Citation Nr: 1324884 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-39 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for asbestosis. 3. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, with patellofemoral syndrome and chondrocalcinosis of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1969. The matter for an initial rating in excess of 10 percent for right knee disability comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The matters for service connection come before the Board on appeal from a June 2010 rating decision issued by the VA's RO in St. Petersburg, Florida. It is observed that the June 2010 rating decision denied a claim of service connection for PTSD; however, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Therefore, the issue is recharacterized as shown on the first page of this decision and it is acknowledged that such description includes a claim of entitlement to service connection for any currently diagnosed acquired psychiatric disorders. The increased rating issue 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 1. An acquired psychiatric disability, to include PTSD, was not manifested during active service. 2. The most probative evidence shows the Veteran does not have PTSD due to in-service stressors. 3. The most probative evidence indicates that the Veteran does not have asbestosis related to service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for an acquired psychiatric disability, to include PTSD have not been met. 38 38 U.S.C.A. §§ 1110, 1114, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, (2012). 2. The criteria for service connection for asbestosis have not been met. 38 U.S.C.A. §§ 1110, 1114, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability rating. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this case, the duty to notify was satisfied for the Veteran's claim for service connection for asbestosis by way of a letter sent to him in August 2009. The duty to notify for the Veteran's claim for an acquired psychiatric disability was satisfied by way of a letter sent to him in September 2009. Both letters fully addressed all notice elements and was sent prior to the initial adjudications of his claims. The letters informed him of what evidence was required to substantiate the claim and VA's respective duties for obtaining evidence. He was also asked to submit evidence and information in his possession to the RO. Under these circumstances, the Board finds that the notification requirements have been satisfied. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished and the Board will proceed with appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA and private treatment records. The Board notes that the Veteran was afforded VA examinations regarding his claims, which are adequate for the purpose of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 12, 124 (2007). Finally, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection In seeking VA disability compensation, a person generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing service connection generally requires competent and credible evidence of (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2012). To establish entitlement to service connection for PTSD, the evidence must satisfy three basic elements. Generally, there must be (1) medical evidence diagnosing PTSD, (2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred (although several presumptions exist which serve to ease this evidentiary burden in some cases). 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the initial inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A. Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder that was caused by his active service. Specifically, the Veteran contends it is a result from being aboard the USS Little Rock in 1967, which was called to aid another ship, the USS Liberty, which was attacked by Israeli forces (accidentally it turned out) during the Six Day War. The Veteran's December 2009 stressor statement indicates that when this occurred and general quarters was sounded, he believed he did not "react like a man, but a shameful coward." However, the description of his actions appears to reflect instead that he reported to his assigned location, and performed his required task, although he was frightened when doing so. In any event, service treatment records do not indicate that the Veteran suffered from a chronic psychiatric disorder or any associated symptomatology during his active military service. The Veteran was not diagnosed with any psychiatric conditions in service. Service separation examination shows that a psychiatric evaluation was accomplished in that clinical setting and no abnormalities were found. Likewise, a report of medical history accomplished in connection with the Veteran's reserve service in October 1971, shows that he denied depression or excessive worry, as well as nervous trouble of any sort. No psychiatric abnormalities were observed on clinical evaluation on that occasion either. Post-service records first reflect psychology treatment in 2009, with a VA record dated in July 2009 where the Veteran reported that he was depressed and preoccupied with thoughts of his military service. The Veteran stated that he recently retired from the police department, but while he was working, he was able to "push thoughts of the Liberty away." The examiner diagnosed to the Veteran to have major depressive disorder and PTSD, and although an explicit etiology opinion was not provided, from the context, it appears to have been linked to the Veteran's claimed stressor regarding the USS Liberty. An August 2009 private psychological evaluation conducted by Dr. Wende Anderson, shows that she concluded the Veteran had PTSD, which she linked to his stressor concerning the USS Liberty. A VA examination was conducted in February 2010. This examiner concluded the Veteran did not have PTSD due to an in-service stressor. He diagnosed anxiety disorder and depressive disorder. Dr. Anderson and the VA examiner both set out the DSM-IV criteria when evaluating the Veteran, yet they arrived at different conclusions. This raises the obvious question as to the proper diagnosis. Since the other treatment records do not set out the DSM-IV criteria met or not met, these records are not as probative with respect to the issue the Board must address as the evaluations by Dr. Anderson and the VA examiner. Of these, the Board considers the VA examination report to be the most probative. This examiner considered the Veteran's reported history, his documentary record, and explained the basis for his conclusion, noting some symptoms the Veteran himself attributed to his post service law enforcement work. (In this regard, the Veteran advised he had recently been forced to retire from the police force, because it was thought that he had not performed adequately during a recent, particularly notorious murder case. The Veteran also reported he was shot at during his police work, and physically disarmed suspects.) The VA examiner also found it significant that the service treatment records reflected no mental health treatment, and that no treatment had occurred until after the Veteran's retirement from the police force. The examiner plainly considered police force work to present a more likely source of stressful events in the Veteran's life. The private psychologist, Dr. Anderson, while concluding the Veteran had PTSD due to his in-service stressor, did not account for the Veteran's police work stressors. Likewise, Dr. Anderson appeared to attach some significance to the Veteran's current report that his symptoms of PTSD began one year after service, i.e., 1970, yet the record shows the Veteran denied any psychiatric symptoms when examined in service in 1969, or in the reserves in 1971. This casts doubt on the accuracy of the history the Veteran is now reporting, which further reduces the probative value of any conclusions that rely on that history. Since the VA examination report is the most fully articulated, and accounts for a more complete history, the Board accords it more weight. Therefore, because the most probative evidence does not show the Veteran has PTSD due to in-service stressors, service connection is not warranted. As to non-PTSD psychiatric diagnoses, there is no suggestion in the documentary record of any psychiatric symptoms or diagnoses in service or prior to 2009, a period of 40 years. These facts, in the context of 2 full post service careers, (one with the railroad and the other on the police force) where one would reasonably expect access to health care as needed and a corresponding record, weigh against the conclusion the Veteran had an illness as serious as a psychiatric disorder ever since service. Further, the 2010 VA examiner concluded these disabilities were unrelated to service and while the Veteran's wife reportedly observed symptoms of mood swings and depression shortly after she married the Veteran, this was in 1974, 5 years after service, and there is no indication those symptoms provided the basis for any current diagnosis. She herself is not shown to have the expertise to diagnose any psychiatric disorder or offer any probative opinion regarding the etiology of the Veteran's disability. Accordingly, the evidence does not support the conclusion psychiatric disability other than PTSD was incurred in service. In reaching the decision above the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against entitlement to service connection for an acquired psychiatric disorder, to include PTSD, the doctrine does not apply and this aspect of the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Asbestosis The Court has held that VA must analyze a veteran's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). There is no specific statutory guidance regarding these claims and the Secretary has not promulgated regulations with regard to asbestos related claims. Nevertheless, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual) guides the Board on service connection claims for disabilities resulting from asbestos exposure. The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. Manual, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, 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 products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). The Veteran contends that he was exposed to asbestos while in active service aboard the USS Little Rock. Given VA's manual provisions as to the uses of asbestos, it may be said the Veteran's ship had asbestos aboard it, although the Veteran has not articulated a specific mechanism by which he was exposed to asbestos during service. Supporting the Veteran's claim is a January 2008 private treatment record, where a private physician, Dr. Richard Cassoff, opined that based on the Veteran's work history, and his reading of chest X-ray results, there was a reasonable degree of medical certainty, the Veteran had asbestosis. While the Veteran's work history necessarily includes his 2 years on active duty, weighing against the claim is that the Veteran has acknowledged he has been separately compensated for asbestos exposure that occurred during his 18 year post service career as a machinist with a rail road company. Also, at the 2010 VA examination, X-rays showed no acute infiltrates, pneumothorax or pleural effusion, and no calcified pleural plaques. This, together with the absence of chronic pulmonary complaints, led that examiner to conclude the Veteran did not have an asbestos related lung disease. The foregoing picture does not support the conclusion the Veteran acquired asbestosis during service. It is not clear he was actually exposed to asbestos during service, whereas a prolonged post service exposure is established. The Veteran himself is not competent to establish he has asbestosis, or assuming he does, that it is related to in-service exposure to asbestos. The only favorable medical opinion regarding a relationship to service is so vaguely worded as to be of almost no probative value. Indeed, a more logical inference would be that it supports the conclusion the exposure occurred during the Veteran's long post-service work. These factors, when combined with the VA examiner's conclusion, explained by the current findings and the Veteran's history shows the greater weight of the evidence is against the claim. Accordingly, service connection for asbestosis is denied. ORDER Entitlement to service connection for an acquired psychiatric disorder to include PTSD, is denied. Entitlement to service connection for asbestosis is denied. REMAND The Veteran seeks a higher rating for his service-connected right knee disability. The medical evidence shows that the last examination regarding the Veteran's service-connected right knee was in December 2008, more than four years ago, and that there may have been changes in the Veteran's condition since that time. Therefore, the Board finds that a new VA examination would assist in fully and fairly evaluating the Veteran's claim for an increased initial rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Also, VA treatment records are current only through August 2010. As such, the Board finds that a remand is necessary to request relevant VA medical records and any private records in order to provide an accurate assessment of his present degree of disability. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that relevant VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran to obtain the names and addresses of all VA or private health care providers who have treated for him for his service-connected right knee disability since service connection was established. After securing any necessary releases, the RO/AMC should request any records identified. If any requested records are unavailable, then the file should be annotated as such. In addition, obtain all relevant VA treatment records dated since August 2010. 2. Upon completion of the above, the Veteran should be scheduled for an appropriate VA examination to determine the severity and manifestation of the Veteran's right knee disability. The claims folder should be made available and reviewed by the examiner and all necessary tests should be conducted. The examiner should set forth all right knee symptoms, including loss of range of motion during flare-ups. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss or any additional loss of range of motion due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. 3. Thereafter, the RO/AMC should readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and given the opportunity to respond thereto. 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs