Citation Nr: 1318576 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-41 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for dysthymic disorder (also diagnosed as depression and anxiety), to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos. 3. Entitlement to an initial rating in excess of 50 percent for PTSD prior to March 15, 2011. 4. Entitlement to an effective date prior to March 15, 2011 for the grant of a total disability rating due to individual unemployability based on service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008, January 2010 and April 2012 rating decisions issued by the Department of Veterans Affairs (VA), Portland, Oregon, Regional Office (RO). The January 2008 rating decision denied service connection for PTSD, dysthymic disorder, and COPD. Subsequently, in the January 2010 rating decision, the RO granted service connection for PTSD and assigned a 50 percent disability rating, effective the date of claim, January 9, 2007. The April 2012 decision granted a TDIU, effective March 15, 2011. By rating decision in March 2011, the RO increased the PTSD disability rating to 70 percent, effective March 15, 2011. The RO treated this as a full grant for the benefit sought on appeal as the Veteran had expressly requested a 70 percent disability rating in his March 2010 notice of disagreement. However, as the RO did not grant the 70 percent rating from the date of the original claim, the Board finds that the matter of whether a higher initial rating is warranted for the period prior to March 15, 2011 is still in appellate status. Accordingly, the issue has been characterized as set forth on the front page of this decision. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran and his spouse testified at a RO hearing in March 2009. A transcript of the hearing has been associated with the claims file. Additionally, while he requested a Board hearing to be held at the RO at various times during the pendency of his appeal, the Veteran ultimately withdrew his request for a Board hearing in March 2013 and requested that his claims file be forwarded to the Board for a decision. Therefore, the Board finds that the Veteran's request for such a hearing has been withdrawn. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for COPD, entitlement to an effective date prior to March 15, 2011 for the grant of a TDIU, and entitlement to an initial rating in excess of 50 percent for PTSD prior to March 15, 2011 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT Resolving all doubt in favor of the Veteran, dysthymic disorder (also diagnosed as depression and anxiety) is proximately due to his service-connected PTSD. CONCLUSION OF LAW The criteria for a grant of service connection for dysthymic disorder (also diagnosed as depression and anxiety) have been met, as secondary to the service-connected PTSD. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for dysthymic disorder herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records are silent with respect to any psychiatric symptoms or diagnosis. The June 1968 service examination prior to discharge showed that the Veteran was clinically evaluated as psychiatrically normal. Post-service VA treatment records show that the Veteran underwent an initial mental health assessment in November 2007. At that time, he was diagnosed with adjustment disorder and alcohol abuse. The adjustment difficulties were attributed to being laid off from work. Follow up treatment records showed an assessment of PTSD, depression, and dysthymia. A March 2009 opinion from a VA staff psychiatrist indicated that the Veteran suffered from PTSD due to traumatic incidents during his military service and dysthymic disorder. The Veteran was afforded a VA psychiatric evaluation in September 2009. At that time, he was diagnosed with major depressive disorder that was directly related to his struggles concerning his finances and debilitating physical status. Although the examiner determined that the Veteran did not meet the criteria for PTSD, the examiner did diagnose anxiety disorder and found that it was directly related to his military experiences. In a January 2010 rating decision, the RO granted service connection for PTSD. However, in a contemporaneous supplemental statement of the case, the RO continued to deny service connection for dysthymic disorder and indicated that all of his psychological symptoms were evaluated under his PTSD. The Veteran underwent another VA psychiatric examination in March 2011 to assess the severity of his PTSD. The examiner diagnosed dysthymia by history and opined that it was at least as likely as not partially related to his PTSD as well as his physical issues, and unemployment. In a May 2011 addendum, the same examiner indicated that the Veteran may not be able to obtain and sustain gainful employment due to a combination of PTSD symptoms and physical issues. The examiner pointed out that the Veteran's irritability and difficulty getting along with others may interfere with his employment. However, an April 2011 general medical examination determined that none of the Veteran's medical problems were preventing him from working and it was more his psychiatric, PTSD and associated issues, that kept him from maintaining steady employment. A June 2011 opinion from a VA staff psychiatrist again emphasized that the Veteran had been treated for depression and PTSD since 2007 and his symptoms rendered him unemployable. In April 2012, the RO granted a TDIU finding that the Veteran was unemployable due to his PTSD. After considering the totality of the evidence, the Board finds that, when resolving the benefit of the doubt in favor of the Veteran, service connection for dysthymic disorder (also diagnosed as depression and anxiety) is warranted. Although the RO indicated that it had considered all of the Veteran's psychological symptoms when evaluating his PTSD, the main question in this case is whether service connection is warranted for a separate psychiatric disability regardless of whether the symptoms are evaluated together. The most recent VA examination report clearly attributed the Veteran's dysthymia in part to his PTSD as well as to his unemployment. Importantly, the Veteran's unemployment has also been attributed to his service-connected PTSD. In sum, the medical evidence has attributed the Veteran's dysthymia (also diagnosed as depression) to his PTSD. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, service connection is warranted for dysthymic disorder (also diagnosed as depression and anxiety) as secondary to the Veteran's service-connected PTSD. In reaching this conclusion, the Board finds that the evidence is in at least a state of equipoise. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for dysthymic disorder (also diagnosed as depression and anxiety), as secondary to service-connected PTSD, is granted. REMAND A review of the record indicates that further development is necessary with respect to the remaining issues on appeal. The Veteran is seeking service connection for COPD. Essentially, he contends that his COPD is due to asbestos exposure while stationed on the USS O'Bannon. He has also contended that exposure to dust particles and lead paint while stationed on board ship caused his COPD. He indicated that he worked in a lot of dust and was unable to breath. He asserts that he has no post-service exposure to asbestos. VA treatment records show a current finding of COPD. An April 2008 pulmonary function test showed a severe obstructive lung defect suggestion emphysema. The April 2011 general medical examination showed an assessment of COPD beginning in 2004. The examiner observed that the Veteran reported that he was in "dry dock" in Hawaii and that he believed his disability was due to asbestos. However, he had also been told that it was due to smoking. The Veteran's DD 214 showed that his military occupational specialty was radioman, which is considered as having a minimal probability of asbestos exposure. Nevertheless, he has reported that he was exposed to asbestos while working on the ship when it was "dry docked" in Hawaii. Service personnel records do show that the ship was stationed in Hawaii for a period while the Veteran was stationed on it. Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has not been afforded a VA examination with respect to this issue. Based on the evidence currently on file, and in consideration of the Veteran's assertions of in-service exposure to asbestos as well as other environmental hazards, the Board believes that the threshold requirements discussed in McLendon are arguably met with respect to this claims, warranting an examination in accordance with the duty to assist. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Further, as observed above, in the January 2010 rating decision, the RO granted service connection for PTSD. In March 2010, the Veteran submitted a notice of disagreement to the initial rating assigned pursuant to 38 C.F.R. § 20.201 and specifically requested a 70 percent disability rating. As discussed above, although the RO granted a 70 percent rating in a subsequent March 2011 rating decision, effective March 15, 2011, this rating was not assigned for the entire period on appeal. In turn, the period prior to March 15, 2011 is considered to still be on appeal and the RO has not issued a statement of the case with respect to this matter. The Court has held that, where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded for the issuance of a statement of the case, and to provide the Veteran an opportunity to perfect the appeal. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). With respect to the issue of entitlement to an effective date prior to March 15, 2011, for the grant of TDIU, as this matter is inextricably intertwined with the issue of whether an initial higher rating is warranted for PTSD prior to such date, this matter must also be remanded. In this regard, the record shows that the Veteran has been unemployed since October 2006 and has been receiving Social Security Administration (SSA) disability benefits since that date. He has contended this his service-connected PTSD has rendered him unemployable throughout the course of the appeal. The current effective date assigned of March 15, 2011 is the date that the Veteran met the schedular criteria for TDIU based on the award of 70 percent for the his service-connected PTSD. See 38 C.F.R. § 4.16 (2012). However, it is VA policy that all Veteran's who are unable to work due to service connected disability will be awarded TDIU. 38 C.F.R. § 4.16(b). Where a Veteran does not meet the percentage requirements, but there is evidence of unemployability, the claim for TDIU will be referred to the Director of VA's Compensation and Pension Service. 38 C.F.R. § 4.16(b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first insure that the TDIU claim is referred to the Director of Compensation and Pension (C&P) for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, there is evidence that the Veteran's PTSD has affected his employability throughout the course of the appeal prior to March 15, 2011. Nevertheless, the Board cannot, however, grant TDIU in the first instance without ensuring that the claim is adjudicated in accordance with 38 C.F.R. § 4.16(b). Thus, after the development discussed above, if the schedular requirements for TDIU are still not met prior to March 15, 2011, this matter must referred to the Director of C&P for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). Lastly, the record shows that the Veteran receives continuous treatment at the VA for his disabilities on appeal. The most recent treatment records associated with Virtual VA are dated from May 2012. In light of the need to remand, additional ongoing VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. The AOJ should obtain the Veteran's VA treatment records, dated from May 2012 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran and his representative should be furnished with a statement of the case with respect to the issue of entitlement to an initial rating in excess of 50 percent for PTSD prior to March 15, 2011. The Veteran and his representative should be advised of the need to file a timely substantive appeal if the Veteran desires to complete an appeal as to this issue. 3. After obtaining any outstanding treatment records, the Veteran should be scheduled for a VA examination by an appropriate medical professional for respiratory system disorders, to include obstructive, restrictive, and interstitial disorders. The report of examination should include a detailed account of all manifestations of lung disorders found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Specifically the following tests should be conducted: * PFTs to include values for FEV-1; FEV-1/FVC; and DLCO (SB). The examiner should also indicate a narrative interpretation of the test results to indicate the type of ventilatory defect, if any, they represent, and the diagnoses that would be supported. * High Contrast Chest CT. The examiner should also indicate a narrative interpretation of the results to indicate the diagnosis of type of respiratory disorder supported by CT evidence. The examiner is to review the evidence of record and the test results and indicate the diagnoses of any current respiratory disorders present and express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any disorders diagnosed are related to the Veteran's military service. The examiner should comment on the Veteran's allegations that his respiratory disorder is related to exposure to asbestos, dust particles, and/or lead paint during service. The report of examination must include a complete rationale for all opinions expressed and must specifically discuss any evidence of record inconsistent with the conclusions reached. The examiner must explain how he or she arrived at whatever diagnosis (or diagnoses) is rendered and, if the diagnosis is asbestosis or other asbestos related disease, precisely the exposure to which the examiner attributes the disease. The examiner should also address the Veteran's assertions that his current lung disorder is related to exposure to dust and paint chips while working on the ship. The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must annotate the claims file as to whether the claims folder and this remand were reviewed. The examiner must also indicate whether he or she is a pulmonologist. 4. If, after the development discussed above is completed and the Veteran still does not meet the schedular criteria for TDIU prior to March 15, 2011, the Veteran's claim for a TDIU should be submitted to the Director, Compensation and Pension Service for adjudication in accordance with the provisions of 38 C.F.R. 4.16(b). 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the remaining issues on appeal should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs