Citation Nr: 20021403 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-21 740 DATE: March 25, 2020 REMANDED Entitlement to service connection for eosinophilia is remanded. Entitlement to service connection for a lung condition, to include as secondary to eosinophilia, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and/or depression, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from November 1981 to February 1984 and from February 1987 to September 1988. A February 2015 administrative decision found that the Veteran’s discharge for the period of service from February 1987 to September 1988 was under dishonorable conditions for VA purposes. The Board notes that the Veteran initiated an appeal of an increased initial rating for pes planus and plantar fasciitis (previously rated as flat feet); however, in December 2016, before the issue was transferred to the Board, the Veteran indicated in writing that he wished to withdraw the appeal. The issue is therefore no longer on appeal. 38 C.F.R. § 20.204. In addition, the Veteran did not perfect appeals of service connection for dermatitis, eczema, hypertension, a bilateral hip condition, and a bilateral knee condition. In a substantive appeal (VA Form 9) faxed in June 2017, the Veteran indicated that he was only appealing certain issues; however, only three of four pages were received, and it was unclear which issues the Veteran wished to appeal. In January 2020, VA sent the Veteran a letter requesting clarification of the issues he intended to appeal. The Veteran’s attorney resubmitted the June 2017 substantive appeal, which indicates that the Veteran wished to continue the appeal for service connection for PTSD. As such, the appeals of service connection for dermatitis, eczema, hypertension, a bilateral hip condition, and a bilateral knee condition are not before the Board. Finally, the Board acknowledges that the Veteran has appealed issues of an increased rating for right leg radiculopathy and an earlier effective date for the grant of eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35. A Statement of the Case (SOC) was issued in February 2020, and the Veteran has not yet submitted a substantive appeal. As such, these issues are not before the Board at this time. The Board notes that during the pendency of the claim the Veteran has raised the issue of eosinophilia and a lung condition under 38 U.S.C. § 1151. Here, the Veteran has consistently asserted that exposure to mold at a VA facility in 2012, years after his separation from active military service, caused the claimed eosinophilia and/or lung condition. In this regard, claims for service connection are separate and distinct from claims for compensation under 38 U.S.C. § 1151. See Anderson v. Principi, 18 Vet. App. 371 (2004) (“There is a legal distinction between filing a claim for service connection for a disability pursuant to 38 U.S.C. § 1110 and a claim for compensation derived from a grant of compensation pursuant to 38 U.S.C. § 1151.”); Trafter v. Shinseki, 26 Vet. App. 267, 285 (2013) (Hagel, L., concurring) (“This Court’s case law has consistently distinguished claims made pursuant to section 1151 and claims for disability compensation pursuant to section 1110.”). As such the claims for entitlement to eosinophilia and a lung condition under 38 U.S.C. § 1151 are REFERRED for appropriate action. 1. – 3. Entitlement to service connection for eosinophilia and a lung condition are remanded. As these claims have a somewhat complicated history, the Board finds a recitation of the procedural history to be instructive for the purpose of clarity. The Veteran submitted a statement in September 2012 in which he indicated that he was exposed to asbestos in service. He did not specify a resulting disability; however, in an October 2013 rating decision, service connection for “any lung condition” was denied. The decision noted that service treatment records (STRs) did not contain complaints, treatment, or diagnosis for a lung condition, and the evidence did not show that any lung condition occurred in or was caused by service. Although the Veteran submitted two notices of disagreement and an accompanying statement in February 2014, he did not expressly appeal the denial of service connection for a lung condition. In an August 2014 application for compensation, however, the Veteran claimed a disability of “weezing/itching.” He asserted that he was exposed to mold in in the Martinsburg, West Virginia, VA Medical Center (VAMC) when he was staying “in the Dom” in March 2012, which caused eosinophilia, which in turn caused shortness of breath and wheezing. In a February 2015 rating decision, service connection for eosinophilia was denied. The decision noted that STRs did not contain relevant complaints, treatment, or diagnosis, and there was no link between the condition and the Veteran’s military service. The February 2015 rating decision also determined that new and material evidence had not been received to reopen the claim for service connection for a lung condition because there was no evidence that showed the Veteran was diagnosed or treated for a respiratory/lung condition due to asbestos exposure during service. The Board notes, however, that the Veteran submitted the August 2014 claim for compensation within one year of the October 2013 rating decision. The Board construes the August 2014 claim for service connection for “wheezing/itching” as a timely notice of disagreement with the October 2013 denial of service connection for a lung condition. Accordingly, the threshold step of whether new and material evidence had been submitted is not for application. The Board finds that remand is required to obtain VA medical opinions. VA medical treatment records indicate that the Veteran was admitted to the Martinsburg VAMC GOALS Program in May 2012. He resided in the domiciliary care program until February 2013 when he left the program. VA treatment records also indicate that that the Veteran was found to have eosinophilia “dating back to 2012.” Laboratory reports dated in June 2014 indicate that eosinophilia was detected, and that it “can be associated with a variety of conditions.” A VA treatment record dated in August 2014 indicates that “in view of the elevated IgE levels, allergic etiology especially molds should be considered.” The Veteran has also been noted to have dyspnea, asthma, and chronic obstructive pulmonary disease (COPD). The Board finds that the Veteran’s statements and evidence of record support the need for VA medical opinions on these issues. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A(d). 5. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran has consistently asserted that he has PTSD due to incidents that occurred in Barcelona, Spain, in December 1987, during his second period of active service. See the July 2012 stressor statement, August 2014 application for compensation, January 2015 notice of disagreement. He has also contended that he has major depression and anxiety disorder due to his lack of mobility and constant pain. See the July 2012 statement. As noted above, a February 2015 administrative decision found that the Veteran’s discharge for the period of service from February 1987 to September 1988 was under dishonorable conditions for VA purposes. A discharge under dishonorable conditions bars the payment of benefits unless the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). As such, service connection is barred for any disability incurred in or aggravated by the Veteran’s period of service from February 1987 to September 1988, to include any acquired psychiatric disorder that resulted from any incident that occurred in December 1987. A July 2013 VA mental disorders examination diagnosed the Veteran with alcohol dependence, polysubstance dependence, and personality disorder. The examiner noted that there was no evidence to link any of his mental disorders to his military service. In January 2017, the Veteran had a mental status evaluation by Dr. J.A., a private psychologist. The Veteran reported that during boot camp, someone fell on ice and froze to death. He also indicated that there was a collision with a Russian ship and reiterated the incident in Barcelona in 1987. The Veteran completed a Clinician Administered PTSD Scale (CAPS), which measures seven criteria to determine whether a PTSD diagnosis is warranted. Results indicated that the boot camp and Russian ship stressors met Criterion A. It is unclear, however, whether the remaining criteria (Criterion B through Criterion G) were met based solely on the stressors that occurred during the Veteran’s first period of service. Dr. J.A. also noted that “in taking his CAPS based protocol [the Veteran] tended to be very self preoccupied with his problems which loom very large for him,” but did not further elaborate, nor did he discuss the July 2013 VA examination results. As such, the Board finds that private evaluation is insufficient to adjudicate the claim for service connection, and remand is necessary to obtain a medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current nature and etiology of the claimed eosinophilia and lung condition. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail, to include current symptomatology and diagnoses of eosinophilia and/or any lung condition, if any are present. The examiner should then address the following: a. Is at least likely as not (a probability of 50 percent or greater) that any diagnosed eosinophilia and/or lung condition is related to the Veteran’s first period of active service November 1981 to February 1984? b. Is at least as likely as not that any diagnosed lung condition is proximately due or aggravated beyond its natural progression by the eosinophilia? 2. Obtain a VA medical opinion on the nature and likely etiology of any acquired psychiatric disorder, to include PTSD, anxiety, and/or depression. For each diagnosis, the examiner should provide a medical opinion on whether it is as likely as not (50 percent or greater probability) that the diagnosis is related to the Veteran’s first period of active service November 1981 to February 1984. The examiner should also opine on whether it is at least as likely as not (50 percent or greater probability) that any current acquired psychiatric disorder was caused by or aggravated beyond the normal progression (chronically worsened) by a service-connected disability. The entire claims file, including a copy of this REMAND, must be reviewed. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. (Continued on the next page)   If the VA examiner determines that further examination is necessary in order to render the requested medical opinions, the AOJ should schedule the Veteran for such an examination. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.