Citation Nr: 1226316 Decision Date: 07/31/12 Archive Date: 08/03/12 DOCKET NO. 08-29 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), schizophrenia, depression, delusional disorder and dissociative disorder. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for pulmonary fibrosis, claimed as due to asbestos exposure. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for hernia due to exploratory surgery (flexible sigmoidoscopy). 5. Whether new and material evidence has been received to reopen a claim for service connection for a low back condition, to include degenerative disc disease. 6. Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 1985, and had additional duty in the Navy Reserve from 1985 to 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Whereas the September 2009 Statement of the Case (SOC) characterization of service connection for a psychiatric disorder did not expressly include PTSD, the Board has amended the claim along these lines given that the Veteran has elsewhere indicated that he seeks to establish service connection for that particular condition. See e.g., Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that in light of the fact a claimant generally is not competent to provide a medical diagnosis, a claim for service connection for PTSD constituted a generalized claim for benefits based on a mental disorder where the evidence showed that the claimant did not have PTSD but suffered from a different mental disorder). In April 2011, and again in June 2011, the Veteran provided additional evidence comprised of copies of service personnel records. The evidence was received after RO issuance of a September 2009 Supplemental Statement of the Case (SSOC), and without an independent waiver of RO jurisdiction. Nonetheless, the Board accepts the new evidence into the record. A substantial portion of the evidence provided is cumulative of records already on file. Also, while the Veteran's representative indicated it wanted the additional evidence (specifically from April 2011) considered in connection with the appeal for a low back condition, the Board is reopening the Veteran's claim for service connection for lumbar spine disability and remanding it on the merits -- with effectively no detrimental impact occasioned by consideration of the new evidence at this particular point in time. See 38 C.F.R. §§ 20.800, 20.1304 (2011). Furthermore, for purposes of clarification at this time, the Board observes that the aforementioned newly received personnel records, at least with regard to the subject of a low back disorder, are entirely cumulative of personnel records already on file. Therefore, whereas under 38 C.F.R. § 3.156(c) a denied claim may be automatically reconsidered de novo (on the merits) upon receipt of official service department records not previously on file, this provision does not apply to the instant case. The Board presently decides the original claims on appeal for service connection for pulmonary fibrosis, section 1151 benefits, and non-service-connected pension. The Board also reopens the claim of service connection for lumbar spine disability. The remaining issues of service connection for tinnitus and a psychiatric disorder, and the underlying claim for service connection for lumbar spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The preponderance of the competent and probative evidence is against indicating that the Veteran has a current pulmonary disability that is etiologically related to claimed asbestos exposure. 2. The Veteran does not manifest a hernia or similar condition as having been caused by a flexible sigmoidoscopy procedure. 3. By an August 2002 rating decision, the RO denied the Veteran's original claim for service connection for a low back condition to include degenerative disc disease. The Veteran did not appeal therefrom. 4. Since the time of the prior rating decision, additional evidence has been received which relates to an unestablished fact necessary to substantiate the previously denied claim. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for pulmonary fibrosis, as due to asbestos exposure. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). 2. The criteria are not met to establish compensation under 38 U.S.C.A. § 1151 for a hernia due to a flexible sigmoidoscopy. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.358(a), 3.361 (2011). 3. The RO's August 2002 rating decision denying service connection for a low back condition to include degenerative disc disease became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(a), 20.200, 20.201 (2011). 4. New and material evidence has been received to reopen the Veteran's previously denied claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Veteran The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2011), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2011). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), 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, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. The Board is reopening the issue of service connection for a lumbar spine disability, and then remanding the underlying issue on the merits. Hence, a conclusive determination as to whether the VCAA duty to notify and assist was satisfied is not required at this juncture, and may be deferred pending future readjudication of the claim for service connection on its merits. While the Veteran clearly received VCAA notice concerning his petition to reopen, the Board points out only that any notice deficiency was harmless error. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Through VCAA notice correspondence dated from August 2006 on the remaining issues, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Further provided through the VCAA correspondence was an explanation of the downstream disability rating and effective date elements of a claim for service connection. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA notice correspondence preceded issuance of the March 2007 RO rating decision adjudicating the claims on appeal, and thereby comported with the definition of timely notice. The RO has taken appropriate action to comply with the duty to assist the Veteran in this case through obtaining service treatment records (STRs) and VA outpatient treatment records. Records have also been obtained from the Social Security Administration (SSA) associated with an award of disability benefits from that agency. There is no indication of private outpatient treatment records which need to be obtained. The Veteran has undergone a VA Compensation and Pension examination with regard to the claim for compensation benefits under 38 U.S.C.A. § 1151. Meanwhile, he has not undergone VA examination with regard to the claim being decided for service connection for a respiratory disorder. However, the Board does not find that such examination is needed given that there is no indication or suggestion from the record that this condition has an actual causal connection to the Veteran's military service. There was no documented treatment in service regarding a claimed respiratory disorder, and no objectively verifiable apparent asbestos exposure. Nor do the Veteran's own lay assertions offer any definitive guidance. Consequently, there is no finding of a disability that may be associated with military service sufficient to bring about VA's duty to provide a Compensation and Pension examination. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Charles v. Principi, 16 Vet. App. 370 (2002). See also 38 C.F.R. § 3.159(c)(4). In furtherance of his claims, the Veteran has provided private treatment records, and several personal statements. The Veteran declined the opportunity to testify at a hearing. There is no indication of any further available evidence or information that has not already been obtained. Thus, the record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis Service Connection for a Respiratory Disorder Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303(a) (2011). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). Additionally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA), or for injury incurred in or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106 (West 2002 & Supp. 2011); 38 C.F.R. § 3.6 (2011). This notwithstanding, the presumption of soundness as well as the presumption of aggravation of a pre-existing condition do not apply to periods of ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). See also Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology 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. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). As to asbestos-related diseases, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, VA's Adjudication Procedure Manual provides guidance in adjudicating these claims. See M21-1 MR, Part IV, Subpart ii, Chapter 2, section C (December 13, 2005) (previously cited at M21-1, part VI, paragraph 7.21). The M21-1 MR it provides that, when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service VA must also determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure; and thereafter determine if there was a relationship between asbestos exposure and the currently claimed disease, taking into consideration the latency and exposure information found at M21-1 MR, Part IV, Subpart ii, Chapter 1, section H. The following is a 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), and cancers of the gastrointestinal tract. See M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(b). The M21-1 MR further provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(a). In addition, during World War II, several million people employed in U.S. shipyards and U.S. Navy personnel were exposed to asbestos. See M21-1 MR, Part IV, Subpart ii, Chapter 2, section C, 9(g). Meanwhile, the Court has held that the M21-1 MR Adjudication Procedure Manual does not create a presumption of in-service exposure to asbestos for claimants that worked in one of the occupations that the manual listed as having higher incidents of asbestos exposure. See Dyment v. West, 13 Vet. App. 141, 145 (1999); Ashford v. Brown, 10 Vet. App. 120 (1997). Through July 2006 correspondence, the Veteran stated that when activated to go to Rota, Spain in 1999 from the Navy Reserve, one of the tasks he was assigned to was demolition preparation of an old warehouse, in which he was exposed to asbestos. The Board finds that the preponderance of the competent evidence does not etiologically link a current respiratory disability with any incident of the Veteran's military service, and on this basis the claim for service connection for respiratory disability is being denied. First, the Board acknowledges that there is some evidence of a current disability (or of at least relatively recent in nature), given the August 2005 VA outpatient chest x-ray which indicated an impression of "no active disease in the chest except for slight pulmonary fibrosis in the right upper lung field" (emphasis added). As such, there is some reason to believe the Veteran may have the present condition of pulmonary fibrosis. The preliminary element of a current disorder having been met, that does not resolve this claim, inasmuch as for service connection to be warranted there must still exist competent evidence that said disorder is actually related to military service. This is the essential element of causal nexus. See Hickson, supra. See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004); Pond v. West, 12 Vet. App. 341, 346 (1999). On the subject of a nexus to service, however, there is no plausible indication of this from the available record. The STRs do not reference any instance of complaints or treatment for respiratory symptoms, nor does the Veteran denote having had any of the same during service. The lack of in-service symptomatology aside, the theory of recovery set forth is alleged asbestos exposure therein, and here again there is minimal persuasive support of in-service precipitating injury. The personnel file for the Veteran does not disclose in-service duties commensurate with asbestos exposure. As the basis for his claim, the Veteran identifies a single incident in 1999 in which he participated in the demolition preparation of a warehouse building in a foreign country. He does not identify the duration of alleged exposure, the specific occupational duties he had, or why he believed the building in question was asbestos-laden. Unfortunately, this incident is not referenced in the available personnel records, nor is it of the type which would likely be easily verified through any objective means. When requested to provide further details of alleged asbestos exposure through an August 2006 VCAA development letter, the Veteran did not provide any response. The fact that the Veteran had service in the Navy Reserve by itself does not by necessity convey that he had to have been exposed to asbestos. The Board simply has too minimal a degree of information before it to begin to conclude that the Veteran actually had exposure to asbestos, or to otherwise support development designed to confirm that fact. To this effect, such an incident involving exposure to asbestos as a non-medical matter would tend to be best supported by documentary evidence, rather than the Veteran's assertions alone. See e.g., Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant's lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident). The only conclusion the Board can reach on these grounds is that the Veteran did not likely sustain exposure to asbestos in service, as the basis to show that he has a respiratory disability of service origin. For these reasons, the Board is denying the claim for service connection for a respiratory disorder, claimed as pulmonary fibrosis. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Compensation under Section 1151 Under applicable law, when a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2011); 38 C.F.R. § 3.358(a) (2011). To be awarded compensation under section 1151, the veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. See also VAOPGCPREC 40-97, 63 Fed. Reg. 31,262 (1998). Regarding the first prong of the analysis, to determine whether additional disability exists, the veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the veteran's condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b). Provided that additional disability exists, the next consideration is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran's additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1). Also, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the treatment at issue without informed consent. 38 C.F.R. § 3.361(d)(1). Proximate cause may also be established where the additional disability was an event not reasonably foreseeable, based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable medical provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). 38 C.F.R. § 3.361(d)(2). The Veteran maintains that during an exploratory surgery involving a flexible sigmoidoscopy in 2006 at a VA hospital, his stomach was inflated with air which caused a large hernia in the abdomen. The documented medical records reveals from March 2006 at the Iron Mountain VAMC that the Veteran was scheduled for a flexible sigmoidoscopy on March 24, 2006, and further that he completed a written informed consent form beforehand. Another progress note for that day indicates that the endoscopy was "well-tolerated" and does not point out any operative complications. Thereafter, a September 2006 VA outpatient treatment record indicates that the Veteran had requested a consultation in part for a possible ventral hernia. A physical exam revealed that there was no ventral hernia. The impression was, in pertinent part, diastasis recti. In February 2007, a VA medical opinion was obtained from a VA specialist in gastroenterology/hepatology, indicating that he had thoroughly reviewed the claims file in this case. The physician then indicated as follows: In my personal experience, I have not seen or heard of such a complication, so I also searched Medline. I found no association between flexible sigmoidoscopy and umbilical or abdominal wall hernia. It is hard to imagine how an unsedated procedure could be solely responsible for a diastasis without immediate and very severe focal symptoms. Given this data, I see no reason to believe that the flexible sigmoidoscopy was improperly done or that it resulted in any injury to the Veteran. Unless the above facts are in question, I see no reason to physically examine the Veteran additionally. The Board finds that the requisite elements for recovery in this case under the provisions of 38 U.S.C.A. § 1151 have not been met. To begin with, the Veteran has not at any time been shown to manifest a hernia following the March 2006 flexible sigmoidoscopy procedure. (There is a remote history of an umbilical hernia during Navy Reserve duty that was repaired in 1997, but which was dated from well prior to the incident of medical treatment now in question.) A September 2006 VA clinical evaluation specifically failed to show any objective indication of a hernia. Thus, there is no apparent sign of the condition that the Veteran claims as his additional disability following the March 2006 exploratory surgery. There was one condition diagnosed on VA evaluation in September 2006, however, of diastasis recti. By all available information, this is not identical to a hernia. It involves a separation of the rectus muscles of the abdominal wall. See Dorland's Illustrated Medical Dictionary, 30th Ed. (2003) at 511. Nonetheless, the Board will assume for argument's sake that this represents an additional disability following the procedure at issue. The determinative question turns to one of causation, both actual and proximate causation. In this instance, there is a competent and well-reasoned February 2007 VA medical opinion on file stating essentially that the Veteran's flexible sigmoidoscopy procedure could not have been the actual cause of his later diagnosed diastasis recti. As the physician observed, it would be difficult to consider that an "unsedated procedure could be solely responsible for a diastasis" absent "immediate and very severe focal symptoms," i.e., the presentation of such a complication would have been immediate and very noticeable due to the severity of its nature. This is an entirely plausible and convincing rationale -- the Veteran is claiming diastasis recti developed through air dispersed up to the abdominal wall, and it simply is not believable that said condition would be gradual, and not immediate and severe manifestation of symptomatology. Given the tenable rationale, and the medical credentials of the VA examiner, the Board finds this opinion highly persuasive. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the veteran, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches). Even apart from this initial question of actual causation, which is resolved unfavorably, the VA examiner provides still further opinion rationale on the subject of proximate causation, in finding that there was also no reason to believe that the flexible sigmoidoscopy was improperly done. In any event, it is sufficient that the procedure was not the actual cause of the Veteran's later claimed abdominal wall condition, such as to find that the element of causation has not been proven. On these grounds, there is no showing of an additional disability which was occasioned by the Veteran's flexible sigmoidoscopy procedure. Therefore, the criteria for recovery under section 1151 are not met, and the instant claim must be denied. The preponderance of the evidence is unfavorable, and therefore the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Petition to Reopen By a May 2000 rating decision, the RO denied the Veteran's claim for service connection for a low back condition, to include degenerative disc disease. The essential basis for the denial was that there was no evidence of incurrence or aggravation of a low back condition in military service. There was also no evidence linking a low back condition to any injury reported by the Veteran while on active duty in the early 1980s. The Veteran did not appeal therefrom. Through an August 2002 rating decision, the RO reconsidered the above claim on a de novo (on the merits) basis pursuant to the enactment of the VCAA (as the prior denial had been adjudicated under the earlier "well-grounded" claim standard). The decisional rationale was again lack of a causal nexus to military service. The RO observed that the Veteran had reported a history of low back injury and subsequent low back pain during active duty service in the 1980s, but that records were absent mention of such an injury, and the Veteran had specifically denied back pain on a reserve duty exam in 1988. The Veteran also reported several nonservice-related occupational injuries, in 1991, 1997 and 1999 which did impact upon his back condition. Hence, the RO again denied service connection. The Veteran did not file a timely Notice of Disagreement (NOD) of this decision, and hence it became final and binding on the merits. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.201. When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For purposes of the present appeal, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). As indicated above, the determinative factor in the RO's August 2002 decision to deny benefits consists of the absence of showing of a medical nexus between a lower back disorder and the Veteran's military service. Since the issuance of this decision, however, there is now pertinent evidence which warrants revisiting of this case. In his September 2008 correspondence, a VA physician identified the Veteran as having a chronic low back condition including spondylosis and herniated discs at multiple levels in the lumbar spine, and as "suffered originally while in the military service." The physician further opined that the Veteran "has back problems dating back to 1999 which are related to cumulative effects from military service." This correspondence clearly provides support that was previously lacking on the crucial element of a causal nexus to service, and is therefore both new and material to the consideration of the Veteran's service connection claim. Consequently, new and material evidence to reopen the Veteran's claim has been presented. See 38 C.F.R. § 3.156(a) (2011). A final adjudication of the Veteran's claim must be deferred however, pending completion of the development action being requested below. ORDER Service connection for pulmonary fibrosis, claimed as due to asbestos exposure, is denied. The claim for compensation under 38 U.S.C.A. § 1151 for hernia due to exploratory surgery (flexible sigmoidoscopy) is denied. New and material evidence having been received, the claim for service connection for a low back condition, to include degenerative disc disease is reopened; the appeal to this extent is granted. REMAND Low Back Disorder Following the reopening of the Veteran's claim for service connection for a low back disorder, the Board remands the underlying claim on the merits to the RO for de novo consideration, as well as further evidentiary development. The Veteran has on several instances referred to a low back injury allegedly sustained during the early 1980s during his period of active duty service in the Air Force, which continued to cause problems for him during reserve duty and ultimately led to his discharge from the Navy Reserve. While the claimed precipitating injury is not documented anywhere in military service records from the 1980s, the Veteran's reported history of in-service injury as a matter within purview of lay observation must be given appropriate evidentiary weight. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). Meanwhile, more recent service records include a January 2000 examination for retention in reserve duty, and documenting a two-month history of back sprain associated with degenerative disc disease at L4-5, L3-4 levels, with a normal physical and neurologic exam. Noted elsewhere on the examination report was a finding of degenerative disc disease, with backaches since 1984. A July 2000 administrative letter associated with service records reflects the statement that based on a review of the available medical information, the Veteran was not deemed physically qualified for retention due to degenerative disc disease L4-5, L3-4 with functional limitations. A waiver of the applicable physical standards was not recommended. As previously indicated prior to reopening of this claim, a September 2008 VA physician's letter directly related the Veteran's diagnosed chronic low back condition to the "cumulative effects" of his military service. At this stage, the Board requires a definitive medical opinion on the subject of causation, one premised upon a thorough review of the documented medical history in the claims file, as well as an apparent consistent pattern of nonservice-related occupational injuries throughout the 1990s which must be evaluated as to whether these played a significant role in the development of the condition claimed. Thus, a VA Compensation and Pension examination will be requested. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(4) (2011) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). Acquired Psychiatric Disorder Regarding a claimed psychiatric disorder, the Veteran's service treatment history is absent any documented incident of symptoms, diagnosis or treatment for a mental health condition. There is a July 1989 VA mental health evaluation contemporaneous with Navy Reserve duty from when the Veteran himself sought out evaluation, but which concluded that there was no psychiatric diagnosis found. Through July 2006 correspondence, the Veteran explained that in 1975 as a youth he presented severe symptoms of depersonalization and derealization for which he was hospitalized in a private facility [the corresponding private medical records of which it has since been determined are unavailable]. According to the Veteran, after this hospitalization he was referred to a psychiatrist, but the treatment ceased after a few months because his parents felt that his mental health was not improved. The symptoms then remained but were undiagnosed when the Veteran entered the military in 1981, up until the time of discharge from the Navy Reserve in 2001. According to the Veteran, he was first diagnosed with schizophrenia by a VA treatment practitioner in 2004. The Veteran then expressed the belief that his time spent in the service aggravated his mental conditions. The Veteran reiterated these assertions in subsequent correspondence, including an August 2006 statement in which he described continued symptoms of lack of concentration, depression, depersonalization and derealization, and difficulty focusing. Records associated with an SSA disability benefits award indicate the Veteran presented at a local government mental health agency with depressive and psychotic symptoms in April 2001. Following a psychiatric examination, the diagnosis given in May 2001 was major depression with psychotic features. The Veteran's October 2001 award of SSA disability benefits, in addition to being given for the primary diagnosis of a lumbar spine disorder, reflected the secondary diagnosis of "major depressive disorder with psychosis, one episode." Records of VA outpatient treatment denote that at the Milwaukee, Wisconsin VA Medical Center (VAMC) the Veteran underwent a February 2004 neuropsychological evaluation, which resulted in the diagnosis of delusional disorder, somatic type; and dissociative disorder, not otherwise specified (NOS). When seen by a psychiatrist in August 2004, the diagnosis was schizophrenia, depersonalization and derealization. Subsequent records at the Iron Mountain, Michigan VAMC reflect an assessment of depression and schizophrenia amongst the Veteran's overall problem list. An August 2005 consultation with a general practitioner led to the finding of a generalized anxiety disorder. A PTSD screening evaluation was negative. A September 2005 evaluation from a VA psychiatrist indicated a diagnosis of schizophrenia, mild exacerbation, and major depression. Based on the foregoing, there is obvious post-service evidence of an acquired psychiatric disorder other than PTSD, most prominently mild schizophrenia and depression. What remains to be established however, is whether a psychiatric disorder can be associated with an incident of service. There is little in the way of such a connection to be made based on the Veteran's active duty service from 1981 to 1985. That notwithstanding, the May 2001 diagnosis of depression with psychotic features was during the overall time period from 1985 to September 2001 during which the Veteran had reserve duty. Hence, it is at least plausible that the Veteran had an onset of severe psychiatric symptomatology contemporaneous with a period of qualifying ACDUTRA reserve service. Accordingly, remand is warranted for the RO/AMC to contact the appropriate records depository and obtain information regarding the specific dates during which the Veteran had qualifying reserve duty. In addition, the RO/AMC should contact the Veteran himself to obtain greater information regarding exactly when was the initial onset of psychiatric symptomatology, to ultimately assist in determining whether he has a mental health condition that is associated with reserve duty service. Tinnitus The Veteran maintains that he developed tinnitus as the result of being in proximity to loud aircraft from 1981 to 1999 during both active duty in the Air Force, and subsequent reserve duty. He states that from 1981 to 1985 he delivered parts along a flight line, and also had proximity to loud aircraft noise in 1999 during a period of ACDUTRA under similar circumstances. He further indicates that he had sinus surgery in 1998 or 1999 at a private hospital to correct this problem, which did nothing to alleviate the condition. Records of treatment from service include a February 2000 audiogram conducted by a private audiologist, the report of which further denotes a medical history of "tinnitus, sometimes constant - possibly 5-7 years, factory work - operates machinery 10-12 years possibly louder than acceptable." The Veteran underwent a relevant VA Compensation and Pension examination in May 2008. Following an exam, the opinion given was that tinnitus was less likely as not caused by or a result of aircraft noise from military service. The stated rationale was that given that the Veteran left service with normal hearing and that normal hearing was recorded in 2000 and no complaints of tinnitus were noted at that time, and given his many other health issues noted in the claims file review, and given his significant varied medications, and given his inconsistent report of hazardous noise (prior report indicated hunting and now he denied hunting or weapons fire) it was less likely as not that aircraft noise from the military service caused his tinnitus. While the preceding VA medical opinion obviously on its face weighs against service connection, the Board is concerned that the record overall is still incomplete, namely, insofar as to the record of sinus surgery at a private hospital conducted in the late-1990s. A records inquiry to obtain corresponding treatment reports is deemed necessary. See 38 C.F.R. § 3.159(c)(1) (pertaining to requests for records in non-Federal custody). Following this inquiry, regardless of the result of the records inquiry, a supplemental opinion should be acquired from the May 2008 VA examiner on the etiology of tinnitus, given that the examiner appears to have not fully considered the impact of the February 2000 in-service audiological study. Nonservice-Connected Pension Pension is a benefit payable by VA to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C.A. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C.A. § 1541(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.3(b)(4) (2011). A veteran meets the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a). The Board observes that based on service in 1999 (and potentially at other times) the Veteran may have had ACDUTRA during a recognized period of war. However, ACDUTRA service is not considered "active military service" unless the Veteran was disabled from a disease or injury incurred in or aggravated in the line of duty. See 38 U.S.C.A. § 101 (24). Still, there is the possibility that through further development requested on the aforementioned claims, that preliminary requirement of a service-connected disability during ACDUTRA could be established. Therefore, the claim for basic entitlement to nonservice-connected pension is "inextricably intertwined" with the issues being remanded, and the disposition of the nonservice-connected pension claim must be deferred pending resolving these preliminary matters. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). See also Parker v. Brown, 7 Vet. App. 116 (1994). Accordingly, these claims are REMANDED for the following action: 1. The RO/AMC should contact the National Personnel Records Center (NPRC) (and any other appropriate records depository) and request documentation pertaining to exact dates upon which the Veteran had active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) between 1985 and 2001. Then associate all documentation received with the claims file. 2. The RO/AMC should contact the Veteran directly and request that he provide further clarification as to the date of onset of his psychiatric symptomatology during military service. 3. The RO/AMC should then schedule the Veteran for a VA psychiatric examination regarding his claimed mental health disorder. The claims folder must be provided to and reviewed by the examiner in conjunction with the requested VA examination. In addition, the Veteran's ACDUTRA/INACDUTRA dates, if obtained, must be provided. All indicated tests and studies should be performed and all findings should be set forth in detail. The VA examiner is first requested to confirm that the Veteran currently manifests a psychiatric disorder. Provided this is the case, then please provide an opinion as to whether the Veteran's diagnosed psychiatric disorder at least as likely as not (50 percent or greater probability) is etiologically related to or had its incurrence during his active military service from January 1981 to January 1985, or qualifying active duty for training (ACDUTRA) from 1985 through September 2001. The VA examiner should expressly indicate consideration of the significance, if any, of a May 2001 diagnosis of depression with psychotic features in determining whether a psychiatric disorder had its onset coincident with a qualifying period of reserve duty. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 4. Then contact the Veteran and request that he complete a VA Form 21-4142, Authorization and Consent to Release of Medical Information, regarding treatment in 1998 or 1999 at St. Francis Hospital in Milwaukee, Wisconsin for sinus surgery intended to alleviate tinnitus. Then attempt to obtain corresponding medical records based on his response. Provided that the search for any identified records are unsuccessful, the RO/AMC must notify the Veteran and his representative of this in accordance with the provisions of 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(e). 5. Thereafter, the RO/AMC should then schedule the Veteran for a VA orthopedic examination to determine the etiology of his claimed low back condition. The claims folder must be provided to and reviewed by the examiner in conjunction with the requested VA examination. In addition, the Veteran's ACDUTRA/INACDUTRA dates, if obtained, must be provided. All indicated tests and studies should be performed and all findings should be set forth in detail. The VA examiner is first requested to confirm that the Veteran currently manifests a low back condition with degenerative disc disease. Provided this is the case, then please provide an opinion as to whether the Veteran's diagnosed low back condition at least as likely as not (50 percent or greater probability) is etiologically related to or had its incurrence during his active military service from January 1981 to January 1985, or qualifying active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA) from 1985 through September 2001. The VA examiner should expressly indicate consideration of both the documented medical history and the lay assertions from the Veteran regarding in-service incurrence of the condition claimed as well as continuity of symptomatology from service discharge to the present time period. Please also directly consider the significance, if any, of the various nonservice-related occupational injuries sustained to the low back during the 1990s as a potential causative factor in the development of any current low back disability. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 6. The RO/AMC should return the claims folder to the VA examiner who conducted the VA audiological examination of May 2008 and request a supplemental opinion. The examiner is requested to indicate, upon further review of the Veteran's claims file, whether the Veteran's diagnosed tinnitus is at least as likely as not (50 percent or greater probability) etiologically related to military service, to specifically include whether incurred or aggravated during a period of qualifying active duty for training (ACDUTRA) reserve service. (For this purpose, the Veteran's ACDUTRA/INACDUTRA dates, if obtained, must be provided to the examiner). The VA examiner is specifically requested to re-review the February 2000 in-service audiological report documenting complaints of tinnitus (with a possible connection to nonservice-related occupational noise exposure). The VA examiner must further consider the significance of any medical records that have been obtained of the Veteran's reported 1998 or 1999 sinus surgery intended to alleviate his tinnitus symptoms. Please provide a complete and thorough rationale for all conclusions reached in accordance with the principles stated above. Provided that the May 2008 examiner in question is not available, or is no longer employed by VA, schedule the Veteran for an examination by an examiner who has not seen him previously, if feasible, and that addresses the inquiries set forth above regarding the disability claimed. 7. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 8. Thereafter, the RO/AMC should readjudicate the claims for service connection for a low back disorder including degenerative disc disease, an acquired psychiatric disorder including PTSD, and tinnitus, as well as entitlement to nonservice-connected pension, based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs