Citation Nr: 1416031 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 08-02 181 ) 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, to include depression, a panic disorder, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a lung disorder, to include as secondary to asbestos exposure. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from April 1975 to April 1979. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2011, the Veteran testified at a hearing before the undersigned. In July 2011, the Board remanded the claims for additional development. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A current lung disorder is not shown by the record. CONCLUSION OF LAW A lung disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & West Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran's Claims Assistance Act (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by a November 2005 letter. The letter notified the Veteran of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of that evidence he should provide, and what part VA will attempt to obtain. Notice of how disability ratings and effective dates are determined was provided in a May 2006 letter, which accompanied the initial rating decision. The claim was subsequently readjudicated in a July 2012 Supplemental Statement of the Case. Accordingly, the duty to notify has been satisfied. Regarding the duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue on appeal has been obtained in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment and personnel records have been associated with the claims file and all identified and available post-service treatment records have been obtained. The Veteran has not been medically evaluated in conjunction with his claimed lung disorder. Under VA regulations, the Secretary must provide a VA 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 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) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, as will be explained below, there is no competent and credible evidence indicating that he has a current lung disorder related to an in-service event, injury, or disease. VA outpatient treatment records show no complaints, treatment, or diagnosis of a lung disorder and respiratory findings have consistently been negative. During the Board hearing, the Veteran was provided with a 60-day extension to submit evidence of a current lung disorder, but he failed to do so. See Board Hearing Transcript (Tr.) at 5-6. As such, there is no basis for entitlement to service connection and a VA examination is not warranted. As the AOJ requested that the Veteran identify all medical care providers who have treated him for any lung disorder (see July 2011 letter), the Board finds that the AOJ has substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999). The Veteran testified during a Board hearing in February 2011, at which time the undersigned explained the issues on appeal, asked questions focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required. These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). The Veteran has not contended, and the evidence does not otherwise show that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Analysis Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). Likewise, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has noted that in order for a veteran to qualify for entitlement to compensation under the relevant statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Hence, the mere fact of a veteran reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he or she has met the current disability due to disease or injury requirement of a service connection claim. Rather, an underlying disease or injury is required. In this case, the Veteran asserts that he has a lung disorder related to asbestos exposure in service. However, after a careful consideration of the lay and medical evidence, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection because there is no evidence of a current disability, the first element required for service connection. The Veteran's service personnel records indicate that he served in the United States Army with the 4th Calvary, 1st Infantry Division. His primary specialty was an armored reconnaissance vehicle crewman. His secondary specialty was a track vehicle mechanic. There is no indication from his records that he was exposed to asbestos and he has not explained the circumstances under which he was exposed. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to a lung disorder. At his February 1979 discharge examination, his lungs and chest were clinically normal and his chest X-ray was negative. On his Report of Medical History, he denied having or having had shortness of breath. Post-service, a July 1999 private treatment record indicates that the Veteran complained of shortness of breath, dizziness, and "feeling funny." It was noted that some recent chest X-rays were okay. He was referred to a cardiologist. An October 1999 record reflects that he described feeling dizzy, short of breath, and panicky. It was noted that his cardiac work-up was unremarkable and that his symptoms sounded like panic attacks. He was prescribed Prozac and Xanax. Hence, his symptoms involving shortness of breath were attributed to a panic disorder rather than a lung disorder. The question of entitlement to service connection for a panic disorder is separately addressed in the remand section below. VA outpatient treatment records do not reflect any complaints, treatment, or diagnoses related to a lung disorder. A May 2006 record indicates that there was no shortness of breath or cough. His chest was clear to auscultation in June 2010. In July 2010, it was noted that there was no shortness of breath, cough, or dyspnea on exertion. During the Board hearing, the Veteran acknowledged that he did not have a diagnosis related to asbestos and requested that the record be held open for 60 days to allow him an opportunity to submit additional evidence. See Board Hearing Tr. at 5-6. The Board has considered the Veteran's statements and notes that he is competent to testify as to his symptoms, such as shortness of breath. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In this case, however, the Board points out that the Veteran's assertions that he has a chronic lung disorder are not supported by the medical evidence. In summary, a lung disorder is not shown by the evidence of record. Thus, service connection cannot be established. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for a lung disorder is denied. (CONTINUED ON NEXT PAGE) REMAND The Board's review of the claims file reveals that further AOJ action is warranted on the claim of entitlement to service connection for an acquired psychiatric disorder. The Veteran asserts that he has PTSD due to traumatic events that occurred during service. He testified that he witnessed a soldier get stabbed in the heart during an altercation in the mess hall while stationed in Schwabach, Germany. See Board Hearing Tr. at 8. He said there was a lot of racial tension and that a fight broke out between two other soldiers in the room next door to his. Id. at 10. The Veteran's service treatment records indicate that the Veteran received a temporary profile in Schwabach in December 1975. His physical profile (PUHLES) noted "1s" in every category (the highest evaluation) except psychiatric ("S"), in which he was given a "2". There was no explanation given for the "2" evaluation. Because mental health records are typically not included in service treatment records and the Veteran may have received counseling in association with this profile, an attempt should be made to obtain any existing records. VA outpatient treatment records reflect that the Veteran has been diagnosed with PTSD, a depressive disorder, and a panic disorder. Establishing entitlement to service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2013). The Veteran does not assert that he was involved in combat or that his stressors are related to hostile military or terrorist activity. Therefore, corroboration of his reported stressors is required. In July 2009, the AOJ determined that the Veteran provided insufficient information regarding his stressors and that referral to the Joint Services Records Research Center (JSRRC) to research his stressors was not warranted. Since then, however, the Veteran submitted a February 2011 statement from an individual (D.J.) who stated that he was stationed with the Veteran in Schwabach, Germany and also witnessed the stabbing of a soldier in the mess hall. The Veteran was in Germany from September 1975 to September 1979. He also identified the last names of the individuals involved in the stabbing. Considering that the soldier reportedly died from his injuries, the event should be researchable and additional efforts to verify the death of this individual should be taken. The AOJ should also determine whether the buddy statement provided by D.J. is consistent with the time, place, and circumstances of his service and the Veteran's service. See VA Adjudication Manual, M21-1MR, Part IV, subpart ii, Chapter 1, Section D(13)(l). Any outstanding VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from the VA Mobile Outpatient Clinic from June 2011 to the present. If any of the records requested are unavailable, this should be memorialized in the claims file and the AOJ should notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e) . 2. Obtain any existing in-service mental health treatment records, to include any records associated with the Veteran's December 2, 1975 physical profile. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). (CONTINUED ON NEXT PAGE) 3. Determine whether the buddy statement provided by D.J. in February 2011 is consistent with the time, place, and circumstances of his service and the Veteran's service. See VA Adjudication Manual, M21-1MR, Part IV, subpart ii, Chapter 1, Section D(13)(l). 4. The AOJ must thoroughly review the Veteran's claims file and prepare a summary of his reported stressors. The summary must include, but is not limited to, the altercation that allegedly occurred in Schwabach, Germany, in which "M" stabbed and killed "W." See Board Hearing Tr. at 8 (full last names reported by the Veteran). The AOJ must send this summary and the information of record regarding the Veteran's service, including copies any records relevant to his PTSD claim, to the appropriate agency, to include the JSRRC, National Archives and Records Administration (NARA), and National Personnel Records Center (NPRC), and ask that the agency provide any available information that might corroborate the Veteran's alleged in-service stressors. Any additional actions necessary for independent verification of the alleged stressors, including follow-up action requested by the contacted entity, should be accomplished. 5. If, and only if, the Veteran's reported stressor(s) are verified, schedule him for a VA psychiatric examination with an appropriate clinician to determine the nature and etiology of any claimed acquired psychiatric disorder, to include PTSD. (CONTINUED ON NEXT PAGE) A copy of this remand, any stressor verification information, and all relevant medical records should be made available to the examiner, to include any pertinent records in the Veteran's electronic folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. The examiner must review the pertinent evidence and undertake any indicated studies. The examiner must then provide a diagnosis for each psychiatric disability found, made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2013). For each diagnosis, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disability began during service, was chronically worsened during service, is related to any incident of service, or was manifest as a psychosis within one year after discharge from service. If the examiner diagnoses the Veteran with PTSD, he or she must specify the stressor or stressors underlying the diagnosis. In doing so, the examiner should acknowledge the Veteran's lay statements regarding the claimed stressor(s). The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. 6. After any additional development deemed necessary is accomplished, the AOJ must readjudicate the claim remaining on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law, as well as regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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 remanded by the Board 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). ______________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs