Citation Nr: 1241201 Decision Date: 12/03/12 Archive Date: 12/12/12 DOCKET NO. 09-29 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the benefits sought on appeal. In February 2012, the Veteran testified at a videoconference hearing before the undersigned member of the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A (West 2002). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claims requires additional development. The Veteran contends that he currently suffers from a psychiatric disability, to include PTSD, due to sexual trauma in service in March 1977. The service medical records, including the reports of entrance and separation examinations, contain no complaint, finding, history, treatment, or diagnosis of any psychiatric disorder. The Veteran's personnel file shows that the Veteran was arrested for drug possession prior to service in 1973. The service personnel records also document multiple disciplinary problems, to include problems with authority, unexcused absences, poor attitude, and nonjudicial punishment action, starting in 1976. After service, VA treatment records dated after 2005 show treatment for alcohol dependence, polysubstance abuse, anxiety, mood disorder, personality disorders, and depression. In January 2008, the Veteran reported military sexual trauma. He was diagnosed with PTSD. In statements after 2008, and at hearings, the Veteran identified numerous in-service stressors, to include being sexually assaulted in March 1977 by a fellow serviceman who performed oral sex on the Veteran after he fell asleep. He identified two other individuals who were also involved in the sexual assault. He described being held down by one of the men during the assault. Allegedly, one of the perpetrators threatened his mother's safety, and his own, if the Veteran ever reported the incident. The man, who had administrative duties in the Navy, had access to the Veteran's personal records, to include his mother's home address. The Veteran stated that at the time he told a Navy Chaplin, but did not tell anyone else because he feared for his mother's safety. Other stressors reported included seeing a dead man in a cooler after he died in an accident; witnessing an aircraft go overboard into the sea, which resulted in the death of the pilot who was unable to timely exit the aircraft; losing contact with a 14 year old girl with whom he had sexual relations and impregnated during service; and being robbed at knife point while stationed in the Philippines, and killing the perpetrator with a brick, after which he threw the body in a river. The evidence does not show that the Veteran engaged in combat with an enemy during service. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); Robinette v. Brown, 8 Vet. App. 69 (1995). Although the Veteran is competent to report the onset of a psychiatric disability during service, and the continuity of symptoms after service, he is not competent to diagnose or to relate any current psychiatric disability to his active service. Accordingly, the Board finds that a VA examination is necessary in order to fairly decide his claim. McLendon v. Nicholson, 20 Vet. App. (2006). This remand will allow service connection for all current psychiatric disorders to be considered. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Next, with regard to the Veteran's claim for service connection for a respiratory disability, in statements and at hearing, the Veteran claimed that he incurred a lung disability, currently diagnosed as COPD, due to exposure to chemical agents in service, including asbestos and fumes from paints and paint thinners such as MEK. Specifically, at a hearing in March 2009, the Veteran reported exposure to asbestos while serving aboard the USS Enterprise. The Veteran's service records confirm that he served in the Navy aboard the USS Enterprise (CVN-65) for a significant portion of his period of active duty. The Veteran's service separation form lists his military occupational specialty as AMH - 0000 aviation structural mechanic (hydraulics). VA has issued a circular as to claims of service connection for asbestosis or other asbestos-related diseases. That 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. 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, or military equipment. 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, United States Navy Veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of the 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). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. However, the provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, do 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. Dyment v. West, 13 Vet. App. 141 (1999). 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 or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the appellant's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. An asbestos-related disease can develop from brief exposure to asbestos. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). The Veteran's service medical records are negative for any complaints or clinical findings of exposure to asbestos. However, his service personnel records show that he was assigned to a Navy vessel that may have placed him at risk of asbestos exposure. Additionally, the service medical records show that the Veteran was seen in January 1977 for complaints of dizziness, headache and nausea. The clinician noted that the Veteran had spent three days painting in a closed area. Post-service treatment records starting in 2005 document multiple respiratory problems, with a diagnosis of COPD and scarring of lung tissue. VA and private treatment records also noted a history tobacco use for more than 20 years. However, the record is devoid of a diagnosis of asbestosis, or a medical opinion linking any current diagnosis or finding to the appellant's period of active duty. Therefore, additional development should be undertaken to verify whether the appellant was exposed to asbestos in service. If asbestos exposure is verified the appellant should be afforded an examination to determine whether his current COPD and/or scarring of lung tissue is related to asbestos exposure in service. Next, at the February 2012 personal hearing the Veteran testified that he was in receipt of Social Security disability benefits. As the Social Security decision and the records upon which that grant of benefits was based upon are not included in the claims folder and are relevant to the claims on appeal, those records should be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992) ); Collier v. Derwinski, 1 Vet. App. 413 (1991). Finally, a review of the claims file shows that the most recent VA medical records are dated in June 2009. To aid in adjudication, any VA medical records dated from June 2009, should be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 1. Obtain and associate with the claims file any Social Security disability decision and the medical records underlying the decision. All efforts to obtain the Veteran's Social Security records should be fully documented. 2. Obtain any outstanding VA medical records, to include records since June 2009. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. Schedule the Veteran for a VA examination with a psychologist or psychiatrist to ascertain the nature and etiology of any current psychiatric disability, to include PTSD. The examiner should review the claims file and should note that review in the examination report. The examiner should include a complete rationale for any opinions expressed. The examiner should specifically attempt to reconcile the opinion with all other pertinent evidence of record, including the service medical records, the service personnel records, and the post-service medical records. The examiner should provide the following: a) Diagnose all psychiatric disabilities demonstrated during the pendency of the appeal, to include, but not limited to PTSD and depression. b) Provide a full multi-axial diagnosis and specifically state whether or not each criterion for a diagnosis of PTSD is met pursuant to DSM-IV. c) If a diagnosis of PTSD is warranted, the examiner should specify whether the diagnosis of PTSD is due to any alleged in service stressor, to include sexual trauma. The examiner is asked to consider whether the evidence supports the Veteran's contention of in-service sexual assault that would be productive of PTSD, and whether the alleged in-service stressor was sufficient to produce PTSD pursuant to the DSM-IV criteria. The examiner is asked to comment on the clinical significance of the following: (1) Service medical and personnel records, which contain no complaint, finding, history, treatment, or diagnosis of any psychiatric disorder; (2) the service personnel records which show a history of an arrest for drug possession prior to service in 1973, and documented multiple disciplinary problems starting in 1976; and (3) the Veteran's description of having been sexually assaulted while in service, to include his initial report of in-service sexual assault as recorded in statements and VA treatment records dated after 2008. The examiner is asked to cite to any relevant evidence that documents behavioral changes following the alleged in-service assaults that may constitute credible supporting evidence of the stressor. d) For any currently diagnosed psychiatric disorder, other than PTSD, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each psychiatric disorder is related to service or a service-connected disability, or that any psychosis developed within one year of the Veteran's discharge from service in June 1979. The examiner must consider the Veteran's statements regarding continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner is requested to cite to the relevant evidence in providing the opinion. 4. Contact the service department regarding the assertion that the Veteran was exposed to asbestos aboard the USS Enterprise during his service. Supply the service department, or other appropriate authority, with the appropriate information regarding the Veteran and his service, and request verification of whether it is at least as likely as not (50 percent or greater probability) that the Veteran's activities during service would have exposed him to asbestos. 5. Schedule the Veteran for a VA respiratory examination to determine whether he has a current respiratory or pulmonary disorder, to include COPD and scarring of tissue of the lungs, due to exposure to asbestos or other toxic chemicals in service. The examiner should review the claims folder prior to examination. The examiner is asked to address the following: a) Specify all currently diagnosed pulmonary disabilities, to include COPD. The physician should specifically state whether the Veteran has any indication of pleural plaques indicative of asbestos exposure and whether he has asbestosis. b) State whether it is at least as likely as not (50 percent probability or greater) that any current pulmonary disorder is related to the Veteran's active service, including exposure to asbestos or other toxic chemicals from June 1976 to June 1979. In answering this question, the examiner should specifically comment on whether any currently diagnosed respiratory disability had initial manifestation during active service, and should opine as to the most likely etiology of COPD. The examiner should discuss the appellant's Navy service and his post-service history, and any other pertinent risk factors for asbestos-related disease or other respiratory disorders, to include the Veteran's over 20 years of tobacco use. 6. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case, with consideration of all information and evidence obtained since the issuance of the September 2009 statement of the case. Allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).