Citation Nr: 1334096 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-36 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including mood disorder and bipolar disorder. 2. Entitlement to service connection for hypertension, including as secondary to the acquired psychiatric disorder. 3. Entitlement to service connection for a heart condition, also including as secondary to the acquired psychiatric disorder. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for bronchitis, including as secondary to exposure to asbestos. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1976 to July 1978. This appeal to the Board of Veterans' Appeals (Board) is from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development and consideration. Specifically, the remand directed the AMC to obtain all outstanding medical treatment records since 2006, including to assist in determining whether the Veteran has bronchitis and a heart condition, and to provide VA Compensation and Pension examinations for medical nexus opinions regarding the etiologies of his claimed disabilities. He had these VA Compensation and Pension Examinations in January 2012, and the medical nexus opinions provided are responsive to this determinative issue of causation (except for the Veteran's heart condition and tinnitus claims, which therefore are again being remanded). Thus, other than that, there was compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board itself errs as a matter of law in failing to ensure compliance). After considering the results of those VA Compensation and Pension Examinations and, in particular, the medical opinions obtained, the AMC issued a July 2013 Supplemental Statement of the Case (SSOC) continuing to deny each of the Veteran's claims, so they are again before the Board. FINDINGS OF FACT 1. The Veteran has a mood disorder. 2. He did not have any psychiatric disorder while in service, however, or a psychosis to a compensable degree within one year of his discharge from service. 3. His mood disorder is less likely than not attributable to his time spent in service and, instead, the result of his longstanding substance abuse. 4. He has hypertension. 5. His hypertension did not begin during his service, however, or within one year of his discharge from service. 6. His hypertension is less likely than not attributable to his time spent in service. 7. He has bronchitis/chronic obstructive pulmonary disease (COPD). 8. His bronchitis/COPD did not begin during his service. 9. His bronchitis/COPD is less likely than not attributable to his time spent in service. 10. There is no indication he was exposed to asbestos during his service. Regardless, he does not have a condition attributable to asbestos exposure. CONCLUSIONS OF LAW 1. The Veteran has not shown that his acquired psychiatric disorder is attributable to a disease, an injury, or an event incurred in service or that his psychiatric disorder alternatively may be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. He has not shown that his hypertension is attributable to a disease or an injury incurred in service or that it may be presumed to have been incurred in service. Id. 3. He has not shown that his bronchitis/COPD is attributable to a disease, an injury, or an event incurred in service, including exposure to asbestos. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim. The VCAA was codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159. To satisfy its duty to notify, upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of the: 1) information and evidence that is necessary to substantiate the claim; 2) information and evidence that VA will obtain; and 3) information and evidence he is expected to provide. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). When the claim is for service connection, this notice should address all five elements of the claim: 1) Veteran status; 2) existence of disability; 3) a connection between the Veteran's service and the disability; but also the "downstream" 4) degree of disability, i.e., disability rating; and 5) effective date in the eventuality service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Also, ideally, this notice should precede the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004) (Pelegrini II). If, however, for whatever reason it did not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing all necessary VCAA notice and then readjudicating the claim - including in a Statement of the Case (SOC) or Supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, the Veteran was provided a letter in July 2006 containing all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess, and prior to the initial adjudication of the claims in November 2006, so in the preferred sequence according to the holding in Pelegrini. Thus, the Board concludes that the duty to notify has been met. To satisfy its duty to assist, VA must make reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This includes assisting him in the procurement of his service treatment records (STRs), also the records of his relevant evaluation and treatment since service, whether from VA or private providers, and obtaining necessary medical examinations and opinions. Id. In disability compensation (service-connection) claims, VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim.. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Court has clarified that the third element of McLendon establishes a "low threshold" and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence suggesting a nexus, but that 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. See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (While there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate the current disability may be associated with service. When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.). The Board concludes that this duty to assist also has been met. In satisfying this obligation, the Veteran's STRs were obtained, as were his post-service VA and private treatment records. Also, as a result of the Board remanding this claim in September 2011, he was given appropriate VA Compensation and Pension examinations regarding these disorders being claimed, but especially for medical nexus opinions concerning the likelihood they are related or attributable to his military service. This critical determination was made after reviewing the entire claims folder for the pertinent history, and the VA examiner's opinions are responsive to the determinative issues of whether there is current disability and, assuming so, the cause of it in relation to the Veteran's military service. So as already alluded to, there was compliance with this remand directive, except regarding his claims for tinnitus and a heart condition, certainly what could be considered acceptable substantial compliance. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008). There is no indication there is any relevant evidence that is still outstanding, so needing to be obtained, at least as concerning these claims being decided rather than again remanded. The Veteran has indicated that he is receiving Social Security Administration (SSA) benefits. See a statement by him to this effect during a January 2006 VA substance abuse program consultation. Neither a copy of the administrative decision from the SSA awarding benefits nor the medical records considered have been requested by the RO or provided by the Veteran. Normally, VA has a duty to attempt to obtain SSA records in this circumstance, when it has notice of their existence. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit Court acknowledged that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit Court rejected the appellant's argument in Golz that SSA records are always relevant and that VA always is required to obtain them. The Federal Circuit Court defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321. The Federal Circuit Court made clear that, "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit Court therefore concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. Here, the Veteran has not reported that he is receiving SSA benefits because of any of his disabilities at issue in this appeal. Pertinently, he indicated during that consultation mentioned that he was receiving SSA benefits for conditions involving his hip and eye. So the specific conditions he mentioned have no relevance to this VA appeal. Moreover, neither he nor his representative has contended that the medical records considered in connection with his SSA claim have any bearing on these VA claims currently on appeal. Accordingly, the Board finds that obtaining the Veteran's SSA records would not aid in substantiating his claims because they would not "give rise to pertinent information" concerning his acquired psychiatric disorder, hypertension, heart condition, tinnitus, or bronchitis/COPD. Further, because there is no reasonable possibility that his SSA records would assist in substantiating these currently appealed claims, although VA is on notice that he is in receipt of SSA disability benefits, the Board finds that there is no duty to obtain these records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). II. Standard of Review In deciding these claims, the Board has reviewed all of the relevant evidence in the claims file, both the physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Merits of the Claims The Veteran contends that his acquired psychiatric disorder, hypertension, and bronchitis result from his experience as an Army mechanic. In the alternative, he claims that his hypertension is secondary to, meaning caused or aggravated by, his acquired psychiatric disorder. His claims, then, are predicated on both direct and secondary service connection. The Board also will consider the additional notion of presumptive service connection. In adjudicating these claims, the Board must consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed prior thereto. This presumption attaches only where there has been an induction examination during which the later complained of disability was not detected ("noted"). See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Since the Veteran's acquired psychiatric disorder, hypertension, and bronchitis/COPD were not noted upon his entrance into service, it must be presumed he did not have them when entering service. It still has to be shown that he has them because of his service, however. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). There is an alternative path to service connection using a presumption. Presumptive service connection is available to Veterans who suffer from certain chronic disorders and diseases that manifest during service or within one year after service to the required minimum compensable degree of at least 10-percent disabling. This presumption is rebuttable by affirmative evidence to the contrary, however. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Hypertension, a precursor to heart disease, is one of the conditions identified by § 3.309(a) as chronic, per se. So, too, are psychoses and, according to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. If the conditions to presumptive service connection cannot be said to be "chronic" in the medical sense, a Veteran may still yet succeed if he can show a continuity of symptomatology under 38 C.F.R. § 3.303(b), but only assuming his condition is one listed in § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2013). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though, not always, required to associate the claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). Here, though, regarding direct and presumptive service connection, there is no indication the Veteran's hypertension began during his service or within the required one year presumptive period following the conclusion of his service, certainly not to the required minimum compensable degree of at least 10-percent disabling. According to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension), the minimum compensable rating of 10 percent is warranted when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, or when systolic pressure is predominantly 160 or more. To the contrary, the Veteran indicated during his January 2012 VA examination that his hypertension had begun "in the 2000s," and he specifically denied that he had had the condition while in service. The first ascertainable diagnosis of this condition is in an April 2006 VA treatment record. Thus, since his hypertension did not begin during his service or even within one year of his separation from service in July 1978, so meaning by July 1979, much less to the required minimum compensable degree of at least 10-percent disabling, both direct and presumptive service connection are unwarranted. Moreover, like with his hypertension, he was not diagnosed with a psychosis during his service or within a year of his discharge from service. There is one trip noted to a mental health facility in 1978, so during his service, but no further information was given and no diagnosis rendered either then or afterwards at any point before he separated from service. He has specifically made a claim of secondary service connection regarding his hypertension and, in furtherance of this claim, has submitted medical literature in support of the theory that his hypertension is secondary to his acquired psychiatric disorder. However, since the Board is denying his underlying claim of entitlement to service connection for an acquired psychiatric disorder, so, too, must the Board deny his claim for hypertension on the premise it is secondary (i.e., a derivative) of the acquired psychiatric disorder. This avenue secondarily relating his hypertension to his service by way of the acquired psychiatric disorder is unavailable to him since the psychiatric disorder, itself, is not service connected. With regards to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). However, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons based on medical evidence in the record for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Colvin v. Derwinksi, 1 Vet. Appl. 171 (1991)). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession." Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)). However, a Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[Competency] is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") In order to grant a Veteran's claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the documentation of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Acquired Psychiatric Disorder The Veteran contends that his acquired psychiatric disorder relates back to his time in service. The claims file contains various diagnoses of psychiatric disorders over the years. His VA treatment records first show diagnoses in April 1998 of "psychotic disorder with hallucinations and delusions with onset during intoxication and withdrawal from alcohol" and "alcohol and cocaine-induced mood disorder with depressive features with onset during intoxication and withdrawal for alcohol and cocaine". Subsequently, he was diagnosed with mood disorder in June 2000 and bipolar disorder, as well as substance-induced mood disorder, in April 2006. In November 2011, his treatment records indicate he again was diagnosed with substance-induced mood disorder. During his January 2012 VA examination, he was diagnosed with both polysubstance dependence and mood disorder. Therefore, resolution of this claim ultimately turns instead on whether there also is the required probative (meaning competent and credible) evidence attributing this disorder, irrespective of the particular diagnosis, to his military service. See again Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). And, unfortunately, in part based on the additional medical opinion obtained on remand concerning this determinative issue of causation, it is in this critical other respect that the claim fails. The Veteran's STRs do not contain any diagnosis of a psychiatric disorder. There is a notation that, in February 1978, he was seen at a mental health facility. There is also a May 1978 record of him participating in a substance abuse program. During the June 1978 separation examination, the examiner noted that the Veteran's psychiatric state was normal. In the accompanying self-report of medical history, the Veteran indicated that he never had experienced frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, or periods of unconsciousness. He also denied ever being treated for any mental condition. His military service ended in July 1978. His post-service VA treatment records do not contain any analysis of or comment on the etiology of his present-day mental condition. He has been treated several times since 1998 for substance abuse and his mental disorder, which has been variously diagnosed as mood disorder, depression, and bipolar disorder. He spent time in VA's Substance Abuse Treatment Program and was discharged in 2006. He was homeless for a time in the 2000s, most recently 2010, and received treatment for suicidal thoughts and depression. At that time, he received inpatient treatment in a VA psychiatric ward at the VA Medical Center (VAMC) in Tuskegee, Alabama. However, there is nothing in his treatment records addressing the etiology of his acquired psychiatric disorder, other than the various diagnoses describing his mood disorder as "substance[-]induced." Regarding this determinative issue of the etiology of his mental condition, the Board places the most weight on the opinion offered following the January 2012 VA Compensation and Pension examination. The examiner reviewed the Veteran's claims file before rendering his opinion. He noted the Veteran's diagnoses of polysubstance abuse and mood disorder. He remarked that the Veteran's mental conditions caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine and behavior, self-care and conversation. The examination report contains a detailed summary of the Veteran's mental health history. He reported that, before his time in service, he had received counseling in special education classes, took stimulant medications, had behavior and temper problems, suffered from hyperactivity, and went to substance abuse classes. While in the military, he reported enrollment in additional substance abuse classes. After the military, he reported four to five trips to VA a year for psychiatric reasons. Specifically commenting on his substance abuse, he acknowledged heavy alcohol use before service, as well as drug use in the form of marijuana and pills as a teenager. He stated that he continued to drink heavily in the military and used hash and marijuana. After service, he continued the heavy alcohol and marijuana use, as well as heavy use of crack cocaine. The examiner observed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. The Veteran reported getting depressed when thinking about the past. He also reported his then recent suicide attempt, where he walked into oncoming traffic. The examiner ultimately determined the Veteran's acquired psychiatric disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that, because the Veteran's substance abuse had preceded his time in the military, his current diagnosis of polysubstance dependence was not considered to be due to his military service. The examiner attributed the Veteran's diagnosis of mood disorder to his longstanding history of substance use. Disability resulting from alcohol or drug abuse, since it is willful misconduct, generally cannot be service connected. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.303(c)(3) and (d). VA's General Counsel has confirmed that direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is precluded for purposes of all VA benefits for a claim, as here, filed after October 31, 1990. See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). There is just a very limited exception to this general rule. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Here, the only competent and credible medical evidence in the file regarding the etiology of the Veteran's mental illness concludes that his current mood disorder is not attributable to his military service, but instead likely the result of his longstanding history of substance abuse. Indeed, even he competently reported that this chronic drug and alcohol abuse problem began before his service. Moreover, according to the VA compensation examiner, the polysubstance abuse is the reason for the mood disorder, not vice versa, so there is no nonwillful misconduct, service-connected disability for the Veteran to base his polysubstance abuse on in order to utilize the Allen exception to the general rule. For these reasons and bases, the preponderance of the evidence is against this claim, so there is no reasonable doubt to resolve in the Veteran's favor, and his claim for an acquired psychiatric disorder resultantly must be denied. In deciding this claim, the Board has considered the January 2012 letter submitted by Pathfinder, a substance abuse rehabilitation program, on behalf of the Veteran. However, this letter does not speak to the etiology of his mental condition, only instead to its unfortunate effects and consequences. Hypertension The Veteran also contends that his hypertension relates back to his time in service or, as also mentioned, that it is secondary to his acquired psychiatric disorder. He was diagnosed with hypertension in April 2006 at a VAMC and also received prescription medication for treatment of this condition at Flowers Hospital in September 2006. This assessment has remained the same throughout his treatment at VAMCs during the years since, and was confirmed during his January 2012 VA compensation examination. But his STRs do not contain any mention or diagnosis of hypertension, meaning persistently elevated blood pressure. During his April 1976 military entrance examination, the examiner did not note the condition and listed the Veteran's blood pressure as 118/76 mmHg, so within normal limits. On the accompanying self-report of medical history, the Veteran denied ever suffering from high or low blood pressure, much less on a persistent basis. His blood pressure during his later June 1978 military separation examination was 106/66 mmHg, so still well within normal limits, and he again denied ever suffering from high or low blood pressure in an accompanying report of medical history. Simply put, there is no suggestion of hypertension in his STRs. There equally is no suggestion of this condition's presence even within the one-year presumptive period following the conclusion of his service, certainly not to the required minimum compensable degree of at least 10-percent disabling. Partly due to the absence of any hypertension in service, or for so relatively long after service, the VA examiner who performed the January 2012 compensation and pension examination concluded the Veteran's hypertension was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also stated that the hypertension was due to genetics, family history, and dietary conditions. During his examination of the Veteran, the Veteran had conceded that his hypertension had been first diagnosed "in the early 2000s." He also specifically had denied that this condition had started during his service. As well, he reported a "strong family history" of hypertension. All of these reasons led the VA examiner to completely disassociate the hypertension from the Veteran's military service. The Board places the most weight of the submitted evidence on this VA examiner's unfavorable opinion. There is no evidence establishing an etiology of the Veteran's hypertension that links it back to his time in service; instead, to the contrary, there is an explicit denial from the Veteran that the condition began during his service or even during the immediately ensuing years. For these reasons and bases, the preponderance of the evidence is against his claim, so there is no reasonable doubt to resolve in his favor, and his claim for hypertension resultantly must be denied. Bronchitis/COPD As well, the Veteran contends that his current bronchitis condition relates back to his time spent in service, including specifically to possible asbestos exposure while working as a mechanic in the Army. The Board remanded this claim, in part, to determine whether he in fact has a current diagnosis of bronchitis or a like condition. However, according to his VA treatment records, it appears he had a diagnosis of "bronchitis/COPD" in December 2009, so over three years after submitting his original claim for benefits. Regardless, this diagnosis was confirmed during his January 2012 VA compensation and pension examination, when the examiner commented that the Veteran had to use inhalational medication daily to treat his condition. So there is no disputing he has bronchitis/COPD, but there still has to be attribution of it to his military service to warrant the granting of service connection. His STRs do not contain a diagnosis of bronchitis or COPD or mention any relevant complaints such as shortness of breath, productive cough, wheezing, fatigue, etc. During the April 1976 entrance examination, the examiner indicated the Veteran's mouth and throat, as well as his lungs and chest, were normal. The Veteran denied having any throat or lung problem on his accompanying self report of medical history. His later June 1978 separation examination and report of medical history was the same in this regard; there again were no relevant subjective complaints or objective clinical findings, including a pertinent diagnosis. The Veteran was treated twice for a sore throat in service, in May and November 1976. The examiner attributed this condition to strep throat and inflamed tonsils. There is no mention of the problem beyond the latter date. Additionally, there is no mention in the STRs of any chronic problem involving the lungs, such as on account of bronchitis or COPD. Partly because of the lack of suggestion of bronchitis in service, the examiner who performed the January 2012 VA examination opined that the Veteran's bronchitis was less likely than not (less than 50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also determined the Veteran's condition appeared to have begun well after his service. He further explained that the Veteran's pulmonary condition "is due to his longstanding history of inhalation drug use." The examiner therefore completely disassociated the Veteran's bronchitis/COPD from his service. Regarding the Veteran's claim of bronchitis secondary to asbestos exposure, the examiner stated, "[t]he nature of the history and the evidence does not show any evidence for asbestos related lung disease." With regards to the necessary development of this alternative theory of entitlement, there is no statute specifically dealing with service connection for asbestos-related diseases, nor has the Secretary of VA promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). VA must analyze the Veteran's claim for service connection for asbestos-related disease under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Recognizing this, with asbestos-related claims, the Board must determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). VA Adjudication Procedure Manual Rewrite (M21-1MR) provides that, where asbestos exposure is alleged, VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational and other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, at IV.ii.2.C.9. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C essentially acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Regarding the M21-1MR's exclusion of prostate cancer from urogenital cancers that may result from inhalation of asbestos fibers, VA's General Counsel determined that the M21-1MR provisions discussing asbestos and asbestos-related diseases generally are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in service. Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. 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. M21-1MR, IV.ii.2.C.9.f. Although the Veteran was a mechanic in the Army, it does not necessarily follow that he was exposed to asbestos during his service in that or any other capacity. 38 U.S.C.A. § 1154(a). But even assuming he was exposed to asbestos, as alleged, perhaps working on brake linings, the report of his January 2012 VA examination indicates he does not suffer from any current condition attributable to asbestos exposure. There is no probative evidence tending to support the notion he developed bronchitis or COPD as a result of exposure to asbestos, even accepting that diseases attributable to asbestos exposure often do not fully develop or manifest until many years later, sometimes not until anywhere from 10-45 years after exposure, thus even accepting this acknowledged latency. Moreover, there has to be radiographic confirmation of a disease typically resulting from asbestos exposure, and this is not the case here. In fact, the VA examiner reviewed a November 2011 chest X-ray and noted that the Veteran's lungs were clear, so did not show the type of damage that would be characteristic of prior exposure to asbestos, so including during the Veteran's military service. For these reasons and bases, the preponderance of the evidence is against this claim, so there is no reasonable doubt to resolve in the Veteran's favor, and this claim for bronchitis/COPD, including as secondary to asbestos exposure, resultantly must be denied. ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, including mood disorder and bipolar disorder, is denied. The claim of entitlement to service connection for hypertension, including as secondary to the acquired psychiatric disorder, is denied. The claim of entitlement to service connection for bronchitis, including as secondary to exposure to asbestos, is denied. REMAND Unfortunately, the Veteran's remaining claims must be remanded again for still further development. The Board concludes that there has not been compliance with the prior September 2011 remand directives - at least as specifically concerning these remaining claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Namely, the Board called for a VA medical opinion regarding the etiology of the Veteran's tinnitus. The Veteran was provided a VA examination for this condition in January 2012. Of interest, he stated that the onset of his tinnitus was in December 2011. However, the examiner reportedly nonetheless could not render an opinion regarding its etiology without resorting to mere speculation, as the Veteran's claims folder was not forwarded to him for review. The claims file was forwarded to the examiner for an addendum opinion in February 2012. The examiner, however, stated that an opinion was not requested on the etiology of the Veteran's tinnitus and therefore did not provide one. An opinion was clearly required by remand directive two and the Board cannot make a medical conclusion in the examiner's place. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (indicating the Board is prohibited from substituting its own unsubstantiated medical opinion). Thus, this claim again must be remanded so the examiner can provide the needed opinion on the etiology of the Veteran's tinnitus. Regarding the Veteran's claim for a heart condition, the Board remanded this other claim in part to determine whether the Veteran has a current heart condition. The examiner who performed the January 2012 VA examination determined the Veteran did have ischemic heart disease with stenting, noting that it was first diagnosed in the "mid 2000s." It nevertheless is unclear from the examination report whether the examiner made an independent finding of ischemic heart disease or simply wrote what the Veteran had self reported. There are no records in the claims file of the Veteran being evaluated or undergoing treatment for ischemic heart disease in the mid 2000s. There is notation of an assessment of "CHF," so presumably a reference to congestive heart failure, in April 2006. The examiner remarked that he had reviewed a chest X-ray of the Veteran from November 2011, but did not indicate what that X-ray showed. Thus, it is unclear whether the Veteran has a current heart condition that was observed during his most recent VA compensation examination, much less the etiology of it in terms of whether it is related or attributable to his military service. So this claim must be again remanded for further development to comply with the original remand directive. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Contact the Veteran and inquire about any outstanding records dealing with an "ischemic heart disease" diagnosis in the mid 2000s. If he confirms he received evaluation or treatment for this disease, attempt to obtain these records, which assumes they are not already in the file. The amount of effort needed to be expended in obtaining any identified records depends on who has custody of them. If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) controls if they are. So make as many attempts as this VA regulation stipulates, depending again on who has custody of the outstanding records. Also appropriately notify the Veteran if unable to obtain any identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, or at least exhausting all attempts to obtain additional records, forward the claims folder to the physician who performed the January 2012 VA examination regarding the Veteran's claimed heart condition for an addendum opinion. Specifically, the examiner must indicate whether the Veteran has a current heart condition - meaning one since the filing of this claim. If confirmed he does, the examiner must specifically indicate the diagnosis and basis of it. If, as an example, the November 2011 chest X-ray is used for this diagnosis, the examiner must specify this. If the examiner needs to perform further diagnostic testing on the Veteran, schedule him for another examination on the earliest possible date. All necessary diagnostic testing and evaluation needed to make this determination of diagnosis should be performed. The designated examiner must review the claims file, including a complete copy of this remand, for the Veteran's pertinent medical and other history. If the Veteran is found to indeed have a current heart condition of some sort, the examiner then must indicate the likelihood (very likely, as likely as not, or unlikely) this current heart condition: (1) incepted during the Veteran's military service from April 1976 to July 1978, or (2) to a compensable degree of at least 10-percent disabling within the one-year presumptive period following the conclusion of his service, so by July 1979, or (3) is otherwise related or attributable to his military service. *The examiner need not additionally comment on the possibility the heart condition is secondary to (meaning caused or aggravated by) the acquired psychiatric disorder since in this decision the Board has denied entitlement to service connection for the acquired psychiatric disorder. The examiner must address the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If no opinion can be rendered concerning this claim without resorting to mere speculation, explain why this is not possible or feasible - such as clarifying whether the examiner simply is unable to comment since the limits of medical knowledge have been exhausted or, instead, for example, there are multiple possible etiologies with none more prevalent than another, or he needs further information to assist in making this nexus determination or other procurable and assembled data. If it is not possible or feasible to have this same VA examiner comment further, then have someone else equally qualified provide this necessary medical opinion, which may require having the Veteran reexamined, but this is left to the designee's discretion. 3. Next forward the claims folder to the examiner who provided the January 2012 VA examination and February 2012 addendum for additional supplemental comment regarding the Veteran's tinnitus. Specifically, the examiner should address the likelihood (very likely, as likely as not, or unlikely) that any current tinnitus dates back to the Veteran's military service from April 1976 to July 1978 or is otherwise related or attributable to his military service. The examiner must address the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If no opinion can be rendered concerning this claim without resorting to mere speculation, explain why this is not possible or feasible - such as clarifying whether the examiner simply is unable to comment since the limits of medical knowledge have been exhausted or, instead, for example, there are multiple possible etiologies with none more prevalent than another, or he needs further information to assist in making this nexus determination or other procurable and assembled data. If it is not possible or feasible to have this same VA examiner comment further, then have someone else equally qualified provide this necessary medical opinion, which may require having the Veteran reexamined, but this is left to the designee's discretion. 4. Then readjudicate these remaining claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran another SSOC and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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 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). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs