Citation Nr: 1336858 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 13-12 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis. 2. Entitlement to service connection for degenerative arthritis. 3. Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease. 4. Entitlement to service connection for a heart disorder, to include angina and coronary artery bypass graft. 5. Entitlement to service connection for stroke with syncope. 6. Entitlement to service connection for a seizure disorder. 7. Entitlement to service connection for an acquired psychiatric disorder, to include claustrophobia, depression, anxiety and posttraumatic stress disorder. REPRESENTATION Appellant represented by: Mary Anne Royle, Attorney at Law ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In his September 2012 notice of disagreement, the Veteran also disagreed with a denial of entitlement to service connection for diabetes mellitus and the assigned zero percent initial rating for service-connected bilateral hearing loss. After the statement of the case was issued in April 2013, the Veteran limited his appeal in the May 2013 substantive appeal to the seven issues as set forth on the title page. An appeal was not perfected for the diabetes mellitus and bilateral hearing loss issues, and the substantive appeal was signed by the Veteran's attorney representative. Thus, those two issues are not on appeal. See 38 C.F.R. §§ 20.200, 20.202 (2013). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Records In a July 2010 application for benefits, the Veteran indicated that he was receiving income from the Social Security Administration (SSA). An April 2012 letter from the Veteran's VA treating social worker reflects that the income is from SSA disability. SSA records are not of record and they may be relevant to the claims on appeal. When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes (Gerald) v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). As such, the Board must remand the case to allow for the RO to attempt to obtain these records. The Veteran may be receiving regular treatment at the VA Medical Center (VAMC) in West Haven, Connecticut, and at the private facility Yale-New Haven Hospital. Treatment records must be requested from these facilities on remand. Claims Alleged Related to Asbestos Exposure Generally, a VA examination is necessary prior to final adjudication of a claim 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 veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In regard to the claims pertaining to a lung disorder, a heart disorder, stroke with syncope, and a seizure disorder, the Veteran contends that service connection is warranted for the claimed disabilities as a result of his exposure to asbestos during his active service in the U.S. Navy. In a March 2013 statement, he indicated that he was regularly exposed to asbestos, as well as lead paint and dust, while he was performing his duties on the ship he was aboard. The Veteran recalled that he had to clean the ship daily, paint parts of the ship often and sand portions of the ship. His service personnel records document that he served aboard the USS Barney. Given the age of the ship, it likely contained asbestos and the Veteran may have been exposed to asbestos and other environmental hazards as a result of his duties. VA and private treatment records show that the Veteran has complained of shortness of breath and the records include diagnoses of chronic obstructive pulmonary disease (COPD) and restrictive lung disease. He has been treated with oxygen therapy. The records also show that the Veteran has been treated for chest pain or angina, and underwent a coronary artery bypass graft in July 2004 after a diagnosis of coronary artery disease. Additionally, the records reflect that the Veteran experienced a stroke in 2003 and subsequently had multiple episodes of syncope and seizures. The Veteran maintains that these current disorders are related to the inservice asbestos exposure. In May 2013, the Veteran's representative submitted a summary of a study indicating that there may be a significant link between asbestos and strokes, as well as asbestos and heart disease, in addition to the possible link between asbestos and certain lung disorders. Because there is at least an indication that the Veteran's current lung, heart, stroke, syncope, and seizure problems may be related to his active military service, the Board finds that a remand is also required in order to afford the Veteran a VA examination. McLendon, 20 Vet. App. at 83; see also Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). The Board notes that a VA medical opinion was obtained in April 2012 in regard to the possible relationship between the Veteran's COPD and asbestos exposure. Although this opinion was obtained, it is not wholly adequate as the evidence shows that the Veteran may have lung disorders other than COPD, such as diagnosed restrictive lung disease. On remand, all current lung disorders must be addressed. Acquired Psychiatric Disorder The Veteran believes that he may have claustrophobia due to his active military service. In a March 2012 statement, he indicated that his duty quarters aboard the USS Barney were several levels below the deck of the ship. The Veteran also maintains that he developed psychiatric problems after being involved in a fight when he was assaulted in his sleep during service. In September 2012, he indicated that he may have posttraumatic stress disorder. Postservice medical records note problems of anxiety and depression, but do not contain a comprehensive psychiatric evaluation. The Board finds that a remand is also necessary to afford the Veteran a VA examination in connection with this claim. McLendon, 20 Vet. App. at 83; see also Littke, 1 Vet. App. at 93. Rheumatoid and Degenerative Arthritis A decision as to the claims of service connection for rheumatoid arthritis and degenerative arthritis is deferred in view of the development pertaining to the multiple record requests. Accordingly, this case is remanded for the following actions: 1. The RO must obtain the Veteran's more recent treatment records (since April 2013) from the West Haven VAMC. 2. The RO must obtain all of the Veteran's records from SSA. All attempts to secure this evidence must be documented in the claims file by the RO. 3. The RO must attempt to procure copies of more recent records (December 2011) from Yale-New Haven Hospital. A release from the Veteran must be obtained as necessary. All attempts to secure this evidence must be documented in the claims file by the RO. 4. If, after making reasonable efforts to obtain these records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 5. Thereafter, the RO must afford the Veteran a VA examination with a physician who has the appropriate expertise to determine whether any identified lung disorder, heart disorder, stroke with syncope, and seizure disorder, is related to exposure to asbestos and other environmental hazards during military service. Multiple examinations must be scheduled if necessary to address different body systems. The Veteran's entire claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. Based on a review of the evidence of record and the examination results, the examiner must state whether any lung disorder, heart disorder, stroke with syncope, and seizure disorder that the Veteran has had during the pendency of the claim is related to his active duty service or any incident therein. Particular consideration must be given to the likelihood that the Veteran was exposed to asbestos and his statements that he was exposed to other environmental hazards such as lead pain and dust during service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 6. The RO must also afford the Veteran a VA examination to determine whether any identified acquired psychiatric disorder is related to military service. The Veteran's entire claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. The examiner must elicit a complete history from the Veteran regarding his psychiatric problems. Based on this history, an examination, and a review of the evidence of record, the examiner must provide an opinion as to the identity of the Veteran's current acquired psychiatric disorders or acquired psychiatric disorders he has had during the pendency of the claim. For any identified acquired psychiatric disorder, based on a review of the evidence of record and the examination results, the examiner must state whether any acquired psychiatric disorder that the Veteran has had during the pendency of the claim is related to his active duty service or any incident therein. Particular consideration must be given to the Veteran's statements that he was located in closed quarters three levels below the deck of his ship and that he was involved a fight after he was assaulted in his sleep during service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 7. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. Finally, after undertaking any other development deemed appropriate, the RO must re-adjudicate the issues on appeal. If a benefit sought is not granted, the RO must furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).