Citation Nr: 1507922 Decision Date: 02/24/15 Archive Date: 02/26/15 DOCKET NO. 12-35 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for lung nodules. 3. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depression and generalized anxiety disorder. 4. Entitlement to service connection for residuals of a cerebrovascular accident. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1966 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2011, June 2011, and August 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The March 2011 rating decision, in pertinent part, denied service connection for sleep apnea and lung nodules. The June 2011 rating decision, in pertinent part, denied service connection for residuals of a cerebrovascular accident. The August 2011 rating decision denied service connection for PTSD. The Veteran also initiated appeals of the issues of service connection for hypertension and entitlement to an initial compensable disability rating for bilateral hearing loss; however, in his December 2012 substantive appeal, he limited his list of issues to sleep apnea, lung nodules, PTSD, and residuals of cerebrovascular accident. Accordingly, the Board's jurisdiction is limited to those issues listed on the first page of this decision. The Veteran also requested a Board videoconference hearing in his December 2012 substantive appeal; however, he withdrew his request in a July 2014 statement. The Board notes that additional evidence, including VA treatment records and lay statements, was received after the statement of the case was issued in October 2012. This evidence did not include a waiver of RO review. However, the VA treatment records are cumulative and redundant of evidence previously considered by the agency of original jurisdiction (AOJ) and are, therefore, not pertinent to the issues of service connection for sleep apnea and long nodules, and no waiver is required. The lay statements are only pertinent to the claim for service connection for the residuals of a cerebrovascular accident, which is being remanded. The Board can proceed with adjudication. 38 C.F.R. § 20.1304. The Board acknowledges the ruling in Clemons v. Shinseki, 23 Vet. App. 1 (2009), which clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, although a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. A September 2010 private psychological evaluation report indicates that the Veteran has been diagnosed with depression and generalized anxiety disorder, and the Board has recharacterized the issue as indicated above. In a September 2013 letter, the Veteran indicated he was seeking a compensable rating for his service-connected bilateral hearing loss and service connection for a number of disabilities, including an issue that was pending before the RO and those on appeal before the Board. The issues of entitlement to a compensable rating for bilateral hearing loss, service connection for headaches, and whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a heart condition have been raised by the record, but have not 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). The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression and generalized anxiety disorder, and residuals of a cerebrovascular accident are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. It is not shown that the Veteran has, or during the pendency of the claim has had, sleep apnea. 2. Lung nodules were not manifested during service; the preponderance of the evidence is against a finding that the Veteran's current lung nodule disability is related to an event, injury, or disease in service, to include as due to exposure to asbestos therein. CONCLUSIONS OF LAW 1. Service connection for sleep apnea is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. Service connection for lung nodules is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, 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, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements have been met. A June 2010 letter notified the Veteran of the information needed to substantiate and complete his claims of service connection for sleep apnea and a lung condition, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. The letter also provided notice as to how VA assigns disability ratings and effective dates. The appeal was most recently readjudicated in an October 2012 statement of the case. Regarding the duty to assist, the Veteran's service treatment records (STRs), and relevant post-service treatment records have been secured. The Veteran has not identified any additional records that could be used to support his claim. A VA examination was performed in connection with his claim of service connection for lung nodules in September 2010. The Board finds the September 2010 examination report and opinion is adequate for adjudication purposes. The examiner obtained a reported history from the Veteran, reviewed the claims file, conducted a thorough examination, and supported his opinion with an adequate rationale. The Veteran was not afforded a VA examination for his sleep apnea claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to the Veteran's claim for entitlement to service connection for sleep apnea, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Board concludes an examination and opinion with respect to the Veteran's claim for entitlement to service connection for sleep apnea is not needed because it is not shown that he has, or during the pendency of the claim has had, sleep apnea that may be related to service. As there is no indication of a current disability related to service, an examination is not warranted. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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 an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. Service connection for sleep apnea In his May 2010 claim, the Veteran indicated he currently had sleep apnea and noted it had developed in 1970. The Veteran's service treatment records show no suggestion of any sleep-related distress or complaints. No sleep disorders were noted on his June 1970 separation examination report. A September 2010 private psychological evaluation report indicates the Veteran reported he had difficulty sleeping and was often restless with recurrent nightmares. A sleep disorder was not diagnosed, and his difficulty sleeping was considered a psychiatric symptom. A July 2010 VA preventive medicine outpatient note indicates the Veteran reported having trouble falling or staying asleep, or sleeping too much a majority of nights. A sleep disorder was not diagnosed. The Board finds that the evidence of record does not support a finding of service connection for sleep apnea. A review of the Veteran's post-service treatment records does not show he was diagnosed with a sleep disorder, including sleep apnea. In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran has not submitted any competent medical evidence showing that she has had sleep apnea at any time during this appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). The Board has considered the Veteran's reports of having sleep apnea. However, as a layperson, he is not competent to establish that he has sleep apnea by his own opinions as diagnosing sleep apnea requires medical testing. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Service connection for lung nodules A September 2010 VA examination report shows the Veteran was diagnosed with pulmonary nodules. A current disability is therefore established. The Veteran's service treatment records show July 1968 and July 1969 X-rays of the chest were negative. At separation in June 1970, X-rays of the chest were again negative. His June 1970 separation examination report indicates his lungs and chest were clinically evaluated as normal. March 1998 and March 2007 private X-ray reports indicate small calcified granulomas, which were likely evidence of old granulomatous disease, were evident in the Veteran's lungs bilaterally. October 2009 and December 2009 private CT scans revealed nodules in the lung bases bilaterally. In his May 2010 claim, the Veteran attributed his lung nodules to asbestos exposure in service. Regarding asbestos-related claims, there is no specific statutory guidance and the Secretary has not promulgated any regulations. Nevertheless, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. The Court has held that VA must analyze an appellant's claim of service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). The Veteran reported he served as a pipeline worker in service, and his DD Form 214 shows his related civilian occupation was "pumping pipeline occupation." Accordingly, the Board does not dispute that the Veteran was exposed to asbestos while performing his military duties; therefore, in-service asbestos exposure is conceded to this extent. The Veteran underwent a VA examination in September 2010. The examiner diagnosed pulmonary nodules and noted no history of pulmonary malignancy. He indicated he reviewed the claims file and noted that the Veteran reported working with pipelines in service. He opined the Veteran's pulmonary nodules were not related to asbestos exposure, noting there was no evidence of pulmonary asbestosis or of a parenchymal entity. The Board finds that the evidence of record does not support a finding of service connection for lung nodules. The medical evidence of record does not relate the Veteran's current lung nodule disability to service, including the conceded exposure to asbestos therein. The September 2010 VA examiner's opinion is fully articulated with clear conclusions based on an accurate factual foundation and supported by sound reasoning. The examiner cited the Veteran's alleged exposure to asbestos, but found the recorded post-service treatment did not show he had an asbestos-related lung disability and found his current lung nodules were not related to his active service. Accordingly, the opinion is highly probative. In the absence of any persuasive and probative evidence that the Veteran's current lung nodule disability is etiologically related to active service, service connection is not warranted and the claim must be denied. The Board has considered the Veteran's claim attributing his lung nodules to asbestos exposure in service, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, to the extent that the Veteran may allege a causal relationship, the Board notes that such statements are beyond his competence. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for long nodules is denied. REMAND The Board finds that the Veteran's claim for an acquired psychiatric disorder, to include PTSD, depression, and generalized anxiety disorder, requires appropriate notice and additional development prior to adjudication by the Board. As noted, a private psychologist diagnosed the Veteran with major depression and generalized anxiety disorder in September 2010, and the Board has expanded the claim. The RO has not adjudicated this claim to incorporate psychiatric diagnoses other than PTSD. The RO should provide adequate notification addressing what is needed for a claim incorporating such diagnoses and readjudicate the expanded claim. Service connection for PTSD requires credible supporting evidence that the claimed in-service stressor(s) occurred. The Veteran has been diagnosed with PTSD based on a number of stressors he reported witnessing while serving aboard the USS Hancock. The Veteran's personnel records show he served aboard the USS Hancock between December 1966 and June 1970. In a June 2011 letter, the RO requested the Veteran to provide more specific details concerning his alleged stressors, including specific dates and the names of those he saw killed. If he was unable to provide a specific date of an incident, he was directed to indicate the location and approximate time, within a 2-month date range, of the incident. The Veteran did not respond to the request for additional information. On remand, the Veteran should be provided another opportunity to provide specific details concerning his alleged stressors. The Veteran should be notified that his alleged stressors cannot be corroborated without such details. The Veteran's claim seeking service connection for the residuals of a cerebrovascular accident that occurred in August 1985 also requires additional development. In his May 2010 claim and a March 2011 statement, the Veteran asserted he was exposed to Agent Orange because he flew from the USS Hancock to Vietnam in 1969 or 1970. His medical treatment records suggests a relationship between the Veteran's stroke and variously diagnosed diseases of the heart, including ischemic heart disease. Certain diseases (including ischemic heart disease) may be service connected on a presumptive basis as due to herbicide (Agent Orange) exposure in service if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam era. As such, if the evidence corroborates that the Veteran set foot in Vietnam during the Vietnam era, a secondary theory of service connection must be considered. As noted, the Veteran asserts he flew from the USS Hancock to Vietnam in 1969 or 1970. In June 2010, the National Personnel Records Center indicated it was unable to determine whether or not the Veteran served in Vietnam. The USS Hancock was noted to be in the official waters of Vietnam during several periods between February 1967 and March 1970. In statements received in February 2014, two separate people reported they served aboard the USS Hancock with the Veteran and remember him flying to Vietnam. R.E.B. asserted he relieved the Veteran on the flight deck when he flew to Vietnam. W.J.H. indicated he was the Veteran's supervisor on the flight deck and that R.E.B. relived him when he flew to Vietnam. The Board finds R.E.B. and W.J.H. are competent to report what they observed while serving with the Veteran aboard the USS Hancock. Furthermore, the Board finds no reason to question their credibility, and their statements are sufficient corroboration of the Veteran's assertion that he stepped foot in Vietnam during the Vietnam era. He is, therefore, presumed to have been exposed to Agent Orange. Accordingly, if the medical evidence shows the Veteran's stroke was caused by ischemic heart disease, it would warrant service connection on a secondary basis. Private treatment records show the Veteran had a stroke in August 1985. An August 1985 EKG was interpreted to show an old antero lateral wall myocardial infarction; VA considers old myocardial infarction a form of ischemic heart disease. In a November 1985 discharge summary, a private physician opined the stroke was "most likely thrombo-embolic in origin because of cardiac condition." The physician noted the Veteran had a history of heart disease and was told he had idiopathic hypertrophic subaortic stenosis (IHSS). In a September 1986 letter, a private cardiologist noted he had been treating the Veteran for approximately 1 year. He noted a cardiac catheterization performed before he began treating the Veteran revealed no coronary artery disease (a form of ischemic heart disease), and he was diagnosed with IHSS. However, the diagnosis of IHSS was called into question in 1984 after he developed congestive heart failure. Based on his own examination, the cardiologist found it more likely that the Veteran had idiopathic cardiomyopathy, which he noted was primarily a disease of the heart muscle. In a March 1988 letter, another private physician indicated the Veteran's stroke was the "result of cardiomyopathy," and noted the Veteran had been previously diagnosed with congestive heart failure and IHSS. He diagnosed congestive cardiomyopathy probably secondary to viral myocarditis. The Veteran's treatment records show he underwent a heart transplant in April 1988 and a second in March 1998. He was provided a VA heart examination in September 2010. The examiner found the Veteran had been diagnosed with ischemic heart disease. It's not clear when such diagnosis was made or whether the examiner felt it was accurate, but he did note the Veteran was diagnosed with IHSS in 1980. Based on the foregoing, the Board finds a clarifying medical opinion is necessary to determine whether the Veteran's stroke was caused by ischemic heart disease. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VCAA notice on his expanded claim for service connection for an acquired psychiatric disorder, to include depression and generalized anxiety disorder, that is compliant with the current notice requirements for service connection. 2. Provide the Veteran with another opportunity to verify the dates his stressors occurred and to provide more specific information regarding the circumstances of the reported stressors. He should be notified that specific dates (or within a timeframe of 2-3 months), locations and names of the people involved will better allow for verification of these stressors. 3. If the Veteran responds with an updated stressor statement, the RO should assess whether this information is adequate to provide to the Joint Services Records Research Center (JSRRC). 4. Conduct all necessary development required relating to the Veteran's newly expanded claim for service connection for an acquired psychiatric disorder, to include if necessary obtaining a VA examination and/or opinion. 5. Arrange to obtain a VA medical opinion (from a cardiologist if possible) as to whether the Veteran's August 1985 cerebrovascular accident and its residuals was proximately due to or the result of ischemic heart disease. The examiner should review the Veteran's file and provide an opinion that responds to the following: (a) Is it at least as likely as not (50 percent or better probability) that the Veteran's cerebrovascular accident was proximately due to ischemic heart disease? The examiner should consider, and discuss as necessary, the various cardiac diagnoses and etiology opinions regarding the Veteran's cerebrovascular accident within the record, to include: (a) an August 1985 EKG interpreted to show an old antero lateral wall myocardial infarction (VA considers old myocardial infarction a form of ischemic heart disease); (b) a November 1985 discharge summary where a private physician opined the stroke was "most likely thrombo-embolic in origin because of cardiac condition." (noting a history of heart disease and reported history of idiopathic hypertrophic subaortic stenosis (IHSS)); (c) a September 1986 letter from a private cardiologist noting a cardiac catheterization revealed no coronary artery disease (a form of ischemic heart disease) and diagnosing idiopathic cardiomyopathy; (d) a March 1988 letter that included a diagnosis of IHSS and congestive cardiomyopathy probably secondary to viral myocarditis; (e) documentation of heart transplant in April 1988 and a second in March 1998; and (f) VA heart examination in September 2010 that found the Veteran had been diagnosed with ischemic heart disease (noting a diagnosis of IHSS in 1980). (b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's residuals of a cerebrovascular accident have been aggravated by ischemic heart disease? Aggravation is an increase in severity beyond the natural progress of the disorder. If the opinion is that the cerebrovascular accident and its residuals is not caused by, but is aggravated by ischemic heart disease, the examiner should specify, to the extent possible, the degree of disability that is due to such aggravation. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data as appropriate. 6. After undertaking any other development deemed appropriate, adjudicate the newly expanded issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and generalized anxiety disorder, and readjudicate the issue of service connection for residuals of a cerebrovascular accident, to include as secondary to ischemic heart disease due to herbicide exposure. If the benefits sought are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. Then return the case to the Board for further review if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs