Citation Nr: 1634692 Decision Date: 09/02/16 Archive Date: 09/09/16 DOCKET NO. 11-29 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for asbestosis. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen LoGerfo, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from November 1961 until May 1965. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, WA and an April 2010 rating decision by the RO in Oakland, CA. In September 2015, this case was remanded for a hearing. In November 2015, that remand was vacated due to the fact that a hearing had been held by the Undersigned Veterans Law Judge (VLJ) in August 2015. The issues of hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD related to his active military service by a VA psychiatrist. 2. The Veteran does not have a current asbestos-related disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2015). 2. The criteria for service connection asbestosis have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection 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. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). A. Acquired Psychiatric Disorder The Veteran is seeking entitlement to service connection for an acquired psychiatric disability, to include PTSD. He has attributed his current psychiatric problems to a number of stressful incidents in service. Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2015). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a) (2015). 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). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). However, VA has amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. These revised regulations became effective July 13, 2010, and apply in cases like the Veteran's. Id. The Veteran testified that he was stationed at Boca Chica Naval Air Station from February 1962 until May 1965 as part of the crash crew during the Cuban Missile Crisis. The Veteran reported being in the dark out on the runway waiting for planes to return. He indicated that he felt like he could be exposed to enemy fire or snipers. This caused him great stress, anxiety and fear. Additionally, he testified that he witnessed Coast Guard boards carrying the bloated bodies of deceased men, women and children that had attempted to escape Cuba. The Veteran was examined by a VA psychiatrist in April 2016. He was found to meet the full DSM-5 criteria for PTSD. The Veteran's most prominent symptoms are persistent and exaggerated negative beliefs about the world, persistent and negative emotional state, anxiety/worry and hypervigilance. The examiner found that the stressor of being exposed to potential enemy fire was adequate to support the diagnosis of PTSD and that his symptoms were related to this stressor. The examiner also found that witnessing the sight of dead bloated bodies of Cuban refugees was also adequate to support the diagnosis of PTSD and that his symptoms were related to this stressor. The examiner opined that the Veteran's PTSD is at least as likely as not caused by his identified stressors during his military service. The Veteran's credible lay testimony establishes that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. Based on the Veteran's credible testimony and the psychiatrist's detailed and supportive opinion, the elements of service connection for PTSD have been met. b. Asbestosis The evidence of record does not support that the Veteran meets element (1) of service connection in that he does not have a current asbestos-related disability. The Veteran testified that as part of the crash crew, he went into a fire with an asbestos suit on a regular basis for two years. The Veteran did not receive medical treatment for any asbestos-related diseases in service. The Veteran reports that a spot was found on his lung through an x-ray and he filed a claim with his post-service construction employment for asbestos exposure. The weight of the evidence is against finding that the Veteran has a current asbestos-related disability. There is a February 2001 private report which found that the Veteran was frequently exposed to asbestos during post-service employment. The report indicated that there was evidence of a possible early increase in irregular opacities and interstitial fibrosis but no definite evidence for pleural abnormalities. It was advised that the Veteran have regular follow-ups and observations for the development of asbestos-related conditions in the future. The Veteran did have a chest scan in September 2006 that indicated that the parenchymal findings present were compatible with mild interstitial fibrosis. The distribution and appearance were compatible with asbestos-related interstitial fibrosis. There were bilateral changes of the chest wall which were nonspecific, but could represent asbestos related pleural disease. However, in December 2007, the Veteran had a chest CT which showed minimal bronchial thickening, but no evidence for interstitial lung disease. There was a tiny nodule at the left lung base measuring 2-3 mm. Also, there were small reactive mediastinal lymph nodes noted. There was no pleural calcification or thickening evident. Finally, in September 2008, the veteran's current chest CT revealed no evidence of interstitial lung disease or asbestos-related pathology. The evidence does not support a finding of a current asbestos-related disability, therefore, the claim must be denied. II. The Duties to Notify and Assist When VA received a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Here, the Veteran was provided with the relevant notice and information in an August 2009 letter. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. No medical examination or opinion has been obtained with respect to the Veteran's claims for service connection for a asbestosis. However, the Board finds that the evidence, which does not reflect competent evidence of current symptoms or a relationship to service or a service-connected disability, warrants the conclusion that a remand for examinations and/or opinions is not necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 VA to make a decision on the claim. As discussed above, the evidence does not satisfy the standards of McLendon, as there is no indication of current symptoms or a relationship between a claimed disability and service. ORDER Entitlement to service connection for PTSD is granted. Entitlement to service connection for asbestosis is denied. REMAND The Veteran asserts that he had repeated noise exposure while on the crash crew in Key West, Florida while recovering and launching air crafts. He specifically testified that the exposure to jet noise caused his current bilateral hearing loss and tinnitus disabilities. The Veteran's in-service treatment records do not show any findings of hearing loss. At the Veteran's hearing, he reported having a private audiogram three months prior and receiving hearing aids. Moreover, in December 2014, the Veteran had a private audiogram that did show bilateral hearing loss. In August 2015, he submitted a statement from a nurse practitioner that noted that exposure to moist tropical environments in service led to chronic fungal infection that "could be a contributing factor" to his hearing loss disability. The Veteran has not had a VA examination to ascertain whether he has a hearing loss for VA purposes and whether there is a nexus between his in-service noise exposure and a current hearing loss or tinnitus disability. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological evaluation in order to determine the nature and etiology of his bilateral hearing loss disability and tinnitus. If tinnitus is not diagnosed, the examiner should expressly state that fact. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent of more) that any identified hearing loss and tinnitus had its onset during active service; is related to the Veteran's in-service noise exposure; and/or otherwise originated during active service. Did exposure to a tropical environment in service cause chronic fungal infections which caused the current hearing loss disorder? Why do you say so? All relevant medical records must be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions should be provided. 2. Then, readjudicate the issues of service connection for bilateral hearing loss and tinnitus. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claims for benefits, to include a summary of the evidence considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). ______________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs