Citation Nr: 1330531 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-23 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a vision disorder (color blindness). 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to November 1975. His service from October 7, 1960 to December 8, 1963 has been found to be honorable. His service from December 9, 1963 to November 18, 1975 has been found to be dishonorable. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. With respect to the Veteran's claim for service connection for PTSD, the Board notes that in a January 1997 rating decision, the RO denied a claim of entitlement to service connection for anxiety and depression. A claim for a disability includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). However, a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. "Under § 7104(b), once a claim for service connection of a properly diagnosed disease or injury has been denied by the Board, the Board cannot exercise jurisdiction over a new claim based upon that same disease or injury. Therefore, a veteran is not entitled to a new claim based upon that same disease or injury merely because he has been misdiagnosed as having a different disease or injury. Accordingly, if the VA establishes, via medical evidence, (1) that the veteran has been misdiagnosed and (2) that the Board has already denied service connection for the veteran's properly diagnosed disease or injury, then § 7104(b) will bar the Board from exercising jurisdiction over the veteran's claim as a new and independent claim." Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In reconciling these holdings, the United States Court of Appeals for Veterans Claims (Court) held that when varying diagnoses are involved, in considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, "'the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' or whether it is evidence tending to substantiate an element of a previously adjudicated matter." Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs, 520 F.3d at 1337). Here, the Veteran has filed a new claim of entitlement to service connection for PTSD. Medical evidence of record currently shows a diagnosis of chronic PTSD, as well as diagnoses of depression and anxiety, and rule out PTSD. There is no medical evidence of a misdiagnosis in the record, and thus the Board will address the claim for PTSD as new and independent of the prior denied claim of entitlement to service connection for depression and anxiety. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for depression and anxiety has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action The issues of entitlement to service connection for PTSD and asbestosis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service from December 9, 1963 to November 18, 1975 resulted in an other than honorable discharge. Entitlement to service connection for hypertension or color blindness based on that period of service is precluded as a matter of law. 2. Hypertension, was not manifested during the Veteran's period of honorable service, was not demonstrated in the first year after this period of service, and hypertension is not otherwise related to the Veteran's period of active duty service from October 1960 to December 1963. 3. The Veteran's color blindness is congenital in nature; there is no indication that the Veteran has ever had an eye disease which could cause acquired color blindness. CONCLUSIONS OF LAW 1. The Veteran's service from December 9, 1963 to November 18, 1975 ended with an other than honorable discharge due to willful and persistent misconduct; that service was dishonorable for VA compensation purposes and resultantly a bar to VA benefits (exclusive of certain health care) based on that period of service. 38 U.S.C.A. §§ 101(2), 5303 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.12 , 3.13 (2013). 2. Hypertension was not incurred in or aggravated by active service from October 1960 to December 1963. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Color blindness was not caused or aggravated by active service from October 1960 to December 1963. 38 U.S.C.A. § 1101, 1110; 38 C.F.R. §§ 3.303, 4.9 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The RO provided notice to the Veteran in a June 2007 letter, issued prior to the decision on appeal, regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the veteran, and the types of evidence that will be obtained by VA. The letter also advised the Veteran of what information and evidence is needed to substantiate a claim for service connection, including evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes service treatment records, private medical records, and statements from the Veteran. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), four factors must be considered in determining whether a medical examination must be provided or medical opinion obtained: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. Here, the Veteran was not provided a VA examination regarding his claim of entitlement to service connection for hypertension as there is no evidence of an in-service disease or manifestations, or an "indication" that the disability may be "associated with" service. The Veteran has filed a claim of entitlement to service connection for hypertension, but has provided no additional statements to support this claim. Hypertension is not a disorder capable of lay observation, and the Veteran has not made any statements regarding the continuity of his treatment for hypertension. Regarding the Veteran's claim for color blindness, the Board notes that service connection is not warranted for congenital defects as a matter of law. There is additionally no evidence of an in-service disease or injury to the eyes suggesting the possibility of superimposed disease. As such, the McLendon test is not met, and the Board finds that the claims may be adjudicated without remanding for examinations. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Hypertension The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). There are two types of character-of-discharge bars to establishing entitlement to VA benefits: (1) statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c), and (2) regulatory bars listed in 38 C.F.R. § 3.12(d). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c) : (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of an absence without of official leave period (AWOL) for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). As to the regulatory bars, a discharge or release because of one of the offenses specified under 38 C.F.R. § 3.12(d) is considered to have been issued under dishonorable conditions. These offenses are: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. In particular, a discharge from military service because of willful and persistent misconduct, including a discharge under other than honorable conditions, is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. Id. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not, per se, constitute willful misconduct. 38 C.F.R. § 3.1(n). The Court has determined that an AWOL, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). Similarly, the Court also has affirmed a Board decision finding that 32 days of unauthorized absence out of 176 days of total service was severe misconduct, and, by analogy, persistent misconduct. Winter v. Principi, 4 Vet. App. 29 (1993). Here, in an October 1995 administrative decision, the RO determined the Veteran's second period of active duty service from December 9, 1963 to November 18, 1975 was dishonorable under 38 C.F.R. § 3.1(n). Therein, the RO noted that the Veteran requested a discharge for the good of the service in lieu of a trial by court-martial. At the time of the requested discharge he had a total of 3,021 days of lost time. Additional administrative records reveal that the Veteran accepted nonjudicial punishments for: (1) leaving his place of duty without proper authority in October 1964, (2) assaulting a German National, (3) violating a lawful general regulation, and (4) for being AWOL from June 11-12, 1966. Additionally, he was convicted by a special court-martial for being AWOL from May 7-9, 1966. Lastly, court-martial charges were preferred against the Veteran for being AWOL from April 1968 to October 1975. After consulting with legal counsel, the Veteran voluntarily requested a discharge for the good of the service in lieu of trial by court-martial. "The applicant was advised of the effects of a discharge under other than honorable condition and that he might be deprived of many or all Army and Veterans Administration benefits." He declined to submit a statement on his behalf. These service department findings are binding on the Board. Thus, the Veteran is barred from obtaining VA benefits based on this period of service. Service connection may be established 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. For chronic diseases listed in 38 C.F.R. § 3.309, evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For VA purposes, hypertension is defined under 38 C.F.R. § 4.104, Diagnostic Code 7101. More specifically, Note (1) to this diagnostic code provides that the term hypertension means that the diastolic blood pressure (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In October 1960, during his induction evaluation, the Veteran's blood pressure was noted to be 148/84. On his November 1962 reenlistment evaluation, his blood pressure had decreased to 114/74. Notably, even on his separation examination after his dishonorable period of service, the Veteran's blood pressure was 120/80. He had a normal cardiac evaluation during the October 1960, November 1962, and October 1975 evaluations. The claims file contains very limited service treatment records; however, the available service treatment records do not include treatment for, diagnosis of, or complaints of symptoms of high blood pressure. There are no private or VA treatment records for the period between when the Veteran was discharged in 1975 and 1994. The Veteran has not indicated that the claims file is missing any treatment records. In October 1994, the Veteran's blood pressure was 128/82. Also, in October 1994 the Veteran's blood pressure was taken 9 times within 30 minutes. At no point was his diastolic number higher than 89, and at no point was his systolic number higher than 134. In August 1995, the Veteran was noted to have no cardiovascular medical history, and he was not on blood pressure medication. In June 1998, the Veteran was noted to have a diagnosis of hypertension, although this does not appear to be his initial diagnosis of hypertension. His blood pressure was 146/72. Ongoing treatment records include a diagnosis of hypertension. The Board notes that presumptive service connection is not applicable in this case because the evidence does not establish compensable hypertension within one year from the December 8, 1963 date of termination of honorable service. Thus, presumptive service connection is not warranted. 38 C.F.R. §§ 3.4, 3.12, 3.307, 3.309. The Board additionally finds that direct service connection is not warranted. The Veteran was not diagnosed with hypertension during service, and his blood pressure readings during his honorable period of service, and subsequent dishonorable period of service, did not meet VA's definition of hypertension. In fact, the Veteran's blood pressure readings improved between 1960 and 1975. Post-service treatment records include a diagnosis of hypertension from as early as 1998. While the 1998 notation of hypertension does not appear to be an initial diagnosis, the Veteran was noted to not have a cardiac history and was not on blood pressure medication in 1994. There is no medical evidence which associates his current hypertension with his period of honorable service. Generally, in adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, however, the Veteran's claim for service connection for hypertension is too sparse for a credibility analysis. He has filed his claim and appealed the denial of service connection for hypertension without making any additional statements. He has made no statements regarding when he was initially diagnosed, when he began treatment, etc. As the Veteran has made no statements regarding the continuity of his treatment or any description of ongoing symptoms of hypertension, the Board does not have any information upon which a credibility determination may be based. As there is no medical evidence relating the Veteran's current hypertension to his honorable service and there is no lay evidence from the Veteran regarding continuity, the Board finds that entitlement to service connection for hypertension is not warranted. Color Blindness Regarding the Veteran's claim for service connection for color blindness, the Board notes that congenital defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is generally precluded by regulation for such "defects", including color blindness, because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature", while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c). See also Quirin, 22 Vet. App. at 397; Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect, such as color blindness, can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. However, if it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). In short, service connection is available for congenital diseases, but not defects (without additional superimposed disease or injury), that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where a veteran seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. The Veteran's October 1960 induction evaluation did not note an eye defect of color blindness. During his November 1962 reenlistment examination, his color blindness was noted. A July 2007 statement from the Veteran's private vision doctor noted that the Veteran "demonstrates color blindness" with "difficulty in distinguishing both" red and green. With respect to the Veteran's in-service and post-service findings of defective color vision, congenital or developmental defects, including color blindness, are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303(c) , 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Service connection may be granted for congenital or hereditary diseases, if initially manifested in or aggravated by service, but not for defects such as defective color vision as diagnosed by the July 2007 private physician and in-service evaluator. VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In fact, congenital or developmental "defects" such as color blindness automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. See also Quirin, 22 Vet. App. at 397. As noted, the July 2007 VA examiner noted that the Veteran's color vision defect is red/green in nature, which would make it a congenital defect. In this regard, there is a lack of entitlement under the law to service connection for a congenital defect such as defective color vision, unless the evidence shows that it was subject to a superimposed disease or injury during military service that resulted in increased disability. 38 C.F.R. §§ 3.303(c) , 4.9, 4.127. See also VAOPGCPREC 82-90, 55 Fed Reg. 45,711 (July 18, 1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. In the present case, the Veteran has not alleged any disease or injury to his eyes. A review of the Veteran's service treatment records does not document any treatment for any eye disease or injury. As such, absent any probative evidence that the Veteran's defective color vision was additionally impacted by a superimposed disease or injury in service, it is not a disability for purposes of VA disability compensation as it is congenital in nature. 38 C.F.R. § 3.303(c). See, e.g., Browder v. Derwinski, 1 Vet. App. 204 (1991). Thus, service connection for defective color blindness is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for color blindness is denied. REMAND PTSD Unfortunately, a remand is required in regards to the Veteran's PTSD claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. The Board notes that the Veteran failed to provide stressor information to the RO when requested in in January and February 2008. A review of his VA treatment records revealed descriptions of helicopter engine failure. One VA treatment note indicated that the engine failure happened twice, and that the Veteran reported crash landing twice. As the Veteran has one period of other than honorable service, determining the date range for his alleged stressors is necessary. On remand, the Veteran should again be requested to submit information regarding his stressor of a helicopter crash, including a date range, for verification. The Veteran should also be afforded a VA psychiatric evaluation to determine whether he has a current diagnosis of PTSD, and if so, if it is related to his honorable period of service. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); 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.) Asbestosis As noted above, under McLendon v. Nicholson, 20 Vet. App. 79 (2006), four factors must be considered in determining whether a medical examination must be provided or medical opinion obtained: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. Regarding the Veteran's asbestosis claim, the claims file contains one notation of a "prognosis" of asbestosis, in a private record received by the RO in April 2007. This diagnosis is not otherwise found in the record, although the Veteran does have diagnoses of COPD and emphysema. There is no current chest x-ray contained in the record or on Virtual VA. The Veteran has reported that he was exposed to asbestos "while working in the motor pool while stationed in Korea," as well as at Fort Hood when he worked in "aviation." The Board notes that the Veteran's service in Korea was during his honorable period of service. Given the one diagnosis of asbestosis, and the Veteran's report of working on vehicles in Korea, the low standards of McLendon have been met, and the Veteran should be afforded a VA examination. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for any psychiatric disorder since he filed his request for service connection in June 2009. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. Provide the Veteran with another VA PTSD Questionnaire and request that he provide dates and locations of his alleged stressors of being involved in two helicopter crashes due to engine failure. 3. If the Veteran provides verifiable details of his alleged helicopter crashes, or any other stressors, then the AMC/RO should attempt to verify the stressors through appropriate sources. 4. After the above development has been completed, the Veteran should be afforded a VA psychiatric evaluation to determine the nature and etiology of any current psychiatric disorder, to include PTSD. All indicated tests should be performed and a full psychiatric history should be elicited. The Veteran's VA claims fold and access to Virtual records must be made available to the examiner for review. The examiner should furnish an opinion as to whether the Veteran has a current diagnosis of PTSD. The examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed psychiatric disorder is related to the Veteran's period of honorable service from October 1960 to December 1963, including specific incidents therein. The examiner must provide a complete rationale for all opinions provided. 5. The Veteran should be afforded a VA respiratory examination to determine the nature and etiology of any current respiratory disorder, to include asbestos. The Veteran's VA claims folder and virtual records must be made available to the examiner for review in connection with the examination. All indicated tests should be performed. A chest x-ray examination should be performed. The examiner should specifically identify all respiratory conditions found and specifically indicate whether there is evidence of a current diagnosis of asbestosis. The examiner should furnish an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed respiratory disorder is related to the Veteran's period of honorable service from October 1960 to December 1963. The examiner is requested to specifically note the private physician's diagnosis of asbestosis, and the Veteran's statements that he was exposed to asbestos in service. The rationale for all opinions expressed should be set forth. 6. After completing all indicated development, the RO/AMC should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on this matter. 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). ______________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs