Citation Nr: 21008961 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-53 148A DATE: February 18, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), claimed as due to in-service exposure to jet fuel, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD), claimed as due to an in-service personal assault, is granted. Entitlement to an effective date earlier than December 13, 2017, for the award of service connection for bilateral hearing loss is denied. REMANDED Entitlement to a compensable initial evaluation for service-connected bilateral hearing loss is remanded. Entitlement to service connection for a heart disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a respiratory disorder other than COPD, claimed as due to in-service exposure to jet fuel or secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran was exposed to various hazardous chemicals, to benzene, jet fuel, and solvents, while on active duty with the United States Marine Corps. 2. The record includes a diagnosis of COPD during the appeal period, and the evidence reflects that this disease was the result of the Veteran’s in-service exposures to benzene, jet fuel, and solvents. 3. The Veteran is not a combat veteran. 4. A diagnosis of PTSD based on claimed in-service stressors, in accordance with the Diagnostic and Statistical Manual, Fifth Edition (DSM-V), has been offered. 5. Credible supporting evidence that the claimed in-service stressors occurred has been submitted, to include consistent statements of the Veteran that were considered by a qualified clinician in the process of providing a diagnosis in this matter. 6. The most probative evidence reflects that the Veteran’s PTSD is the result of an in-service stressor event. 7. No formal or informal claim to establish service connection for bilateral hearing loss was received or adjudicated by the Department of Veterans Affairs (VA) prior to December 13, 2017. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1111, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for an effective date prior to December 13, 2017, for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.326(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1972 to July 1976. He also had additional service of an unverified nature in the Marine Corps Reserves from July 1976 to July 1978. This matter comes to the Board of Veterans' Appeals (Board) from January 2018 and August 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with these determinations, and the present appeal ensued. In July 2020, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the July 2020 hearing is associated with the file. In September 2020, the Veteran’s private attorney submitted additional evidence in support of the Veteran’s appeal directly to the Board which was accompanied by a waiver of the AOJ’s initial review of such. Preliminary Note The Board observes that the AOJ denied prior claims to establish service connection for many of the disabilities subject to this decision in rating decisions that pre-dated those on appeal. While the AOJ has interpreted the Veteran’s subsequent statements as petitions to reopen these previously-denied claims, the Board observes that none of these prior rating decisions became final due to VA’s receipt of new and material evidence within the appeal period of each. Accordingly, the Board will consider all of the Veteran’s appeals seeking to establish service connection on the merits without discussion concerning the propriety of reopening such. 1. Entitlement to service connection for COPD, claimed as due to in-service exposure to jet fuel, is granted. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Analysis The Veteran asserts that his in-service exposure to benzene, solvents, and jet fuel, in connection with his Military Occupational Specialty (MOS) while working on the “flight line” of the U.S.S. Iwo Jima, led to the development of COPD. For the reasons expressed below, the Board concludes that the most probative evidence supports his contention, and thus, entitlement to service connection for this disability is warranted. The evidence reflects a diagnosis of COPD prior to and during the appeal period, and the Veteran’s service department records bolster his assertion of probable in-service exposure to benzene, solvents, and jet fuel, while working on the “flight line” of the U.S.S. Iwo Jima. As such, the first two elements necessary to establish direct service connection have been demonstrated. Turning to critical element (3), evidence of a nexus between the in-service injury and the current disability, the only such evidence of record is favorable to the Veteran’s appeal. Specifically, the Veteran submitted a September 2020 opinion from a private physician who, after a review of the complete record and tele-health interview with the Veteran, opined that his in-service exposure to hazardous chemicals, including benzene in vapor and liquid form, was causative of his COPD. The Board finds this opinion to be highly probative of the matter at issue, as the private physician cited specific evidence from the Veteran’s file and medical literature supporting the conclusion reached. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board notes that the AOJ obtained a VA opinion addressing this matter in December 2018, and the VA examiner opined that the Veteran’s COPD was caused by his history of cigarette smoking rather than in-service exposure to asbestos. Nonetheless, this opinion does not rule out in-service causation via exposure to hazardous chemicals such as benzene, and the physician who provided the September 2020 opinion specifically stated that the Veteran’s prior tobacco usage was less likely to cause COPD than his extensive in-service exposure to hazardous chemicals. In sum, the Board concludes that the most probative evidence of record supports the Veteran’s assertion that his in-service exposure to hazardous chemicals resulted in the eventual development of COPD. In such case, the governing laws provide that service connection for this disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for PTSD, claimed as due to an in-service personal assault, is granted. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations and must be considered. More recently, Federal Circuit observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton, 12 Vet. App. at 280 (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal-assault cases). In Acevedo v. Shinseki, 25 Vet. App. 286 (2012), the Court held that hostile criminal actions, such as the harassment alleged by a Veteran, are also contemplated under the provisions of 38 C.F.R. § 3.304(f)(5). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). Analysis The Veteran claims that he has PTSD as a result of one or more in-service stressor events, to include witnessing several fellow service member die in a helicopter crash, witnessing the death of a separate soldier who was struck by a running helicopter blade, and abuse and harassment perpetrated by drill instructors while stationed at Parris Island in 1972. As will explained below, the Board concludes that the latter of these reported stressor events is the most meritorious to the Veteran’s appeal, and thus, the Board’s analysis will focus on the alleged personal assault. The Court has stressed the necessity of complete development of the evidence if a PTSD claim is based on an alleged personal assault. Patton v. West, 12 Vet. App. 272, 278-80 (1999). In the Patton case, the Court pointed out that there are special evidentiary development procedures for PTSD claims based on personal assault contained in VA ADJUDICATION PROCEDURE MANUAL M21-1, Part III, 5.14(c) (Feb. 20, 1996), and former M21-1, Part III, 7.46(c)(2) (Oct. 11, 1995). These M21-1 provisions require that in cases where available records do not provide objective or supportive evidence of the alleged in-service stressor, it is necessary to develop for this evidence. M21-1, Part III, 5.14(b) (2). As to personal-assault PTSD claims, more particularized requirements are established regarding the development of "alternative sources" of information, as service records may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. M21-1, Part III, 5.14(c). Further, the provisions of subparagraphs (7) and (8) indicate that "[b]ehavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor," "secondary evidence may need interpretation by a clinician, especially if it involves behavior changes", and that "[e]vidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician." The Veteran asserts that he endured physical beatings and verbal harassment from three named drill instructors while stationed at Parris Island in 1972. He claims that these offenses stemmed from the Veteran’s college attendance before being drafted into the Army and choosing to, instead, join the Marine Corps. He claims that these drill instructors verbally berated him, calling him “college boy” and derogatory names, and physically assaulted him on a daily basis, often to a state of unconsciousness. In March 2018, an AOJ employee concluded in an internal memorandum that the Veteran’s reported stressor incidents did not include enough detail for possible verification, and thus, the reported stressor “were NOT verified.” [Emphasis as in the original.] The Board acknowledges this document and the fact that it was “Signed by: people;” however, as the ultimate fact finder in the present matter, the Board notes that the AOJ’s actions in this respect are inadequate under the guidance provided by the M21 and the governing statutes, regulations, and precedential Court holdings in Patton, Menegassi, and Acevedo. In support of his appeal, the Veteran submitted a November 2018 Disability Benefits Questionnaire (DBQ) and accompanying nexus opinion completed by a private physician. These records reflect that, after a review of the complete record and interview with the Veteran, the private physician opined that the Veteran incurred PTSD as a direct result of the in-service physical abuse and verbal harassment perpetrated by his drill instructors while stationed at Parris Island in 1972. As rationale, the private clinician observed the Veteran’s reports of expecting psychiatric symptoms during and since active duty downstream from this hostile treatment. The Board observes that the Veteran’s service treatment and personnel records are devoid of specific markers to confirm the Veteran’s reported stressor. However, while a lack of verifying markers is a factor to be considered in determining the occurrence of an in-service stressor, the holdings in Patton and Menegassi clearly provide that the occurrence of a stressor event may additionally be adequately corroborated for the purpose of medical nexus by medical opinions from informed clinicians. In addition, the Veteran has consistently reported the same account of his in-service experiences, in both statements and testimony, and these were related to the November 2018 private physician, who used them as a basis for the provided opinions. Therefore, while the November 2018 private examiner’s opinion alone is not corroborative of the Veteran’s in-service assaults, it is, however, entitled to greater probative value in conjunction with the supporting statements and testimony of the Veteran that the Board has determined to be independently credible. Moreover, adding to the persuasiveness of these opinions, the physician provided rationale for each opinion, referencing pertinent evidence in the file, to include the Veteran’s lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). There are also no medical opinions of record addressing these crucial matters that are contrary to those of the private physician. While the reported personal assault is not noted in the Veteran’s service records, the medical and other evidence recounted above strongly suggests that the claimed in-service stressor occurred. Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). Further, because the PTSD diagnosis based on an in-service stressor has been offered, and because credible supporting evidence that the in-service stressor occurred has been offered, service connection for PTSD is warranted. 3. Entitlement to an effective date earlier than December 13, 2017, for the award of service connection for bilateral hearing loss is denied. The provisions governing the assignment of the effective dates are set forth in 38 C.F.R. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an initial evaluation and award of service connection based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Under 38 C.F.R. § 3.400 (b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015 – as is the case here. Because resolution of issues seeking earlier effective dates turns on matters of law, further assistance, such as the further procurement of records or VA examinations, would not assist the Veteran with the appealed issues. Consequently, no notice or development under the Veterans Claims Assistance Act of 2000 (the VCAA) is warranted with respect to these particular issues. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Analysis Initially, the Board notes that the Veteran’s private attorney stated at the July 2020 Board hearing that this appealed issue was initiated by the Veteran’s former representative, and neither the Veteran nor the attorney had any argument or theory of entitlement in furtherance of such. To this point, the Board notes that, similarly, the Veteran’s former representative did not assert any argument in support of this appeal. The record reflects that the Veteran filed several claims to establish service connection for various disabilities prior to December 13, 2017; however, bilateral hearing loss was no among the claimed disabilities. The Veteran does not contend, and the record does not show, that VA received any claim, formal or informal, from the Veteran or any party on his behalf to establish service connection for bilateral hearing loss prior to December 13, 2017. As an aside, the Board observes that the Veteran’s formal claim to establish service connection was received via electronic submission through VA’s evidence submission portal on December 13, 2017; however, there is an electronic date stamp on this document reflecting that the Veteran’s former representative sent this record to VA by facsimile on May 24, 2004. It appears that this electronic date stamp is the result of a malfunctioning and/or improperly operating facsimile machine owned by the Veteran’s former representative, as the cover page of the submission and the electronic date stamp from the VA portal both reflect that the document was created and sent to VA on December 13, 2017. As a final matter, the Board notes that entitlement to service connection for bilateral hearing loss did not initially arise until January 2018, which is the date of the VA audiological examination confirming elements (1) and (3) to establish direct service connection. To this point, it appears that the AOJ was generous with the assignment of December 13, 2017, as the effective date of the award of service connection for this disability, as entitlement to such arose more than one month after the Veteran’s filed his initial claim to establish service connection for the disability. Therefore, in light of the above, the Board concludes that an effective date prior to December 13, 2017, for the award of service connection for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the appeal seeking an earlier effective date, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to a compensable initial evaluation for service-connected bilateral hearing loss is remanded. At the July 2020 Board hearing, the Veteran asserted that his service-connected bilateral hearing loss has worsened since the completion of the most recent VA audiological examination in January 2018. In such situations, controlling VA laws provide that remand is necessary in order to provide the Veteran a contemporaneous VA examination to determine the current severity of this service-connected disability. 2. Entitlement to service connection for a heart disability, to include as secondary to a service-connected disability, is remanded. 3. Entitlement to service connection for a respiratory disorder other than COPD, claimed as due to in-service exposure to jet fuel or secondary to a service-connected disability, is remanded. The evidence of record reflects diagnoses of atrial fibrillation and bronchial asthma, and the Veteran asserts that the former is caused or aggravated by his service-connected COPD and the latter is the result of in-service exposures to hazardous chemicals, such as benzene. In light of the Board’s allowance of service-connected for COPD and the private September 2020 opinion which alludes to a causative relationship between jet fuel exposure and the development of respiratory disability other than bronchial asthma, the Board concludes that VA’s duty to assist the Veteran by obtaining medical nexus opinions regarding the etiology of these disabilities has been triggered. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertinent to the Veteran. 2. The AOJ must contact the Veteran and request that he complete a release for outstanding private treatment records pertinent to the disabilities subject to this remand. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for a VA audiological examination, to include pure tone audiometry testing and a controlled speech discrimination test using the Maryland CNC word list. Auditory thresholds in decibels, for the right and left ears, for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and speech recognition scores, for the right and left ears, using the Maryland CNC word list, must be provided. The examiner must provide findings as to the impact of the Veteran's bilateral hearing loss disability on his daily functioning. The claims folder must be made available for review by the examiner in conjunction with the examination. The examiner is also requested to comment on the impact of the Veteran’s service-connected bilateral hearing loss (alone and in concert with his other service-connected disabilities) on his employability. If the examiner finds that the testing results are unreliable or otherwise not valid for rating purposes, he/she must state the reasons for this conclusion, citing specific examples and testing results. To the extent possible, the examiner is requested to differentiate between the functional impairment associated with the Veteran's bilateral hearing loss disability as opposed to his tinnitus. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examination(s) to determine the nature and etiology of his claimed heart disability and respiratory disability other than COPD. The complete record, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. Any and all appropriate tests and studies should be performed and all clinical findings should be reported in detail. Based on a review of the evidence of record and an interview and examination of the Veteran, the examiner(s) should address the following: a. Identify all heart disabilities present during the pendency of the appeal. *If atrial fibrillation is not identified, this finding must be reconciled with the medical evidence of record reflecting this diagnosis. b. Identify all respiratory disabilities other than COPD present during the pendency of the appeal. *If bronchial asthma is not identified, this finding must be reconciled with the medical evidence of record reflecting this diagnosis. c. For each disability identified in parts (a) and (b), provide an opinion concerning whether such is proximately due to or the result of the Veteran’s service, to include the Veteran’s conceded in-service exposure to hazardous chemicals, to include jet fuel, benzene, and/or solvents. d. For each disability identified in parts (a) and (b), provide an opinion concerning whether such is caused by a service-connected disability. e. For each disability identified in parts (a) and (b), provide an opinion concerning whether such is aggravated by a service-connected disability. In providing the requested opinions, the examiner should cite to specific evidence supporting the conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must readjudicate the issues remaining on appeal. If any benefit is not granted to the fullest extent requested, the Veteran and his private attorney must be furnished with a copy of this readjudication and afforded an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel 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.