Citation Nr: 1302013 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-21 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a psychiatric disability to include an anxiety disorder secondary to service-connected asbestosis. 2. Entitlement to service connection for a disability manifested by hoarseness secondary to service-connected asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1951 to February 1955. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified during a hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is of record. The Board remanded these matters in May 2012 for further development. Thereafter, the RO continued the denial of each claim as reflected in the December 2012 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a disability manifested by hoarseness is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The preponderance of the evidence shows that the Veteran does not have a current diagnosis of a psychiatric disability to include an anxiety disorder. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability to include an anxiety disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.30, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied through letters dated in August and November 2007, which preceded the rating action on appeal. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, VA examinations dated in September 2007 and May 2012, lay statements from the Veteran and a transcript of the March 2012 Board hearing. The May 2012 VA mental health examination reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran. The examiner discussed the relevant evidence of record and documented the results of the evaluation. Following the above, the examiner provided an explanation for her determination that the Veteran did not have a current diagnosis of a psychiatric disability. Based on the foregoing, the Board finds the VA examination is adequate for adjudication purposes. This issue was previously remanded in May 2012 in order to provide the Veteran with a VA examination and opinion. The record contains a May 2012 VA examination report that addresses the questions raised by the Board and it was supported by an explanation. Accordingly, the Board finds that there has been substantial compliance with the May 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Service Connection The Veteran claims that he currently has anxiety due to his diagnosis of asbestosis. The Veteran clarified in testimony at the March 2012 Board hearing that he was only seeking service connection for anxiety on a secondary basis. Hearing Transcript at 12. As the Veteran does not contend and the evidence does not otherwise indicate that his claimed anxiety is related to active military service, the theory of entitlement to service connection for a psychiatric disability to include an anxiety disorder on a direct basis will not be considered. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post-service symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). In assessing whether the Veteran is entitled to service connection for a psychiatric disability to include an anxiety disorder, the evidence of record must show that the Veteran has a current diagnosis of the claimed disability. A private treatment record dated in March 2008 shows that the Veteran reported symptoms of anxiety due to the possibility that his asbestos exposure may result in mesothelioma and him dying. He underwent a VA mental health examination in September 2007 and the examiner determined that the Veteran does not meet the criteria for a significant mental condition and that his only significant symptoms are his nightly worry and problems with sleep. However, the examiner also noted that "[p]erhaps one could make the case for a mild anxiety disorder, but it is interfering with his life relatively little." As it appeared that the examiner in September 2007 provided conflicting statements on whether the Veteran had a psychiatric disability, the Veteran was provided with another VA examination in May 2012. The examining psychologist in May 2012 determined that the Veteran did not have a mental disorder. She observed that the Veteran reported whenever he has been given a diagnosis of a lung problem he experienced natural anxiety and concern about his health and future. The examiner determined that these feelings of anxiety have not risen and do not now rise to a level of clinical significance necessary to meet sufficient criteria to support a diagnosis of any type of DSM IV anxiety disorder. The examiner concluded that after reviewing the Veteran's records in its entirety, including the claims file and conducted a clinical interview of the Veteran, the Veteran does meet the criteria for any DSM IV diagnosis. The Board finds that the March 2008 private treatment record that shows the Veteran experiences anxiety is of low probative value with respect to whether the Veteran has a current diagnosis of a psychiatric disability to include an anxiety disorder. In this regard, it appears that the May 2008 report is only documenting that the Veteran reported that he has symptoms of anxiety and it is not an actual diagnosis of a psychiatric disability. There is no indication from this private treatment record that the Veteran meets the DSM IV criteria for a psychiatric disorder. Specifically, the physician noted that if the Veteran continued to have anxiety and rumination, this could be an example of an anxiety disorder or obsessive compulsive disorder. The physician did not diagnose the Veteran with an anxiety disorder or obsessive compulsive disorder. The physician prefaced his opinion with "could," which is equivocal and speculative as to whether the Veteran actually has a psychiatric disability. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); Bloom v. West, 12 Vet. App. 185, 187 (1999) (term "could" without other rationale or supporting data was speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). In contrast, the Board concludes that the VA opinion dated in May 2012 is highly probative as to the issue of whether the Veteran has a current diagnosis of a psychiatric disorder to include anxiety as the examiner provided a clear explanation for the opinion based on the evidence of record and medical principles. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). She specifically described the Veteran's symptoms of anxiety and explained that these symptoms were within the normal range and that he did not meet the DSM IV criteria for any psychiatric disability. Based on the foregoing, the Board finds that preponderance of the competent medical evidence of record shows that the Veteran does not have a current diagnosis of a psychiatric disability to include an anxiety disorder. The Veteran contends that he experiences anxiety with respect to his service-connected asbestosis. Lay persons can provide an eyewitness account of a Veteran's observable symptoms, such as feelings of anxiety. Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). The Veteran is not competent to report that he meets the criteria of an anxiety disorder as this requires special medical knowledge. Therefore, while the Board has considered the assertions of the Veteran, it finds that they are not competent to state that the Veteran meets the DMS IV criteria of a psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The grant of service connection requires competent evidence to establish a diagnosis of the claimed disability. In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, as there is no evidence of a current psychiatric disability, the Board must find that the Veteran's claim of entitlement to service connection for a psychiatric disability to include an anxiety disorder is not warranted. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The benefit of the doubt doctrine is not applicable in this case, because the preponderance of the evidence is against the claim for service connection. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for a psychiatric disability to include an anxiety disorder secondary to service-connected asbestosis is denied. REMAND Unfortunately, the Board finds that another remand is necessary for further development of the remaining issue on appeal. The May 2012 Board remand requested a VA opinion be obtained to address the question of whether the Veteran's allergy disorder, claimed as hoarseness, is proximately due or aggravated by his service-connected asbestosis. The VA examiner in May 2012 determined that it is less likely than not that the claimed condition is proximately due to or the result of the Veteran's service-connected asbestosis. The examiner explained that there is no medical literature stating that asbestosis causes allergic rhinitis. She noted that the Veteran was shown to have symptoms likely secondary to chronic mild laryngopharyngeal reflux per a scope by ENT conducted in 2005. Therefore, reflux of a gastrointestinal source appears to be causing his hoarseness according to the ENT specialist, which can be a consistent finding with reflux. The examiner further noted that past tobacco use also may contribute to this effect of hoarseness as well. Unfortunately, the examiner's opinion did not address the issue of aggravation, because the examiner only provided an opinion in terms of "caused by" and "result of." A finding that a disability was not caused by another condition does not encompass a finding that it was also not aggravated by that condition. See Allen, 7 Vet. App. at 448-49. Thus, the May 2012 VA examination does not specifically address the issue of whether the Veteran's hoarseness is aggravated by the Veteran's service-connected asbestosis. Based on the foregoing, the Board finds that a remand is necessary in order to develop the Veteran's claim in accordance with the Board's previous remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Request an addendum from the examiner who performed the May 2012 VA examination. If that examiner is unavailable, request an opinion from a different VA examiner. The claims folder should be made available to the examiner. After reviewing the record, to include the September 2007 and May 2012 VA examinations, the examiner is requested to provide a current diagnosis and address the following: Is it at least as likely as not (i.e., probability of 50 percent) that any current allergy disorder, laryngopharyngeal reflux or any other disability that is manifested by symptoms of hoarseness has been aggravated beyond its normal progression by the Veteran's asbestosis? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to service connection for a disability manifested by hoarseness, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs