Citation Nr: 18146143 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-14 578 DATE: October 30, 2018 ORDER Entitlement to service connection for asbestosis is denied. REMANDED Entitlement to service connection for tongue cancer is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, to include as secondary to tongue cancer, is remanded. FINDING OF FACT Asbestosis was not manifest during active service; a current disability involving asbestosis is not shown; and asbestosis is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for asbestosis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran’s original claim for a mental health condition has been expanded to include other possible acquired psychiatric disorders, and the claim has been recharacterized as such on the title page. As the Veteran is unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). As part of his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In August 2018 correspondence the Veteran was properly notified of the date, time and location of the scheduled videoconference hearing, but failed to report for the hearing without explanation or any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran 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 claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In sum, the Board is satisfied that the originating agency properly processed the Veteran’s claim after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for Asbestosis Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present or a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis for Service Connection for Asbestosis The Veteran has made a claim for asbestosis, saying he was exposed to asbestos during his service in Vietnam 1968-1969. Of significant note, the Veteran has not asserted that he actually has the disease of asbestosis or asbestos-related disease, but only that he was exposed to asbestos during active military service in Vietnam. The Veteran’s service entrance examination of September 1967 and his exit examination of December 1969 are silent for any asbestos-related notations, to include any respiratory or pulmonary difficulties. The Veteran’s claims file contains no evidence of any private or VA medical provider that has made a diagnosis of any asbestosis or asbestos-related condition of any kind. A VA treatment note of August 2012 that included a comprehensive physical examination of the Veteran found clear lungs and no negative findings for any respiratory or pulmonary issue. The Board notes the statements from the Veteran regarding his disability claim of asbestosis. Generally, lay evidence is probative with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence on its own can be sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson cannot provide evidence as to more complex medical questions and, specifically, cannot provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, there is no diagnosis of a current disability of asbestosis or any asbestos-related condition. The service treatment records are completely silent for any such disability. The Veteran, in his separation report of medical history, did not report an asbestos related condition. A VA examination from 2012 does not document an asbestos-related condition. No private medical provider has diagnosed an asbestos-related condition. Thus, the Veteran’s claim does not meet the first prong of service connection, the requirement of a current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed asbestosis was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a disability involving asbestosis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   REASONS FOR REMAND 1. Entitlement to service connection for tongue cancer is remanded. The Veteran is claiming entitlement to service connection for tongue cancer, which he asserts had its origins during active service in Vietnam 1968-69. The Board notes the presence of Social Security disability and other medical records, which indicate that the cancer was first diagnosed in February 2005. The formal diagnosis by private medical providers was invasive squamous cell cancer in the region of the tonsils, esophagus, and tongue. The condition was treated, per the Veteran’s private oncologist at the time, with the excision of the cancerous areas, to include parts of the right-hand side of the tongue, along with chemotherapy and radiation therapy. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has never had a VA examination and opinion for service connection for his claimed tongue cancer. The Board notes that while the Veteran has described his claimed issue as tongue cancer, medical records describe it more formally as invasive squamous cell cancer in the region of the tonsils, esophagus, and tongue. Because the Veteran has service in Vietnam noted in his personnel records, and the list of diseases associated with exposure to certain herbicide agents includes cancers that relate to the respiratory area and other cancers, an examination and opinion for service connection, to include the possibility of herbicide agent exposure, is necessary to investigate all possibilities of service connection for the Veteran’s claimed cancer condition. 38 C.F.R. § 3.309(e). 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f), 4.125(a). 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. See 38 C.F.R. § 3.304(f). The Board notes that VA, effective March 19, 2015, amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran’s original claim was made on November 18, 2011 (i.e., before August 4, 2014), the diagnosis of PTSD pursuant to DSM-IV is applicable to this appeal. See 38 C.F.R. § 4.125(a). Here, the Board is cognizant of a VA examination of August 2012 that found no diagnosis of a current mental disorder. However, that examiner also noted the Veteran’s depressed mood, and attributed that in part to the Veteran’s diagnosed tongue cancer and subsequent residuals, as noted above. The possibility therefore exists of secondary service connection for the acquired psychiatric disorder as being proximately due to or the result of the tongue cancer, if the latter becomes service connected. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Additionally, the Veteran has remarked about his depression and two buddies have submitted statements observing what they consider to be depressed mood in the Veteran. As such, the claim for an acquired psychiatric disorder is inextricably intertwined with the tongue cancer service connection claim being remanded, and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s tongue cancer. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed tongue cancer disability had its onset in service or is otherwise related any to any in-service disease, event, or injury, to include the possibility of herbicide agent exposure during the Veteran’s active service in Vietnam in 1968 to 1969. A detailed rationale supporting the examiner’s opinion should be provided. 3. After the above VA examination for the tongue cancer, schedule the Veteran for a VA examination with a VA (or VA contracted) psychiatrist or psychologist to determine the nature and etiology of the Veteran’s acquired psychiatric disorder(s), to include the possibility of secondary service connection to the claimed tongue cancer. After reviewing the claims file and examining the Veteran, the examiner should opine to the following: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s acquired psychiatric disorder is related to his active duty service, or are otherwise related to any in-service disease, event, or injury? If not, is it at least as likely as not (probability of fifty percent or greater) that the acquired psychiatric disorder was caused by the Veteran’s tongue cancer disability or any other service-connected disability? If the tongue cancer did not cause the acquired psychiatric disorder, is it at least as likely as not (probability of fifty percent or greater) that acquired psychiatric disorder was aggravated (an increase in severity) by the tongue cancer disability or any other service-connected disability? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the acquired psychiatric disorder by the service connected disability. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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. §§ 5109B, 7112 (2012). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel