Citation Nr: 1331657 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-35 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for hypertension. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 3. Entitlement to service connection for a respiratory disability, to include emphysema, asthma, bronchitis, and chronic obstructive pulmonary disease, claimed as due to asbestos and lead dust exposures. WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION 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 Veteran served on active duty with the United States Navy from May 1945 to Apri1 1949. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Cleveland, Ohio, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The decision was made by the Tiger Team in that office, designated to process claims for older Veterans and reduce backlog waiting times. Jurisdiction over the Veteran lays with the Montgomery, Alabama, RO, based on his residence. The Veteran and his wife testified at an August 2013 personal hearing held via videoconference from the RO. A transcript of the hearing is associated with the claims file. Based upon the Veteran's assertions at hearing, his written submissions, and applicable case law, the issues with regard to psychiatric and respiratory disabilities have been recharacterized. A Veteran, as a layperson, is not competent to distinguish between competing diagnoses, and so a claim for one disability is considered a claim for all alternatively diagnosed conditions as well. Clemons v. Shinseki, 23 Vet. App. 1 (2009). With regard to a respiratory disability, this encompasses the claim of service connection for emphysema; as the issue was already on appeal, there was no RO jurisdiction for a March 2012 decision on that matter. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Remand is required to ensure compliance with VA's duty to assist the Veteran is substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All Claims The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency, until the records are received or can be certified to be unavailable. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This includes service department records. Review of the claims file shows that in February 1953, service dental records, to include entry and separation examinations, were requested; these were received and associated with the claims file. In January 1977, VA requested service personnel records to establish the type of military discharge received by the Veteran. These also are associated with the claims file. However, with the exception of the April 1949 separation examination, no service treatment records are associated with the claims file. On their faces, the 1953 and 1977 requests did not include them, and the Board cannot therefore presume that all service department records have been obtained. Such records are clearly relevant to any determination of a service connection, as they would document complaints and treatment during active duty. On remand, appropriate requests of the National Personnel Records Center (NPRC) are required for the complete service treatment records. Further, to ensure a complete record, the Veteran's complete personnel record should be requested. It is possible that the prior 1977 request produced extracted records related to the VA's specific inquiry. Finally, updated VA treatment records should be obtained from the Central Alabama Veterans Health Care System. Hypertension The Board notes that should additional relevant service department records be received, 38 C.F.R. § 3.156(c) may apply, and reconsideration of the claim for service-connection for hypertension on the merits may be required. Additionally, the Veteran has submitted copies of a September 1992 Social Security Administration (SSA) decision granting entitlement to disability benefits based on cardiovascular conditions, including hypertension. The RO contacted SSA to obtain the supporting documentation, including medical records, but was informed that "There are no medical records. The person did not file for disability benefits OR, the person filed for disability benefits but no medical records were obtained." Unfortunately, neither reason for the lack of records provided by SSA can be true. The submitted decision establishes that a claim was filed, and it refers specifically to medical records, including examinations secured by SSA. The possibility that these records do exist and were merely not discovered cannot be foreclosed. Consistent with the duty to assist in obtaining Federal records, on remand further efforts must be made to secure the SSA records. Psychiatric Disorder The Veteran has alleged stressor incidents in service which have not been corroborated because he has been unable to supply necessary information to permit further meaningful inquiry. The allegations include seeing many pilots crash and die on the deck of the carrier he served on, and having to clean up the results of an injury on that same carrier in 1946. With regard to the second allegation, the Veteran's account has varied somewhat. At times it is reported to have happened in a passageway leading to the deck, at other times on the deck. Sometimes it was blood he saw and cleaned, other times it was body parts and bloody clothing. He has referenced seeing or hearing about a decapitation by an aircraft propeller, and has also stated he assumed such an injury had taken place based on seeing blood. In any case, given the lack of corroboration of the alleged stressor and the variance in the allegation, the Board determines that the evidence of record does not at this time show a possibility of a nexus between service and current diagnoses. There is simply insufficient competent and credible evidence to support the occurrence of the alleged events. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As treating VA doctors have stressed that the propeller/blood incident is the cause of diagnosed conditions, if that allegation is not accepted, there can be no valid diagnosis of any mental disorder for service connection purposes. However, should any newly acquired service treatment or medical records tend to support the allegations, or indicate the presence of psychiatric signs, symptoms, or diagnoses in service, a VA mental disorders examination would be necessary. Given the advanced age of the Veteran, on remand such examination should be provided to avoid further future delays should new records be obtained. Respiratory Disability The Veteran alleges that while stationed in Florida with Sub Group Five, he was detailed outside of his designated rating as a Steward Apprentice and tasked with assisting in the refitting and decommissioning of various vessels. This included extensive sanding, painting, and other construction type work which exposed him to dust he contends contained lead and asbestos. He did not use any protection. Although available service personnel records do not reflect these duties, they do show that the Veteran was assigned to the unit in Florida as he reports. His allegation is not inconsistent with the records, and resolving all doubt in his favor, the Board concludes for development purposes that lead dust and asbestos exposure in service were possible. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Records establish current diagnoses of a variety of respiratory conditions, and given the possibility of in-service exposures, the low threshold for examination is met. On remand, a respiratory examination must be provided. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. Obtain updated VA treatment records from the Central Alabama Veterans Health Care System, to include the Tuskegee VA medical center and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period of August 2013 to the present. 2. Submit appropriate requests for complete service treatment and personnel records to the NPRC or other custodian. If no additional records are available, such must be certified in writing and the Veteran notified. 3. Contact SSA and again request copies of any and all records obtained in support of and referenced in the September 1992 Administrative Law Judge decision. A copy of that decision should be supplied with the request. If no records are available, such must be certified in writing, and the Veteran notified. 4. AFTER COMPLETION OF DIRECTIVES 1-3 ABOVE, schedule the Veteran for a VA mental disorders examination. The claims folder must be reviewed in conjunction with the examination. The examiner must state whether a diagnosis of any acquired psychiatric disorder is warranted, and if so, whether it is at least as likely as not any such is caused or aggravated by service. A full and complete rationale for any opinions expressed is required. The examiner must include specific references to documentary evidence, if any, in the claims file supporting his or her conclusions, particularly in service treatment or personnel records. Also, the examiner should, for purposes of examination, presume that the Veteran was required to clean up blood aboard ship following an injury to another service member. 5. AFTER COMPLETION OF DIRECTIVES 1-3 ABOVE, schedule the Veteran for a VA respiratory disorders examination. All necessary testing must be accomplished. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed respiratory disorders, and for each opine as to whether it is at least as likely as not such is caused or aggravated by service. The examiner must specifically discuss the role, if any, of exposure to lead and asbestos dust in 1946 in the development of current ailments. A full and complete rationale for any opinions expressed is required. 6. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has 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). _________________________________________________ MICHAEL A. PAPPAS 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).