Citation Nr: 1334511 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-04 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), including as due to exposure to asbestos and to herbicides. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty for training from January 1961 to July 1961 and on active duty from June 1967 to October 1968. These matters come before the Board of Veterans' Appeals on appeal from November 2008 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the November 2008 decision, the RO denied claims for service connection for what it identified as PTSD and COPD; it also denied the Veteran's claim for entitlement to a TDIU. In the March 2010 rating decision, the RO denied the Veteran's claim for service connection for hearing loss. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently has held that, although an appellant's claim identified only a single diagnosed disorder, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors-including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed claims seeking service connection for PTSD and COPD specifically, the Board notes that the Veteran has not been diagnosed with PTSD but has been assigned diagnoses of depression and psychosis, as well as both COPD and chronic bronchitis. The Board thus finds that, pursuant to Clemons, supra, the Veteran's service connection claims are more accurately classified as styled above. See Clemons, 23 Vet. App. 1 (2009). The decision below addresses the Veteran's claims of service connection for hearing loss and a respiratory disorder. The remaining claims are addressed in the remand that follows the decision. FINDINGS OF FACT 1. Hearing loss was not manifested during service, sensorineural hearing loss was not exhibited within the first post service year, and current hearing loss is not otherwise related to the Veteran's active service. 2. A preponderance of the evidence is against a finding that the Veteran was exposed to an herbicide agent during active military service. 3. A chronic respiratory disability, to include COPD, did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in or aggravated by active service, and sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. A chronic respiratory disorder, to include COPD, was not incurred or aggravated in service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in VCAA letters issued in November 2007, June 2008, February 2009 and June 2009, which predated the November 2008 and March 2010 rating decisions. See id. The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claims of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's service treatment records and post-service treatment records from both private and VA treatment providers. The Veteran and his representative have submitted written argument in support of his claims. There is otherwise no indication of relevant, outstanding records which would support the claims decided herein. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). Further, the Veteran was provided VA examination concerning his claim for hearing loss in September 2009. The Board finds that the September 2009 examination report is thorough and contains sufficient information to decide the hearing loss issue on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when there is: (1) evidence of a current disability; (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation; (3) an indication that the current disability may be related to the in-service event; and (4) insufficient evidence to decide the case. The Board is aware that no VA examination was provided to the Veteran in conjunction with his claim for service connection for a respiratory disorder but notes that the record does not call for one. See 38 C.F.R. § 3.159(c)(4) (2013). In this case, as discussed below, there is simply no indication that the Veteran currently experiences asbestosis or otherwise that any current respiratory disorder is in any way linked to active duty. As such, VA is not required to afford the Veteran an examination, and therefore, VA has no duty to inform or assist that was unmet. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). See also McLendon, 20 Vet. App. at 84-86 (with no indication that a disability or persistent or recurrent symptoms of a disability may be associated with the service or another service-connected disability, claim may be denied where claimant's submissions are insufficient to grant benefits or trigger duty to assist). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues decided herein. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Regarding the Veteran's claim for service connection for hearing loss, the Board notes that service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. . . . For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Relevant evidence of record consists of the Veteran's service treatment records, as well as post-service treatment records and the report of VA examination conducted in September 2009. At examinations conducted at the Veteran's entry and separation from his period of active duty for training, his hearing was found to be a normal 15/15 to whisper-voice testing. Similarly, whisper-voice testing performed at the Veteran's October 1968 separation examination returned normal results of 15/15. The Veteran did undergo audiometric testing in June 1967 at his entrance into active duty. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -10 (0) -10 (0) -5 (5) 20 (25) LEFT -5 (10) -5 (5) -5 (5) 20 (25) 35 (40) (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) The Veteran responded "No" at that time-and on all other service examinations-when asked if he experienced hearing loss or any other ear problems. The Veteran reported some trouble hearing at a January 1989 VA treatment visit. He was similarly noted to be "a little bit hard of hearing" at a January 1990 treatment visit, but no formal diagnosis of hearing loss was assigned. In July 2009, the Veteran sought VA treatment complaining of difficulty understanding speech. At that time, he reported that he first began having problems with his hearing approximately ten years prior. He also stated that he had been exposed to noise from "a lot of large weapons fire" while in service. He was diagnosed with sensorineural hearing loss and prescribed hearing aids. No diagnosis or etiological opinion as to the hearing loss was provided. In September 2009, the Veteran underwent a VA examination. The examiner reviewed the Veteran's claims file and noted that his VA treatment record showed that he has consistently reported having first been bothered by hearing loss approximately ten years earlier. The Veteran reported that he had been exposed to acoustic trauma from weapons fire and heavy equipment operation while in service. Upon audiometric testing, the examiner diagnosed bilateral sensorineural hearing loss. The examiner concluded, however, that given the lack of audiometric testing performed at the Veteran's first entry into service and his final separation in October 1968, as well as the finding of some hearing loss at his June 1967 entrance into his second period of service and the fact that he did not complain of hearing loss during service or for many years thereafter, it was less likely than not that his current hearing loss is etiologically linked to active duty. As detailed, service treatment records are negative for complaints or findings of hearing loss during the first period of service. Left ear hearing loss was noted on examination at entry into active service. However, there were no reports of problems hearing or chronic hearing loss during that period of service and no showing of an increase in left ear hearing loss. The Veteran's hearing was normal to whisper-voice testing conducted at service separation in October 1968. While the lack of in-service findings of complaints of hearing loss in service does not preclude a finding of service connection, as detailed above, hearing loss was not shown again until January 1989, over twenty years after separation from service. The Board finds compelling the absence of any subjective complaints of hearing loss for decades after discharge from service or of persistent symptoms of hearing loss between service discharge and 1989, and an absence of any objective evidence of hearing loss for more than twenty years after discharge from service. The lack of any evidence of continuing hearing loss for many years between the period of active duty and the initial findings or documented complaints of hearing loss weighs against the claim. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Likewise, a VA physician reviewed the claims folder, which included service treatment records, in September 2009. As detailed, the examiner opined that the Veteran's current hearing loss is not due to military noise exposure. The examiner based this opinion on a thorough review of the claims folder, to include normal hearing found on separation from service and no complaints of hearing loss for many years thereafter, as well as the Veteran's own contentions of having not noticed any problems with his hearing until more than thirty years after his separation from service. The opinion of the September 2009 VA examiner leads to a finding that the Veteran's hearing loss is less likely than not related to service. The Board accepts the examiner's opinion as being the most probative medical evidence on the subject, as such was based on a review of all historical records, and contains detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). Importantly, this opinion is not contradicted by any medical evidence of record. The Board has also considered the Veteran's contention that a relationship exists between his current hearing loss and his noise exposure experienced during service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In this capacity, the Board finds that the Veteran is competent to attest to noise exposure he experienced during service, and finds his statements of noise exposure credible. The Board concedes that the Veteran had noise exposure during his periods of active service. However, the Veteran is not competent to provide an opinion that his current hearing loss is due to his in-service noise exposure, as he does not have the requisite medical expertise. Although it is conceded that he had noise exposure during service, the fact remains that his hearing was normal during active duty for training. The left ear hearing loss noted at entry into service was not shown to increase in severity and no right ear hearing loss was demonstrated. No hearing loss was noted at separation from service, and hearing loss was not again shown until decades after separation from service. Further, although the Veteran has stated to VA that his hearing loss began in service, the Veteran reported at his July 2009 VA audiology evaluation, as well as at his September 2009 VA examination, that he had only had problems hearing for about ten years prior to the examination. The September 2009 VA examiner was aware of the Veteran's in-service noise exposure per the Veteran's statements and review of the claims folder, but nevertheless concluded that his hearing loss was not due to or aggravated by service. The Veteran's contentions are outweighed by the medical evidence and opinion of the VA medical examiner, which reflect that his hearing loss is not due to noise exposure in service. To the extent the Veteran is claiming that he noticed difficulty hearing since service, he is competent to attest to this. However, the Veteran's contentions regarding the onset of his hearing loss have been inconsistent, rendering his assertions of in-service onset less credible. In 2009, he described the onset of hearing loss as ten years earlier; however, he has stated to VA that he first experienced hearing loss in service. The Board thus finds that the negative clinical and documentary evidence for decades following service is more probative than the remote assertions of the Veteran. The lack of continuity of treatment may bear in a merits determination on the credibility of the evidence of continuity of symptoms by lay parties. Savage v. Gober, 10 Vet. App. 488, 496 (1997). The questions involved regarding causation are medical in nature. As discussed above, the medical opinion of the VA medical examiner (based on a review of the claims file and with knowledge of the Veteran's in-service duties and in-service complaints) was negative. The Board finds this opinion more probative on the questions of the etiology of the Veteran's hearing loss than the Veteran's unsubstantiated lay opinion. The preponderance of the evidence of record is against the Veteran's claim of service connection for hearing loss. With regard to the Veteran's claim for service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), including as due to exposure to asbestos and to herbicides, there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The Court has held that VA must analyze an appellant's claim of entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. An asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Court has further held that in adjudicating asbestos-related claims, it must be determined whether development procedures applicable to such claims have been followed. See Ashford v. Brown, 10 Vet. App. 120 (1997). The Manual guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that rating specialists are to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. The Veteran asserts that he was exposed to asbestos during service while serving aboard the USS Yorktown and that in-service exposure led to his current respiratory problems. He has also contended in the alternative that he was exposed to herbicides while on active duty and that his current respiratory problems stem from that exposure. Review of the Veteran's service treatment records reflects that they are silent as to any complaints or diagnosis of a respiratory disorder. Private treatment records reflect that he was seen in May 1996 for what was diagnosed on radiological examination as "mild pulmonary emphysema." Radiological examination in January 1997 showed a normal chest, although he was diagnosed with COPD via radiological evaluation in March 1999. Since that time, he has continued to carry a diagnosis of COPD. In addition, he was noted in February 2004 to have a history of pneumonia. Private treatment records from July 2000 reflect that the Veteran was a smoker, and records from 2004 reflect that the Veteran was diagnosed with, variously, COPD, bronchitis, and pneumonia. However, x-ray study done in June 2004 found no active cardiopulmonary disease. Further private treatment records from 2007 document an ongoing diagnosis of COPD, which his physician opined in October 2007 was due to "years of tobacco abuse." The Veteran has also submitted letters from private physicians dated in May 2008 and June 2009. In the May 2008 letter, the physician stated that she believed the Veteran's "condition is service related," due to his reported exposure to herbicides. Similarly, in June 2009, a different physician stated that the Veteran had emphysema that "may be related to your agent orange exposure." Initially, the Board notes that service personnel records do not contain any corroborating evidence that the Veteran was exposed to asbestos during his period of active service on the USS Yorktown. However, in any event, even if the Board were to concede his claims of exposure to asbestos during his service on the USS Yorktown (see McGinty, 4 Vet. App. at 432) are plausible, the claim of service connection for a respiratory disorder must still be denied on that basis. In that connection, the Board notes that the Veteran has not submitted medical evidence of a disability manifested by asbestos exposure, to include asbestosis. As detailed above, in order for there to be a clinical diagnosis of asbestosis, one of the requirements is a showing of radiographic evidence of parenchymal disease. However, there is no competent evidence that the Veteran has or ever has had a disease manifested by asbestos exposure. In particular, the Board notes that January 1997 and June 2004 chest x-ray examination reports reflect that the Veteran had no cardiopulmonary disease. Thus, there is no radiographic evidence of an asbestos-related disability and the Veteran's claim must be denied on the basis of exposure to asbestos. VA regulations also provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2013). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease and coronary spasm) and coronary bypass surgery, and stable, unstable and Prinzmetal's angina, all chronic B-cell leukemias (including hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In general, for service connection to be granted for one of these diseases, it must be manifested to a degree of 10 percent or more at any time after service. Chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must be manifest to a degree of 10 percent within one year after the last date on which the Veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2013); 38 C.F.R. § 3.307(a)(6)(ii); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Here, the Board acknowledges that the Veteran claims that he was exposed to herbicides while on active duty. However, his service record confirms only that he was stationed on board the USS Yorktown; there is no indication that he ever actually served in Vietnam. In this case, the Board finds that no evidence of record establishes that the Veteran had actual duty or visitation in Vietnam. Significantly, although the Veteran's service personnel records do document that he was assigned to the USS Yorktown, the National Personnel Records Center (NPRC) noted in a July 2008 report that it found no evidence to substantiate any service in Vietnam. Additionally, the Veteran has not provided any proof of duty or visitation in the Republic of Vietnam, which requires his presence at some point on the landmass or inland waters of Vietnam in order to benefit from the presumption. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Based on the above analysis, the Board finds that the evidence does not show Vietnam service; specifically, there is no indication that the Veteran set foot on the landmass or inland waters of Vietnam. The lack of any proof of in-country service in Vietnam from the service department is persuasive. The only evidence the Veteran has submitted to substantiate his claimed in-country service is an unlabeled picture of two soldiers, which he claims was taken in Vietnam. However, the photograph does not offer any indication as to where it was taken. Therefore, the Board finds that the Veteran's claim for service connection for a respiratory disorder fails on a presumptive basis for exposure to herbicides because no evidence of record establishes that the Veteran had actual duty or visitation in Vietnam. Further, and regardless of his claimed exposure to herbicides, the Board notes that bronchitis, COPD, and pneumonia-the various respiratory diseases with which the Veteran has been diagnosed since service-are not noted under 38 C.F.R. § 3.309 as having a positive association with herbicide exposure. Therefore, the Veteran's claimed respiratory disorder would not be presumed to be the result of in-service disease or injury even if he could establish service in Vietnam. Further, the only medical evidence linking the Veteran's claimed respiratory disorder to service-the May 2008 and June 2009 private physicians' letters-are based entirely on the Veteran's inaccurate report of having been exposed to herbicides during service. As there is no evidence to substantiate that the Veteran was actually exposed to herbicides, the Board thus finds that these statements have no probative value. The Board notes that the presumptive service connection procedure does not foreclose proof of direct service connection, and the claimant has a right to prove causation. See Combee v. Brown, 34 F.3d 1039 (1994). Thus, as there is no evidence that the Veteran has an asbestos-related disability or that he was exposed to herbicides in service, the Board has also considered whether the Veteran's claimed respiratory disorder is otherwise related to service. As noted above, the Veteran was not treated at any time for breathing problems during service, and on separation his lungs and chest were normal. Here, there is evidence of a current disability-the record contains documentation from both private and VA treatment providers reflecting diagnoses of COPD, chronic bronchitis, and pneumonia. However, despite evidence of a current disability, the Veteran's service treatment records do not contain complaints or treatment related to any respiratory disorder, and his entrance and discharge examinations reveal a normal clinical evaluation for the respiratory system. The first post-service diagnosis of any sort of respiratory complication did not occur until May 1996, nearly 30 years since the Veteran's separation from active duty. In sum, there is no competent evidence medically relating the Veteran's current respiratory disorder to military service. Absent competent evidence in the record of a relationship to military service, the Veteran's claim for service connection for a respiratory disability must be denied on a direct basis. There has been no continuity of symptomatology since his period of military service. Consequently, there is no basis for concluding that any current respiratory disability is traceable to the Veteran's periods of military service. The lack of any evidence of a respiratory disability for decades between the period of active duty and the initial findings and documented complaints of a respiratory disability weighs against the claim. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no objective medical evidence to reflect that any such disability is due to service. Based on the above analysis, the Board finds that service connection for a respiratory disorder is not warranted. The Board has considered the Veteran's contention that a relationship exists between his claimed COPD and service, including to his claimed exposure to herbicides and asbestos. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). As discussed above, even if the Board were to concede the Veteran's claims of exposure to asbestos or to herbicides during his service on the USS Yorktown, the claim of service connection would still fail as the Veteran has not submitted medical evidence of a disability manifested by asbestos exposure, to include asbestosis. Similarly, the respiratory disabilities with which the Veteran has been diagnosed are not recognized as presumptively associated with herbicide exposure. The Board is cognizant of the fact that the Veteran feels he has a respiratory disability due to exposure to asbestos or herbicides during service; however, he lacks the medical expertise necessary to diagnose a specific medical disability or conclude any condition is etiologically related to asbestos or herbicide exposure. Even medical experts require pulmonary function testing, x-rays and other diagnostic measures to correctly identify the nature of pulmonary disease. The Board is not necessarily concluding that he was not exposed to asbestos during service, but without medical evidence of a disability due to that exposure, the claim must be denied. Exposure to asbestos, in and of itself, is not considered a disability for VA purposes. The preponderance of the evidence does not establish that any COPD or other respiratory disorder is due to exposure to asbestos or herbicides in service, and there is otherwise no probative evidence of a nexus between any current respiratory disability and his active service. Thus, service connection for a respiratory disorder is not warranted, and the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges that the Veteran has also contended that his claimed respiratory disorder is secondary to a heart disorder or to diabetes mellitus. However, the RO has found in a March 2010 rating decision that entitlement to service connection for a heart disorder and for diabetes mellitus was not warranted. Thus, as a matter of law, the Veteran's claim for service connection for a respiratory disorder as secondary to a heart disorder or to diabetes mellitus must fail. Insofar as the conditions to which the Veteran claims this disability is secondary have not been service connected, the claim for secondary service connection must also fail. See 38 C.F.R. § 3.310. For this reason, the Veteran's claim for secondary service connection must be denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease, including as due to exposure to asbestos and to herbicides, is denied. REMAND The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim for service connection for an acquired psychiatric disorder. At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Regarding the Veteran's claimed in-service stressor, the Board notes that the Veteran has contended to a Vet Center counselor at an April 2009 treatment visit that he was sexually molested by a sergeant during his first period of service. The Veteran stated that the experience left him "very frightened" because he was "just a kid" at the time it occurred. Credible supporting evidence that a claimed in-service stressor occurred is important in light of the specific elements necessary to substantiate a service connection claim for PTSD compared to other psychiatric disorders. See 38 C.F.R. § 3.304(f) (2013). The Board recognizes that the present case, which in part involves allegations of a personal assault (the alleged sexual assault of the Veteran by a sergeant during basic training), falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events about which the Veteran complains. See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999). As noted under Part IV, Subpart ii, Chapter 1, Section D, Paragraph 17 of the VA Adjudication Procedures Manual Rewrite (M21-1 MR), personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking. Id. Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault. See YR v. West, 11 Vet. App. 393, 399 (1998). The Manual also notes that because personal assault can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence and requiring that alternative evidence be sought. Likewise, under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The Board notes that § 3.304(f)(5) also stipulates that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In this case, a review of the record reflects that the Veteran has not been apprised of 38 C.F.R. § 3.304(f)(5) or that evidence from other sources could help corroborate the claimed in-service personal assault stressor, nor has he been provided a list of those alternative sources from which he could submit evidence to help substantiate the stressor incident. As such, the agency of original jurisdiction (AOJ) must further develop the Veteran's claim in accordance with those special alternative evidentiary development procedures associated with personal assault claims as noted in 38 C.F.R. § 3.304(f)(5) and the M21-1 MR, Part IV, Subpart ii, Chapter 1, Section D, Paragraph 17. Thus, the Board finds action is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim; those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date of the award). After providing the required notice, the AOJ must again attempt to obtain any pertinent outstanding evidence for which the Veteran provides sufficient information and, if necessary, authorization. See 38 U.S.C.A. § 5103A(a), (g); 38 C.F.R. § 3.159. See also Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Credible supporting evidence that a claimed in-service stressor occurred is important in light of the specific elements necessary to substantiate a service connection claim for PTSD compared to other psychiatric disorders. See 38 C.F.R. § 3.304(f) (2013). Regarding the Veteran's claimed in-service stressors, the Board notes, as stated above, that the Veteran reported to a Vet Center counselor that he was sexually molested by a superior during his first period of service. The Veteran has also contended in written statements that his claimed acquired psychiatric disorder stems from other, unspecified in-service traumatic experiences. The Veteran has further submitted a letter from his wife, who stated that the Veteran experiences regular nightmares that she believes are linked to the Veteran's claimed service in Vietnam. The evidence reflects that the Veteran has been diagnosed with depression and psychosis. In that connection, the Board notes that the Veteran was first treated in February 1978 for what was diagnosed as "severe anxiety and depression" following a suicide attempt. He was treated on multiple occasions in 1990 for alcohol dependence and was diagnosed in October 2002 with anxiety and depression. At a November 2007 private treatment visit, the Veteran was diagnosed with depression that the private physician stated was due to "alcohol use and service related." No explanation for the opinion was provided. Further, as noted above, the Veteran sought Vet Center treatment in 2009; at that time, he reported the in-service personal assault. Records from his Vet Center treatment reflect diagnoses of depression and psychosis. The Board further notes that the Veteran has not been provided a VA examination in conjunction with his claim for service connection for an acquired psychiatric disorder. In light of this, and because the record does not reflect that the Veteran has been diagnosed with PTSD specifically by a VA or VA-contracted psychiatrist or psychologist who confirms that the identified stressors are adequate to support a diagnosis of PTSD, the Board finds it necessary to secure a VA examination to ascertain whether the Veteran in fact has PTSD that is a result of an identified in-service stressor or otherwise suffers from an acquired psychiatric disorder related to service. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010); see also 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). Thus, on remand, the Veteran must be afforded a VA examination in order to obtain a current diagnosis based on both an examination and a thorough review of his claims file. Specifically, the Veteran must be afforded a psychiatric evaluation by a VA or VA-contracted psychiatrist or psychologist, to include particular attention to the diagnoses made as a result of VAMC treatment. In the report, the examiner must address the relationship between any diagnosed PTSD and the Veteran's in-service stressors and must specifically discuss whether the identified stressors are adequate to support a diagnosis of PTSD and whether his symptoms are related to the identified stressors. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843-44; VBA Training Letter 211B (10-05), July 16, 2010. Further, under Clemons, supra, in order to properly assess the Veteran's claim for an acquired psychiatric disorder, to include PTSD, on remand the AOJ must schedule him for a VA psychiatric examination in order to determine the current diagnosis or diagnoses of his claimed acquired psychiatric disorder(s). In addition to conducting a psychiatric examination, the designated examiner must provide a medical nexus opinion with respect to any identified acquired psychiatric disorder. The opinion must address whether the Veteran has an acquired psychiatric disorder that is attributable to his active military service. Such an opinion is also important in view of the evidence contained in the Veteran's post-service treatment records, which suggest that he has a current diagnosis of depression and psychosis. As to the issue of entitlement to a TDIU, the claim being remanded herein is inextricably intertwined with the Veteran's claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The service connection issue must be addressed by the AOJ before the Board renders a decision on the TDIU claim. In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran and his representative must be sent a letter requesting that the Veteran provide sufficient information, and if necessary authorization, to enable any additional pertinent evidence not currently of record to be obtained. In the letter, the AOJ must provide the Veteran and his representative with the language of the new PTSD regulation, 75 Fed. Reg. 39,852. The Veteran should also be invited to submit any pertinent evidence in his possession. The AOJ must explain the type of evidence that is the Veteran's ultimate responsibility to submit. In addition, the AOJ must explain specifically what evidence and information is required to substantiate a claim of service connection for PTSD based on a claim of in-service personal assault. See 38 C.F.R. § 3.159 (2013). The Veteran must be specifically told of the information or evidence he should submit and of the information or evidence that VA will obtain with respect to his claim of service connection for PTSD. The Veteran must be specifically notified that an alleged personal assault in service may be corroborated by evidence from sources other than his service records, as defined in 38 C.F.R. § 3.304(f)(5). (All specific examples of alternative sources of evidence listed in this regulation must be included in the notification letter.) 2. Upon completion of the above, the RO should schedule a comprehensive VA psychiatric examination to determine the diagnoses of all psychiatric disorders that are present. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. Psychological testing should be conducted with a view toward determining whether the Veteran in fact meets the criteria for a diagnosis of PTSD. The examiner should determine the true diagnoses of any currently manifested psychiatric disorder(s). The diagnosis(es) must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required. If a diagnosis of PTSD is deemed appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the record was sufficient to produce PTSD; and (2) whether it is at least as likely as not that there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record and found sufficient to produce PTSD by the examiner. The examiner must comment on the approximate date of onset and etiology of any diagnosed psychiatric disorder as shown by the evidence of record, and in so doing, the examiner should attempt to reconcile the multiple psychiatric diagnoses and/or assessments of record based on his/her review of all of the evidence of record, particularly with respect to prior diagnoses of PTSD. Further, in line with the M21-1 provisions, the examiner is requested to provide detailed medical analysis and interpretation of the diagnoses found present on examination in light of all the evidence of record for the purpose of addressing whether any behavioral changes that occurred at or close in time to the alleged stressor incidents could possibly indicate the occurrence of one or more of the alleged in-service stressors. If psychiatric disability other than PTSD is identified, the examiner must provide an opinion as to whether it is at least as likely as not that it is related to his active military service. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. If the examiner finds that any acquired psychiatric disorder is related to service, he/she must note the Veteran's educational and work history and opine as to whether, without regard to age or impact of any non-service-connected disability, the service-connected disability or disabilities render(s) him unable to secure or follow a substantially gainful occupation. All opinions must be set forth in detail and explained in the context of the record. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs