Citation Nr: 1452883 Decision Date: 12/02/14 Archive Date: 12/10/14 DOCKET NO. 12-06 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a respiratory disorder, to include as due to exposure to asbestos. 3. Entitlement to service connection for headaches, including as secondary to tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to April 1967. This appeal to the Board of Veterans' Appeals (Board) is from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. As support for his claims, the Veteran testified at a Travel Board hearing in September 2012 before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. During the hearing, the Veteran provided testimony concerning the issues of entitlement to service connection for prostate cancer and bilateral upper and lower extremity neuropathy. However, these issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The competent, probative evidence of record fails to link a diagnosis of PTSD to service. 2. The competent, probative evidence of record fails to relate any other currently diagnosed psychiatric disorder to service. 3. The competent, probative evidence of record fails to relate any currently diagnosed respiratory disorders to service. 4. The competent, probative evidence of record fails to relate any currently diagnosed headache disorder to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2014). 3. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). In a November 2008 letter, the RO notified the Veteran of the information and evidence needed to substantiate his claims of service connection together with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Relevant to the duty to assist, the Board notes that the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained. The Veteran was also provided VA examinations concerning these claims in August 2011. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2014) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.10(c)(2) nor identified any prejudice in the conduct of the Board hearing. As such, the Board finds that it can adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist, and it may proceed to an adjudication of the claim. The Board has reviewed all the evidence in the appellant's claims file and electronic file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. Service Connection Claims Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). 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. See 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). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether the weight of the evidence supports the claim, or the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim, and the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other issue, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2014). Psychiatric Disorder The Veteran asserts he suffers from depression and PTSD as a result of his military service. In his statements and hearing testimony, the Veteran asserted that his psychiatric symptoms began in service and were caused by his stressful experiences during service, including witnessing the deaths of 42 pilots due to a fire that occurred while stationed on the USS Oriskany. As a threshold matter in all service connection claims, there must be evidence of a current disability. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for PTSD, in particular, requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran presented for psychiatric treatment at a private facility in March 2007. The Veteran's physician provided a diagnosis of PTSD and prescribed Zoloft for the reduction of depression and anxiety. Associated records show this to have been linked to a recent explosion at the Veteran's place of employment, a refinery. VA treatment records dated through 2012, only note a diagnosis of depression, and neither these, or the private treatment records associated with the claims file link any specific psychiatric disorder to the Veteran's military experiences. In August 2011, the Veteran was scheduled for a VA psychiatric examination. During this VA psychiatric examination, the Veteran asserted that his psychiatric disorder was due to exposure to stressors in service, and he has suffered from psychiatric disorders since service. The examiner provided a diagnosis of depression only. Notably, the examiner did not provide a diagnosis for PTSD. In fact, the VA examiner specifically determined that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under the DSM-IV. Further, the examiner opined that the diagnosed depression was not caused by the Veteran's military service. On review of the record, the Board finds that the preponderance of the evidence is against a finding that any acquired psychiatric disorder was incurred in service. As an initial matter, whether PTSD is an appropriate diagnosis is a legitimate question given it appears only in one source. Nevertheless, that diagnosis was not medically linked to service, and the Veteran does not have the medical expertise to do so. Therefore, a basis upon which to establish service connection for PTSD has not been presented. In regards to the remaining diagnosed disorder of depression, the first element of service connection - medical evidence of a claimed disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). There is no evidence that the Veteran was treated for depression in service. Moreover, following service there is no clinical evidence of any treatment or other psychiatric complaints until March 2007, at the earliest. Even when the Veteran underwent a psychiatric evaluation by VA in August 2011, there has been no finding that the Veteran's psychiatric conditions resulted from any injury or disease occurring in service. On review of this and the remainder of the medical records on file, the preponderance of the competent evidence is against a finding that an acquired psychiatric disorder is related to service. The only VA examination medical opinion on this matter is ultimately against a finding supportive of the Veteran's claim. In fact, the August 2011 VA examiner concluded that this condition was not caused by the Veteran's military service. The issue of the etiology of the Veteran's diagnosed depression is beyond the competency of the Veteran as a lay person because it requires medical knowledge and training. In this case, the medical evidence as discussed above does not link any diagnosed psychiatric disorder to service. The Board does not question the Veteran's sincerity that he believes he has such a psychiatric disorder that resulted from service. As a lay person, however, he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions as such matters require medical expertise. He is not professionally qualified to offer a diagnosis or suggest a possible medical etiology. In light of the foregoing, because the preponderance of the evidence is against the claim, service connection must be denied for an acquired psychiatric disorder. Respiratory Disorder The Veteran contends that he was exposed to asbestos while stationed on the USS Oriskany and, that as a result of that exposure, he suffers from interstitial fibrotic disease. For the reasons that follow, his claim is denied. As an initial matter, there is no statute specifically addressing service connection for asbestos-related diseases, nor has the VA promulgated any specific regulations or presumptions for these types of cases. However, in 1988 VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See VA Department of Veterans Benefits (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 the VA Adjudication Procedure Manual, M21-1 Manual Rewrite, Part IV, subpart ii, 2.C.9 (Service Connection for Disabilities Resulting from Exposure to Asbestos) (hereinafter "M21-1MR, IV.2.ii.C.9."). In addition, an opinion by the VA General Counsel discussed the provisions of M21-1 regarding asbestos claims and, in part, also concluded that medical nexus evidence was needed to establish a claim based on in-service asbestos exposure; see VAOPGCPREC 4-00. Based on the foregoing, the VA must analyze the veteran's claim for service connection for a disability that is related to asbestos exposure under the established administrative protocols. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Common materials that may contain asbestos include steam pipes for hearing units and boilers, ceiling tiles, roofing shingles, wallboard, fireproofing materials and thermal insulation. M21-1MR, IV.ii.2.C.9.a. Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial fibrosis, or asbestosis); tumors; pleural effusions and fibrosis; pleural plaques; and, cancers of the lung, bronchus, larynx, pharynx and urogenital system (except the prostate). M21-1MR, IV.ii.2.C.9.b. Specific effects of exposure to asbestos include lung cancer, gastrointestinal cancer, urogenital cancer and mesothelioma. Disease-causing exposure to asbestos may be brief and/or indirect. Current smokers who have been exposed to asbestos face greater risk of developing bronchial cancer, but mesotheliomas are not associated with cigarette smoking. M21-1MR, IV.ii.2.C.9.c. The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1MR, IV.ii.2.C.9.d. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. M21-1MR, IV.ii.2.C.9.e. Some of the major occupations involving exposure to asbestos include mining; milling; working in shipyards; insulation work; demolition of old buildings; carpentry and construction; manufacture and servicing of friction products such as clutch facings and brake linings; and, manufacture and installation of such products as roofing and flooring materials, asbestos and cement sheet and pipe products and military equipment. Exposure to any simple kind of asbestos is unusual except in mines and mills where the raw materials are produced. M21-1MR, IV.ii.2.C.9.f. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. M21-1MR, IV.ii.2.C.9.g. When deciding a claim for service connection for a disability resulting from an exposure to asbestos, VA must determine whether service records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1MR, IV.ii.2.C.9.h. The Court has found that provisions in former paragraph 7.68 (predecessor to M21-1MR, IV.ii.2.C.9.f-g cited above) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Dyment v. West, 13 Vet. App. 141, 145 (1999); aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00 (April 13, 2000). First, the Board acknowledges the Veteran currently suffers from a pulmonary disorder diagnosed as asbestosis and interstitial fibrotic disease. His private treatment records, dating from as early as February 1999, note a diagnosis of asbestosis. A subsequent August 2011 VA examination also notes the presence of interstitial fibrotic disease. Next, the Board finds that the Veteran's service treatment records are completely silent regarding any complaints, treatment, or diagnoses of respiratory or pulmonary, including his April 1967 separation examination. Thus, there is no evidence of an in-service incurrence of a pulmonary disorder, which weighs against a conclusion that current disability was incurred in service. The Veteran's asserts, however, that his disability is due to asbestos exposure that occurred while working on the USS Oriskany. Exposure to asbestos at that time is a possibility. At the same time, the records show the Veteran has been an industrial electrician since 1967, working in powerhouses, chemical plants, and refineries. The Veteran estimated he was exposed almost daily to insulators and other trades using asbestos insulation, blanket pads, aprons, power, and blocks. Consequently, an August 2001 private treatment record reflects the conclusion the Veteran has asbestosis on the basis of his post service occupational exposure. There is no medical opinion contradicting this conclusion, and the Veteran is not shown to have the medical expertise on the subject that would be necessary to consider his opinion as out weighting the evidentiary value of the physician's. Thus, the weight of the evidence is against the conclusion that the Veteran's respiratory disability is related to in-service asbestos exposure. Given the absence of in-service disease or injury shown to result in current disability, together with the medical evidence the Veteran's asbestosis is related to post service asbestos exposure, the Board concludes that the criteria for service connection have not been met with respect to the Veteran's claim for service connection for a respiratory disorder. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Headaches The Veteran contends he has a headache disability that is causally or etiologically related to service. In the alternative, the Veteran asserts that his headaches are due to or aggravated by his service-connected tinnitus. The Veteran's service treatment records are completely silent regarding any complaints, treatment, or diagnoses of head injuries or traumas. There is also no indication of headaches suffered during service. The Veteran's VA treatment records show minimal complaints of and treatment for tension headaches. The Veteran was afforded a VA examination in August 2011, where he reported his head ache complaints preceded his tinnitus and that his headaches began in service. The examiner reviewed the Veteran's history and claims file. He performed a thorough physical and neurological examination, and diagnosed mixed tension and vascular headaches. The examiner opined that the Veteran's disability is less likely as not related to tinnitus. While the Veteran is competent to describe his subjective experience of headaches, his contention that he has had a chronic condition, dating back to service is not credible. This is because he has not provided a consistent history, claiming first his headaches were secondary to his tinnitus on his application for benefits, yet reporting to the VA examiner in 2011 that the headaches began prior to tinnitus. Since the Veteran's contentions were the only evidence of a link with service, and as the contention is not probative, the weight of the evidence is against a conclusion that a headache disability was incurred in service. In addition, it is noted that the Veteran is not shown to have the medical expertise to offer any probative opinion on the medical cause of his headache complaints, and apart from his conclusory, generalized statements there is no indication that a tinnitus disability can produce a head ache disability. Thus, the record lacks probative evidence linking a headache disability to service or to his tinnitus. As the preponderance of the evidence is against the claim that the Veteran's current headaches are related to service, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for an acquired psychiatric disorder is denied. Service connection for a respiratory disorder is denied. Service connection for headaches is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals overcome the VA treatment records dated through 2012 also note the Veteran's complaints of and treatment for symptoms associated with his diagnoses of asbestosis and interstitial fibrotic disease. However, there are no etiological opinions noted in the VA treatment records that relate these diagnoses to his military service. The Veteran was examined by VA in August 2011. The examiner acknowledged the Veteran's history as an industrial electrician and previous history of smoking. The examiner failed to provide a comment as to the etiology of the Veteran's diagnosed disorders. Here, the only potential link between current disability and service would be the Veteran's potential periodic exposure to asbestos over a 2 year period, versus the decades long history of tobacco use and "almost daily" asbestos exposure post service as an electrician until 2009. In fact, the only opinion in the claims file is the August 2001 record from the Veteran's private physician that does not once mention prior military service and any potential exposure to asbestos. Thus, the Board finds that the greater weight of the evidence is against the conclusion the Veteran's respiratory disorder was incurred in service. The Board acknowledges the Veteran is competent to report difficulty breathing and other respiratory and pulmonary symptoms. However, his statements regarding whether his currently diagnosed pulmonary disorders are the result of his military service, including as due to asbestos exposure, ultimately involves a medical, not lay, determination, thus rendering his opinion less probative than the opinion provided by the Veteran's private physician in August 2001. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). There is simply no competent evidence of a nexus between the Veterans' currently diagnosed pulmonary disorders and his active service. The Veteran's private and VA treatment providers have not found that there is a causal link between his disorder and his active service. To the extent that the Veteran contends that such a link exists, the Board again finds that he is not competent to do so. Department of Veterans Affairs