Citation Nr: 1448809 Decision Date: 11/04/14 Archive Date: 11/10/14 DOCKET NO. 10-47 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety. 2. Entitlement to service connection for a pulmonary disorder due to asbestos exposure. ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board notes that the issue of entitlement to special monthly pension was granted by the RO in a November 2011 rating decision, and is thus not on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The most probative evidence fails to link the Veteran's acquired psychiatric disorder, including PTSD, depression, and anxiety, to service. 2. The most probative evidence fails to link the Veteran's claimed pulmonary disorder to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, including PTSD, depression, and anxiety, have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2014). 2. The criteria for establishing entitlement to service connection for a pulmonary disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied prior to the initial February 2010 RO decision by way of a letter sent to the Veteran in October 2009 that informed him of his duty and the VA's duty for obtaining evidence. The RO also provided adequate notice of how disability ratings and effective dates are assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's available service treatment and personnel records, VA treatment records, and lay evidence have been obtained. The Board finds that an examination is not required because the evidence does not establish that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, or 3.317 manifesting during an applicable presumptive period. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the Veteran has asserted that multiple events during his service led to his acquired psychiatric disorders, as discussed below, the Board finds that the most probative evidence of record shows that his acquired psychiatric disorders are not attributable to any event(s) in service. Further, no examination for a pulmonary disorder is warranted because the most probative evidence shows that he has no current pulmonary disability or symptoms. The Veteran has not indicated there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Analysis: Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Analysis: Acquired Psychiatric Disorder, to include PTSD, Depression, and Anxiety As discussed below, the Board has considered all claimed and diagnosed acquired psychiatric disorders, as required by Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends in an October 2009 letter that: I was sent to Training Camp in Maryland where I had my first ever encounter with racism and discrimination. Consequently [I developed] an inferiority complex that I have never been able to overcome and has kept me from developing and having a normal life like other human beings. I was then sent to Norfolk, Virginia for Sea Duty aboard the U.S.S. New Jersey BB-62 where the racism and discrimination just got wors[e]....I had no friends and kept to myself.... After I was discharged from the Navy in 1958 I went to see a Psychiatrist to deal with my inferiority complex, after [eight] months of treatment I didn't see any improvement so I discontinued treatment. My entire family has suffered a great deal from my inability to socialize with other people. To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). However, in this case, the most probative evidence of record shows that the Veteran was not in combat. As such, this presumption is not applicable. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal-assault cases of PTSD). The Board acknowledges that the Veteran has a current diagnosis of depression and anxiety from VA clinicians, including in July 2009, August 2009, October 2009, and December 2009. A June 2011 VA examiner for aid and attendance diagnosed the Veteran with Generalized Anxiety Disorder. However, the most probative evidence of record shows that his acquired psychiatric disorders are not attributable to any event(s) in service, for three reasons. First, the Veteran's service treatment records contain no complaint, diagnosis, or treatment of any psychiatric disorder. Further, in the Veteran's November 1957 Report of Medical Examination for release from active duty, a clinician found that the Veteran was psychiatrically normal. Second, the Veteran's first diagnosis of an acquired psychiatric disorder was in July 2009-more than fifty years after service. Although the Veteran reported in October 2009 that he sought treatment in 1958 for "my inferiority complex," he does not assert-and the record does not show-that any clinician diagnosed that or any other psychiatric disorder at that time. Third, in his statements to his treating VA clinicians, the Veteran has never attributed his psychiatric symptoms to service, but rather has attributed them to family concerns or to no reason. Specifically, in October 2009, the Veteran reported that he has felt sad since about a year ago, his wife is depressed, his son has mental retardation, and his father-who was a best friend-is deceased. In August 2009, the Veteran reported that he could not identify any specific reason for his depression. The Board finds that the Veteran's statements to his treating clinicians regarding the cause of his psychiatric symptoms are more credible than his contrary statements to VA adjudicators. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Finally, with respect to PTSD, the Board finds that the Veteran has no diagnosis thereof. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Here, the Board finds that the Veteran is not competent to diagnose PTSD because it is a complex disorder requiring psychiatric testing. Although the Veteran is competent to describe his own feelings, assigning a diagnosis of PTSD is beyond his competence. In summary, an in-service clinician found that the Veteran was psychiatrically normal upon release from active duty in November 1957; he was first diagnosed with a psychiatric disorder more than fifty years later; and during his VA psychiatric treatment, he related his symptoms to family problems or to no reason at all, but never to his service. Therefore, the Board finds that service connection is not warranted for an acquired psychiatric disorder, including PTSD, depression, and anxiety. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Analysis: Pulmonary Disorder The Veteran contends in his October 2009 statement that he came into contact with asbestos while living and working on decommissioned ships. The Board finds that the Veteran's service is consistent with asbestos exposure. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988 VA issued a circular on asbestos-related diseases which provided 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 have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a Manual rewrite (MR) in 2005. See 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." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The Manual provisions acknowledge that inhalation of asbestos fibers and/or particles 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). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The Manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. Here, the Board finds that the Veteran has no current pulmonary disorder or other disorder that is attributable to asbestos exposure in service. In the Veteran's November 1957 Report of Medical Examination for release from active duty, a clinician found that the Veteran's lungs and chest were normal, and no asbestos-related disorder was diagnosed. Further, VA clinicians found that the Veteran was negative for any respiratory disorders in July 2009, August 2009, October 2009, and December 2009. Moreover, the Veteran is not competent to diagnose a pulmonary or asbestos-related disorder, because such a diagnosis requires objective observation and complex evaluation, such as was performed by VA clinicians from July 2009 through December 2009. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Where, as here, there is no present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997). Therefore, the Board finds that service connection is not warranted for a pulmonary disorder. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for an acquired psychiatric disorder, including PTSD, depression, and anxiety, is denied. Service connection for a pulmonary disorder due to asbestos exposure is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs