Citation Nr: 21027772 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-20 236 DATE: May 6, 2021 REMANDED The issue of service connection for a respiratory condition, to include asbestosis, is remanded. The issue of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The issue of service connection for face and neck scars is remanded. REASONS FOR REMAND The Veteran had active service from September 1979 to September 1983. In December 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a discussion with the Veteran toward substantiating the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In January 2020, the Board of Veterans' Appeals (Board) denied service connection for asbestosis and the Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). Pursuant to a January 2021 Joint Motion for Partial Remand (JMPR), the Court remanded the claim and directed the Board to obtain a VA examination to determine whether the Veteran currently has any respiratory disorder(s), including asbestosis, related to service. As outlined below, the Board will remand the claim to schedule an examination consistent with the parties' JMPR. The January 2020 Board decision also remanded the issues of service connection for PTSD and scars and directed the VA Regional Office (RO) to attempt to corroborate the Veteran's claimed stressor event. As outlined below, the Board will remand those claims for additional development. Although VA has not corroborated the Veteran's PTSD stressor, the medical evidence indicates that the Veteran may have other psychiatric disorders related to service. The Board will broaden the claim to include service connection for an acquired psychiatric disorder, generally. See Clemons v. Shinseki, 23 Vet. App. 1, 6, (2009). 1. The issue of service connection for a respiratory disorder, to include asbestosis, is remanded. 2. The issue of service connection for an acquired psychiatric disorder, to include PTSD, is remanded. 3. The issue of service connection for face and neck scars is remanded. The matters are REMANDED for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran's service treatment records (STRs) and service personnel records are unavailable, and VA has a heightened duty to assist. The issue of service connection for a respiratory disorder, including asbestosis, is remanded for a VA examination in accordance with the parties' January 2021 JMPR. With respect to PTSD, the RO attempted to verify the Veteran's claimed stressor event by contacting the Philadelphia Sheriff's Office in February and March of 2020 but did not receive a response. After those attempts, the Veteran provided a docket number for the assault case (04273011982) and the full, correctly spelled name of one of his assailants ("Robert J. Delissio"). The RO did not conduct any further development after receiving this new information. Thus, remand is necessary to make a final attempt to locate court and/or law enforcement records related to the Veteran's claimed stressor. Even if VA is unable to corroborate the Veteran's stressor, remand is necessary to obtain a VA examination addressing whether the Veteran has an acquired psychiatric disorder (other than PTSD) that is related to active service. The Veteran's claim for service connection for face and neck scars is also remanded because it is inextricably intertwined with the claim for an acquired psychiatric disorder. 2. REMAND DIRECTIVES: a. REQUEST SOCIAL SECURITY ADMINISTRATION (SSA) RECORDS Contact the SSA and request that it provide all documentation and records related to the Veteran's application for award of disability benefits. b. REQUEST RECORDS RE: 1981 ASSAULT Contact the Philadelphia Sheriff's Office and the Pennsylvania Court System to make a final attempt to obtain court and/or law enforcement records related to the Veteran's May 1981 assault. Please note that the Veteran provided a docket number of 04273011982 (or 042730111982) for the criminal case; one of the assailants was "Robert J. Delissio"; and the assault is alleged to have occurred on May 15, 1981 in Kensington, Philadelphia County, Pennsylvania. See "Correspondence," received March 28, 2020; and May 26, 2020. All attempts should be recorded and associated with the Veteran's file. The RO is requested to obtain a positive or negative response whether records related to the criminal case (docket number 04273011982 or 042730111982) exist. If the RO receives a negative response or finds, after reasonable efforts, further attempts to locate the information would be futile, so annotate the record. b. RESPIRATORY DISORDER: Schedule the Veteran for a VA examination with an appropriately qualified PHYSICIAN to determine the nature and cause of the Veteran's current respiratory condition(s). All relevant medical records must be made available to the examiner for review of pertinent documents. The report should specifically state that such a review was conducted. The examiner must give a comprehensive explanation for all opinions provided. The examiner must provide the following opinion(s): (i) Does the Veteran currently have any respiratory condition, including asbestosis; and (ii) If so, were the Veteran's current respiratory conditions caused by exposure to asbestosis during active service, or otherwise related to an injury, disease, or event that occurred during active service? (iii) Given the medical evidence in this case, your experience and knowledge and the state of medical science, is the Veteran's account of the development of his respiratory condition consistent with the clinical findings? Please fully explain your opinion. In addition to reviewing the entire file, the examiner is requested to review the following: *May 2013 VA pulmonary note where Veteran sought treatment for a respiratory condition and reported one year of asbestos exposure in 1981 while working at a shipyard. He also reported he was a former smoker. See "CAPRI," received December 18, 2015, at pages 1, 3-8. *May 2013 Pulmonary Function Testing (PFT) where Veteran reported a smoking history of 15 pack years and working as a maintenance mechanic for 30 years. The attending physician diagnosed the Veteran with "chronic airway obstruction." See Id. at pages 6-8. *May 2015 VA pulmonary note where a VA physician noted the Veteran's one year of asbestos exposure in 1981. The physician opined the Veteran's asbestosis was likely caused by military service, but did not explain this opinion or indicate how or when the Veteran was diagnosed with asbestosis. See Id. at page 2 of 8. *December 2015 statement where Veteran reported being exposed to asbestos and "asbestos dust" in service when he cut open and repaired pipes and bulkheads that were insulated with asbestos. He reported he had a cough while on active duty that recently worsened. He indicated a doctor diagnosed him with asbestosis. See "VA Form 21-4138 Statement in Support of Claim," received December 4, 2015. *November 2016 statement where Veteran continued to report that he was exposed to asbestos at a naval shipyard in 1981 and had breathing problems since that time. He reported he was treated for asbestosis at a VA medical center (VAMC) in May 2013. *May 2017 VA Respiratory Conditions Examination, where Veteran reported an intermittent cough and shortness of breath in the past four to five years. The Veteran reported a history of asbestos exposure during active service and working as a welder after service until 2008. He also reported smoking less than one pack of cigarettes per day, "on and off' for 20 years until quitting in 1997. The VA examiner noted the Veteran's military occupational specialty (MOS) of "hull technician" carries a high probability of asbestos exposure. However, the examiner reviewed chest X-rays from December 2016 and April 2013 and concluded the Veteran did not have a current diagnosis of asbestosis. However, PFT conducted in May 2017 revealed a "mild restrictive ventilatory defect." See "C&P Exam," received May 8, 2017. *December 2019 hearing where Veteran reported regular exposure to asbestos in "blankets" and piping of naval vessels he worked in during active service. The Veteran stated a physician told him he had asbestos nodules in his lungs that were not active or cancerous. However, the Veteran reported that he was not diagnosed with any respiratory condition at that time. See "Hearing Transcript," received December 13, 2019, at pages 3 to 8 of 33. c. ACQUIRED PSYCHIATRIC DISORDER: AFTER CONDUCTING THE DEVELOPMENT ABOVE, schedule the Veteran for an examination with a VA PSYCHOLOGIST OR PSYCHIATRIST to determine the nature and cause of the Veteran's psychiatric disorder(s). The electronic claims file must be made available to the psychologist/psychiatrist for review prior to examination. All indicated tests and studies should be performed and the clinical findings should be reported in detail. The psychologist/psychiatrist is requested to give the following opinion(s): (i) Did the Veteran sustain a personal assault during his military service? If so, please state the SPECIFIC FINDING AS TO WHETHER THE EVIDENCE INDICATES THAT A PERSONAL ASSAULT OCCURRED. (ii) If so, does the Veteran have PTSD or any other psychiatric disorder as a result of the personal assault? (iii) If not, does the Veteran have any other mental disorder, to include but not limited to anxiety, an adjustment disorder and/or a depressive disorder, that was caused by military service? (iv) Given the medical evidence in this case, your experience and knowledge and the state of medical science, is the Veteran's account of the development of his psychiatric disorders consistent with the clinical findings? Please fully explain your opinion. Although the examiner must review all the evidence, the Board calls the examiner's attention to the following: *The Veteran's lay statements that he was personally assaulted during active service in May 1981. He reports that six men broke into his girlfriend's apartment and stabbed him repeatedly with knives and broken bottles. The Veteran reports that he still has scars on his face and neck from the assault. See "Hearing Transcript," received December 13, 2019 at pages 19-23; see also VA 21-4138 Statements in Support of Claim received March 11, 2019, June 10, 2017, November 25, 2016, December 18, 2015; "Correspondence," received November 25, 2016. *VA treatment records indicating negative PTSD screens in September 2011, April 2013, and January 2015. See "CAPRI" received January 4, 2016, at pages 337, 281, and 100 of 338. *April 2015 psychotherapy notes indicating the Veteran had a history of depression and anxiety connected to a 2008 back injury that caused him to lose his job. The Veteran reported seeing a psychiatrist in the Navy after being assaulted in 1981. He also reported that prior to service, he was involved in a severe motor vehicle accident that caused the death of his friend and fellow passenger. The VA social worker noted a "constellation of traumatic episodes with significant current stressors related to loss of work, disability, and chronic pain." See Id. at pages 83, 87 of 338. *October 2015 psychotherapy notes indicating diagnoses of chronic PTSD and major depression, recurrent. See Id. at page 37 of 338. See "Medical Treatment Record Government Facility," received October 22, 2015. *October 2015 medical opinion by A. DeSilva, LCSW-R, ACSW-R, stating that the Veteran had the "classic cluster" of PTSD symptoms due to an in-service personal assault. All indicated tests and studies must be performed. The psychologist/psychiatrist must provide a diagnosis for each psychiatric disability found. This must include specific findings as to whether the Veteran has, or at any time during this appeal had a diagnosis of PTSD. For each diagnosis, the psychologist/psychiatrist must provide an opinion as to whether the psychiatric disability onset during service due to any event or incident incurred therein. If the psychologist/psychiatrist diagnoses the Veteran with PTSD, he or she must specify the stressor or stressors underlying the diagnosis. To the extent that the Veteran's claimed stressor is related to an in-service personal assault, the psychologist/psychiatrist must offer opinion as to whether the evidence of record indicates that a personal assault occurred. A thorough explanation must be provided for the opinion rendered. If the psychologist/psychiatrist cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. After completing the above development and any other development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision in this case is binding only with respect to the matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.