to asbestos exposure, the Veteran is requested to provide a list of his employers prior to service, and following his separation from service, complete with the addresses, dates of employment, his job title and duties, and a list of all chemicals to which he was exposed during each period of employment. All attempts to procure records should be documented in the file. Once this information is received, the AMC/RO is to contact each employer and inquire as to the Veteran's job duties, in order to determine whether the duties involved exposure to asbestos. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 4. Thereafter, the record should be reviewed and specific determinations provided as to whether the military records demonstrate evidence of exposure to asbestos in service and whether there is pre- or post-service evidence of asbestos exposure. 5. IF AND ONLY IF the AMC/RO determines that the Veteran had asbestos exposure, then the Veteran should be scheduled for a pulmonary examination at an appropriate VA medical facility. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician (preferably a pulmonary specialist, if possible) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies, to specifically include CT scan, should be accomplished, and all clinical findings should be reported in detail. Based on a review of the claims folder, examination of the Veteran, and employing sound medical principles, the physician is requested to opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed respiratory disorder had its onset in service or is otherwise etiologically related to the Veteran's period of service. A complete rationale must be given for all opinions and conclusions expressed. The physician is specifically requested to determine the relationship between any claimed respiratory disorder and any documented asbestos exposure, keeping in mind latency and exposure information provided in M21-1R, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 29, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9. The physician should also address the Veteran's history of smoking and cardiac complaints and the impact of such on the claimed respiratory disorder. 6. The Veteran should be scheduled for a VA psychiatric examination. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the psychiatrist or psychologist performing the examination for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for Mental Disorder Examination. If psychiatric impairment other than PTSD is found, the examiner is asked to opine as to whether it is at least as likely as not (50 percent chance or greater) that such condition had its onset during the Veteran's period of service or is otherwise etiologically related to service. The examiner should utilize the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in arriving at diagnoses and identify all existing psychiatric diagnoses. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 7. The RO should also arrange for the Veteran to undergo the appropriate VA examination(s), by an appropriate physician(s) at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician(s) designated to examine the Veteran, and the report of examination(s) should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician(s) prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner(s) should clearly identify whether the Veteran has current tinnitus, left leg, chest, and back disabilities. Then, with respect to each such diagnosed disability, the examiner(s) should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the tinnitus, left leg, chest and back disability/ies had its onset in or is medically related to service. The physician(s) designated to examine the Veteran should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report(s). 8. The Veteran should be scheduled for a VA rectum/anus examination to evaluate the current severity of his anal fissures. The entire claims folder must be made available to the examiner for review in conjunction with the examination and should be so documented in the examination report. All tests and studies that the examiner deems necessary should be performed. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for VA Rectum/Anus Examinations. The examiner should provide an accurate and fully descriptive assessment of the Veteran's anal fissures. The examiner should include a complete rationale for the findings and opinions expressed. 9. The Veteran should be scheduled for a VA scar examination to evaluate the current severity of his penis laceration scar. The entire claims folder must be made available to the examiner for review in conjunction with the examination and should be so documented in the examination report. All tests and studies that the examiner deems necessary should be performed. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for VA Scar Examinations. The examiner should provide an accurate and fully descriptive assessment of the Veteran's penis laceration scar. The examiner should include a complete rationale for the findings and opinions expressed. 10. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 11. After completion of the above development, the Veteran's claims remaining on appeal should be readjudicated. If the determinations remain adverse to him, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs