Citation Nr: 1325310 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 13-04 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) and asthma, claimed as due to in-service asbestos exposure. 2. Entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety, and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: James McElfresh, II, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his friend, N.S. ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1944 to May 1946. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2011 rating decision, the RO denied, in pertinent part, entitlement to service connection for anxiety and stress, depression, PTSD, asbestosis and lung disorders, asthma, and COPD. In an April 2012 rating decision, the RO denied entitlement to service connection for asbestosis and lung disorders, and asthma. A notice of disagreement was filed in July 2012 with regard to the findings in both rating decisions, a statement of the case was issued in January 2013, and a substantive appeal was received in February 2013. The issues have been recharacterized above to encompass claims of service connection for a respiratory disability and an acquired psychiatric disability. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2013; the transcript is of record. Please note 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 VA Salt Lake City RO. VA will notify the Veteran if further action is required. REMAND The Veteran's service personnel records and DD Form 214 reflect that he served as a motor machinist's mate in the United States Navy and served aboard the USS PC-1214 and the USS General George O. Squier. He served 18 months outside the continental United States. He was awarded the Asiatic Pacific Area Campaign Medal, American Area Campaign Medal, and the World War II Victory Medal. Respiratory disability In this case, asbestos exposure is deemed consistent with the circumstances of the Veteran's service in the Navy. 38 U.S.C.A. § 1154(a). Thus, such exposure is conceded. However, it is important to note that mere exposure to asbestos is insufficient to achieve service connection. Rather, the evidence must show that any exposure caused a Veteran to develop a chronic disease. The post-service medical evidence reflects treatment for COPD, asthma, and bronchitis. There is no post-service medical evidence of asbestosis, or an asbestos related disease. With respect to arguments raised as to asbestos exposure, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. 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 have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The aforementioned provisions of M21-1 have been rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The Court has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. An asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Court has further held that in adjudicating asbestos-related claims, it must be determined whether development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997). The Manual guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that rating specialists are 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. In December 2011, a physician's assistant reviewed the claims files and opined that the Veteran's COPD and asthma were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran's COPD and asthma could be attributed to his long smoking history. The examiner stated that the Veteran does not meet the diagnostic criteria for asbestosis as the claims folder contains chest x-ray, chest CT, and pulmonary function tests which do not show asbestosis. A June 2013 private treatment record reflects that his COPD is caused by exposures in the Navy. It was noted that he was exposed to high doses of asbestos, temperature variation and diesel fumes while in the Navy. He also smoked for 10 years but he had a cough at the exposure to diesel fumes which persisted all these years. In light of the lack of clear rationale in the December 2011 VA opinion and the assertions contained in the June 2013 report, the Veteran should be afforded a VA examination to assess the nature and etiology of his claimed respiratory disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Acquired psychiatric disability The Veteran has claimed entitlement to service connection for anxiety, stress, depression, and PTSD due to his period of active service. The post-service medical evidence currently of record does not reflect any psychiatric diagnoses, to include depression, anxiety, or PTSD. In November 2010, the Veteran underwent an evaluation with a mental health social worker. It was noted that he had no need for therapy and he did not want to be seen for any other counseling. He denied any need for counseling for PTSD issues. He reported having no PTSD symptoms even though he is a combat Veteran from World War II and was exposed to death and dying. He denied any sleep problems, nightmares, or any other intrusive thoughts. At the Board hearing, the Veteran testified that he gets depressed (T. at 7) and he suggested he may experience nightmares but stated he likes to remain quiet about his symptoms. (T. at 9.) In light of the Veteran's assertions, he should be afforded a VA examination to assess whether has a psychiatric disability due to his experiences during active service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). At the Board hearing, the Veteran's representative indicated that the Veteran was counseled at the VA Medical Center (VAMC) for PTSD and depression, but the examiner had since retired. The Veteran estimated that this treatment was approximately two years prior. (T. at 12-13.) The VA treatment records on file do not reflect treatment for PTSD and depression, only the single VA mental health visit in November 2010. The Board notes that treatment records from the Salt Lake City/St. George VAMC have been associated with the claims folder but it is not clear that the entirety of the treatment records have been obtained. Records dated from April 24, 2012 to December 18, 2012 are contained within Virtual VA but there are no records on file subsequent to November 9, 2010 and prior to April 23, 2012. Thus, treatment records from the Salt Lake City/St. George VAMC for the period November 10, 2010 to April 23, 2012, and from December 19, 2012 should be associated with the claims folder or Virtual VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: (Please note, 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. Associate with the claims folder or Virtual VA treatment records from the Salt Lake City/St. George VAMC for the periods from November 9, 2010 to April 23, 2012, and from December 19, 2012 onward. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Schedule the Veteran for a VA examination with a physician with appropriate expertise to address the nature and etiology of his claimed respiratory disability, to include whether he has a disease related to asbestos exposure. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. All appropriate testing should be performed. The examiner should be made aware that VA has conceded that the Veteran had asbestos exposure during his service in the US Navy. The examiner should respond to the following: a) Please identify all respiratory disabilities, to include COPD and asthma, and state whether he has a disease related to asbestos exposure. b) For any disability identified, is it at least as likely as not (a 50 percent or higher degree of probability) due to the Veteran's period of active service or the result of asbestos exposure or other exposures during active service? All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinions with the service personnel records, post-service medical evidence, lay statements and testimony of the Veteran, and treatise evidence submitted by the Veteran. If the foregoing questions cannot be determined on a medical or scientific basis without resort to speculation, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 3. The Veteran should be scheduled for a VA mental examination with an examiner with appropriate expertise to ascertain the nature and etiology of his claimed acquired psychiatric disability. It is imperative that the claims folder be reviewed in conjunction with the examination. The examiner should offer an opinion as to the following: a) Please identify all psychiatric disabilities; b) Is any psychiatric disability at least as likely as not (a 50 percent or more degree of probability) related to his period of active service during World War II? c) Does the Veteran currently suffer from PTSD due to his fear of hostile military or terrorist activity while on active duty, and is it adequate to support a diagnosis of PTSD. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinion with the service personnel records, post-service records, and lay statements and testimony of the Veteran. 4. After completion of the above, the RO should review the expanded record, and readjudicate the issues of entitlement to service connection for a respiratory disability and an acquired psychiatric disability, to include pursuant to 38 C.F.R. § 3.304(f)(3). If either of the claims remain denied, the Veteran and his agent should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be remanded to the Board for appellate review. The Veteran and his agent have the right to submit additional evidence and argument on the 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 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). _________________________________________________ ERIC S. LEBOFF 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).