Citation Nr: 1751322 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-01 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for headaches and, if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been received to reopen a claim of service connection for asbestosis and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.Spigelman, Associate Counsel INTRODUCTION The Veteran had active military service from July 1965 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. As an initial matter, the Board notes that in a December 2016 rating decision, the VA RO continued an evaluation of the current status of the Veteran's post-traumatic stress disorder (PTSD). While the Veteran submitted an informal hearing presentation in March 2017, the Veteran has not filed a VA-9 to appeal the December 2016 rating decision to the Board. Accordingly, the Veteran's claim for a rating in excess of 50 percent for his service-connected PTSD is not properly before the board at this time. FINDINGS OF FACT 1. An unappealed October 2005 rating decision denied the claims of entitlement to service connection for headaches and asbestosis. 2. The evidence associated with the claims file subsequent to the October 2005 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims, is neither cumulative or redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for headaches and asbestosis. 3. Asbestosis is not etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The October 2005 rating decision denying the claims of service connection for headaches and asbestosis is final. 38 U.S.C. §7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received sufficient to reopen claims of entitlement to service connection for headaches and asbestosis. 38 U.S.C. §7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. Asbestosis was not incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen An October 2005 rating decision denied the Veteran's claims of entitlement to service connection for headaches and asbestosis based on findings that the evidence did not show that the Veteran's headaches began in or were caused by active service and that the Veteran was exposed to asbestos while in active service. The Veteran did not appeal that decision as to these claims. Therefore, the October 2005 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Board acknowledges that in June 2011, the RO denied the Veteran's claims for service connection for headaches and asbestosis. However, the Board notes that the RO did not address whether new and material evidence was presented sufficient to reopen the Veteran's claims. The question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Accordingly, the Board will adjudicate the question of whether new and material evidence has been received. The pertinent evidence at the time of the October 2005 rating decision included the Veteran's service treatment records (STRs), which failed to show that the Veteran was diagnosed with headaches while on active duty and that the Veteran was exposed to asbestos while on active duty. The pertinent evidence received since the October 2005 rating decision includes the following: the Veteran's post-service treatment records and private medical records, which establish that the Veteran is presently diagnosed with asbestosis and a headache disability; a January 2010 statement by the Veteran that described injuries suffered in a motor vehicle accident that occurred while the Veteran was in active service; and two December 2010 statements by the Veteran which opine that his asbestosis was related to his MOS as a track repairman and reassert that his head, neck, hip, and back were injured in a truck accident. The Board finds that the Veteran's post-service treatment records, medical records, and 2010 statements are new and material, as they attest to the current status of the Veteran's headaches and asbestosis. The evidence also attests to the relationship between the Veteran's active service and the two disabilities. The Board notes that the evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claims of entitlement to service connection for headaches and asbestosis. Accordingly, reopening of the claims of entitlement to service connection for headaches and asbestosis is granted. Shade v. Shinseki, 24 Vet. App. 110 (2012). Entitlement to Service Connection for Asbestosis The Veteran asserts that he has asbestosis related to his active service. Specifically, the Veteran claims that he contracted asbestosis as a result of his military occupational specialty (MOS) as a tracked vehicle repairman while serving on active duty. Service treatment records are silent for a diagnosis of asbestosis while the Veteran was in active service. A record of assignments between 1965 and 1968 documented that the Veteran served primarily as a tracked vehicle mechanic and a wheeled vehicle mechanic while in active service. At a May 1965 enlistment examination, the Veteran's lungs and chest were found to be clinically normal upon examination and there is no indication from the examination reports that the Veteran was diagnosed with asbestosis. In May 1968, the Veteran was afforded a separation examination. At that time, the Veteran specifically denied shortness of breath, a chronic cough, and asthma. Further, the Veteran's lungs and chest were found to be clinically normal upon examination, and there is no indication from the examination reports that the Veteran was found to have asbestosis. A review of the post-service medical evidence of record shows that the Veteran receives treatment from private treatment providers and at the VAMC for various ailments. A review of the private treatment records reveals a March 2001 radiology report that finds that the Veteran has bilateral interstitial fibrosis consistent with asbestosis. A review of the VAMC treatment notes of record shows that asbestosis is not noted on the Veteran's current problem list with the VAMC. Additionally, multiple VAMC treatment notes find the Veteran to have clear lungs and lung volumes within normal limits. Ultimately, there is no indication from either the private or the VAMC notes of record that any diagnosed asbestosis was present within one year of the Veteran's separation from active service or that it has been otherwise related to his active service. Of record are March 2001 and April 2001 letters from private treatment providers. In the March 2001 letter, Dr. H noted that the Veteran had occupational exposure to various asbestos products from 1968-71 while working as an aircraft mechanic. Dr. H opined that on the basis of occupational exposure and reading of a chest x-ray, the Veteran had asbestosis within a reasonable degree of medical certainty. In the April 2001 letter, Dr. O opined that on the basis of a medical history review, which was inclusive of a significant occupational exposure to asbestos dust, physical exam, and chest radiograph, a diagnosis of asbestos was established within a reasonable degree of medical certainty. The Board finds that the March 2001 and April 2001 private opinions provided in support of the Veteran's claim are not adequate for adjudication purposes. In this regard, the private treatment providers did not opine as to whether the Veteran's asbestosis was related to his active service. As the medical opinions are incomplete, they are inadequate and cannot serve as the basis of a grant of entitlement to service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). In January 2011, the Veteran was afforded a VA examination. The Veteran stated that he was diagnosed in Mississippi with a history of asbestosis. The Veteran denied receiving treatment for asbestosis. The Veteran explained that he was in the Army, worked as a mechanic in Germany, and later went to Vietnam. The Veteran reported that after discharge he worked as an aircraft mechanic. The examiner found that the Veteran had a positive history of dyspnea on moderate exertion, but had no conditions that may be associated with pulmonary restrictive disease, chest wall scarring, deformity of chest wall or signs of significant weight loss or malnutrition. Additionally, the examiner found no evidence of abnormal breath sounds. The examiner noted that the Veteran's examination was negative for a diagnosis of asbestosis and opined that any asbestosis present was less likely than not caused by or a result of the Veteran's service in the military as a wheel mechanic. The examiner explained that the MOS of construction mechanic involved minimal exposure to asbestos, that after separation from service the Veteran worked as an aircraft mechanic and that a current chest x-ray did not reflect findings consistent with asbestosis. The Board finds that the January 2011 VA examination is adequate, as the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran and private treatment providers, and provided thorough supporting rationales for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As a result, the Board finds the opinion provided by the VA examiner to be the most probative evidence of record. The Board notes that the Veteran is not competent to provide an opinion linking any diagnosed asbestosis to active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. While the Veteran has been diagnosed with asbestosis, as noted above, there is no indication from the record that the Veteran had asbestosis to a compensable degree within one year of separation from active service. Therefore, presumptive service connection is not applicable in this case. Additionally, there is no indication from the record that the Veteran's asbestosis was caused or aggravated by a service connected disability. Therefore, secondary service connection is not applicable in this case. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for asbestosis is not warranted. 38 U.S.C. §5107(b) (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received and reopening of the claim of entitlement to service connections for headaches is granted. New and material evidence has been received and reopening of the claim of entitlement to service connection for asbestosis is granted. Entitlement to service connection for asbestosis is denied. REMAND The Board finds that further development is required before the remaining claim on appeal is decided. A review of the record shows that the Veteran was last afforded a VA examination for his headaches in January 2011 assessing whether the Veteran's headache disability was related to a November 1966 in-service motor vehicle accident. The Board notes that in December 1965, prior to his accident, the Veteran complained of a cough and headaches. The Board also notes that the Veteran told the RO in December 2010 that his headache disability had persisted since his November 1966 motor vehicle accident. In light of the Veteran's December 2010 statement, the Board finds that the RO should afford the Veteran a new VA examination to determine the nature and etiology of any currently present headache disability. For the limited purpose of securing a new examination, the Board finds the Veteran competent and credible to report is headaches in service, as well as his statement of continuing headaches since the motor vehicle accident. Additionally, current treatment records should also be identified and obtained before a decision is made with regard to the issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA treatment records from October 2016 and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any headache disability currently present. The claims file must be made available to, and reviewed in its entirety, by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently present headache disability is etiologically related to the Veteran's active service. In providing the opinion, the examiner should consider and specifically address the Veteran's December 1965 complaint of headaches, which is of record in the Veteran's claims file. The examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently present headache disability: (a) had its onset in service or is otherwise related to active service; (b) constitutes an organic disease of the nervous system; or (c) was caused or aggravated by a service-connected disability. The rationale for all opinions must be provided. 3. Confirm that the VA examination reports and medical opinions comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then return the case to the Board. The Veteran 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. §§ 5109B, 7112 (2017). ______________________________________________ Yvette R. White Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs