Citation Nr: 18157815 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-59 429 DATE: December 13, 2018 ORDER Entitlement to service connection for a stomach disability is denied. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDINGS OF FACT 1. There is no probative evidence of any diagnosed stomach disability at any point during the appeal period. 2. There is no probative evidence that the Veteran was diagnosed with PTSD at any point during the appeal period. 3. A preponderance of the evidence is against a finding that symptoms of an acquired psychiatric disorder manifested during service or that any diagnosed psychiatric disorder was related to an in-service event or injury. CONCLUSIONS OF LAW 1. A stomach disability was not incurred in, or aggravated by, active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depression, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to March 1969. The Veteran passed away in January 2014, and his spouse, the appellant, was determined to be a valid claimant for substitution in a September 2015 memorandum. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a stomach disability The Veteran’s service treatment records are negative for any complaints or treatment related to the stomach. Similarly, review of the Veteran’s post-service medical records does not reflect any complaint, treatment or diagnosis of a stomach condition at any point during the appeal period. The probative evidence of record simply does not show that the Veteran was diagnosed with a stomach disability at any point in his lifetime. Without a disability, there can be no entitlement to compensation. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 U.S.C. § 1110. Accordingly, the claim for service connection for a stomach disability is denied. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression The Board notes that review of the record reflects that there is no evidence of a diagnosis of PTSD at any point during the appeal period. In fact, a July 2010 VA PTSD screen was negative, and a June 2013 note reflects that the Veteran did not have a diagnosis of PTSD. However, the record indicates the Veteran had a diagnosed psychiatric disability of depression during the appellate period, diagnosed by VA medical doctors at multiple visits between 2010 and 2013. Therefore, the first Shedden element of a current disability is established. With regard to the second Shedden element of an in-service event or injury, the weight of the evidence is against a finding that any such event or injury occurred. Neither the Veteran nor the claimant has alleged that any specific in-service event caused a psychiatric disability. Furthermore, the medical evidence of record is indicative that the Veteran’s psychiatric symptoms were attributable to non-military stressors. Specifically, an August 2013 VA mental health assessment reflects that the Veteran reported irritability during evenings, when he got home and there was “too much going on.” The Veteran was assessed to have mild irritability mostly related to family stressors. His diagnosis was confirmed as depression with anxiety and irritability. Additionally, the evidence does not indicate that any psychiatric disorder or symptoms of such manifested during the Veteran’s active duty service. There is no evidence of treatment or complaints of any symptoms of depression or any other psychiatric disorder during the Veteran’s period of active duty. The March 1969 separation examination includes no diagnosis of a psychiatric disorder, and the Veteran did not report having depression or any other psychiatric symptoms. Furthermore, the clinical psychiatric evaluation was normal, and the Veteran stated “to the best of my knowledge, I am in good health.” Hence, as the weight of the evidence is against a finding that any in-service event occurred, the second element of the claim of service connection for an acquired psychiatric disability is not met. In summary, the claim of service connection for an acquired psychiatric disorder, to include PTSD and depression, is denied. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. The Board finds that further development of the record is necessary to comply with VA’s duty to assist the claimant in the development of facts pertinent to the claim for COPD, which the Veteran asserted was due to in-service exposure to asbestos. With respect to claims involving asbestos exposure, there is no specific statutory guidance, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA policy stipulates that VA must determine whether military records demonstrate evidence of asbestos exposure during service and, if so, whether there is a relationship between any such asbestos exposure and the claimed disease. The Board notes that, to this point, no attempt has been made to determine the extent of the Veteran’s asbestos exposure during service. Therefore, the claim must be remanded to accomplish such development and to obtain a VA medical opinion to determine whether the Veteran’s COPD was caused by asbestos exposure or was otherwise related to his time in service. The matter is REMANDED for the following action: 1. Attempt to verify through official sources the Veteran’s claimed exposure to asbestos, and make a formal finding in a memorandum for the record regarding the nature and extent of such exposure. 2. Then, arrange for an appropriately qualified VA examiner to review the Veteran’s claims file and opine as to the nature and etiology of the claimed COPD. The Veteran’s claims folder must be made available to, and reviewed by, the examiner. Based on a review of the record, the examiner must opine as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s COPD, or any other respiratory disorder found to be present, was incurred during his active military service or was otherwise related to military service, to include as due to his claimed asbestos exposure. The complete rationale for any conclusion reached should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel