Citation NR: 9627975 Decision Date: 10/03/96 Archive Date: 10/15/96 DOCKET NO. 94-30 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for asbestosis. 4. Entitlement to service connection for hearing loss. 5. Entitlement to service connection for a bilateral eye disorder. 6. Entitlement to service connection for hypertension. 7. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: To be clarified ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran served on active duty from March 1972 to January 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 1992 and September 1993 rating decisions by the Department of Veterans Affairs (VA). The December 1992 rating decision, issued by the VA Regional Office (RO) in Atlanta, Georgia, denied entitlement to a permanent and total disability rating for pension purposes. The veteran’s claim file was subsequently transferred to the RO in Montgomery, Alabama. In a September 1993 rating decision, the Montgomery, Alabama RO denied entitlement to service connection for asthma, a low back disorder, asbestosis, hearing loss, a bilateral eye disorder and hypertension. REMAND I. General The RO sent the veteran’s file to the Board in March 1996. The veteran subsequently provided additional evidence directly to the Board in September 1996. See Memorandum from The American Legion, dated September 20, 1996. The veteran has not waived the RO’s consideration of this evidence. Therefore, in accordance with 38 C.F.R. § 20.1304(c) (1995), the case is remanded to the RO for consideration and the issuance of a supplemental statement of the case. The Board also points out that the additional evidence submitted by the veteran in 1996 indicates that he desires to appear at a personal hearing at the RO. Therefore, the RO should schedule him for such a hearing. Finally, the VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) of record identifies both The American Legion and the Alabama Department of Veterans Affairs in the space designated for the name of the service organization recognized as the representative. VA law precludes the prosecution of a claim on a claimant’s behalf by more than one representative at any one time. 38 U.S.C.A. § 7105(b)(2) (West 1991 & Supp. 1995); 38 C.F.R. § 20.601 (1995). Consequently, the veteran must clarify which organization he desires as his representative and the designated organization must be afforded an opportunity to review the file and present arguments on his behalf. II. Service connection claims In making a claim for service connection, the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995). A well grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation.” See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19 (1993). Service connection may be established for a current disability in several ways including on a “direct” basis. 38 U.S.C.A. § 1110, 1131 (West 1991 & Supp. 1995); 38 C.F.R. 3.303(a), 3.304 (1995). Direct service connection may be established when evidence shows that a particular injury or disease resulting in disability was incurred in service. 38 C.F.R. § 3.303(a) (1995). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1995). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1995). Service connection may also be established for a current disability on the basis of a “presumption” under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. § 1110, 1112 (West 1991 & Supp. 1995); 38 C.F.R. 3.303, 3.304, 3.307, 3.309(a) (1995). Service connection for a sensorineural hearing loss and hypertension may be established based on a legal “presumption” by showing that such disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1995); 38 C.F.R. § 3.307, 3.309 (1995). The three elements of a “well grounded” claim for direct service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991 & Supp. 1995); 38 C.F.R. § 3.303 (1995); Layno v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). To establish a well grounded claim, a claimant must submit evidence relevant to all elements of the claim or to all material facts involved in the claim. See Caluza v. Brown, 7 Vet.App. at 506 (1995); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990), quoting Black’s Law Dictionary, 881 (5th ed. 1979) (a material fact is one upon which the outcome of litigation depends). With respect to the veteran’s claim for service connection for hypertension, the Board notes that the service medical records contain elevated blood pressure readings after overindulging in alcohol in January 1973. However, the veteran’s blood pressure readings were essentially normal throughout the remainder of the service medical records, including on discharge examination in January 1979. The first post-service medical evidence of hypertension was contained in a VA report of hospitalization in 1992. Therefore, the evidence is unclear as to whether the veteran suffered from chronic, as opposed to acute elevated blood pressure, during service. An “acute” disorder is one having a short and relatively severe course, and a “chronic” disorder is one persisting over a long period of time. Dorland’s Illustrated Medical Dictionary 25, 333 (27th ed. 1988). In view of the foregoing, the Board concludes that the veteran should be afforded a VA examination in order to determine the date of onset of any current hypertension. With respect to the veteran’s claim for service connection for asbestosis, he reported that he was stationed aboard the U.S.S. Mount Whitney during active service, during which time he had to stand fire watch and smoke watch in the hole, sleeping compartment and engine room. He stated that the bulkheads and pipes were insulated with asbestos. See Statement of the veteran, received by the RO on July 2, 1993. Some of the major occupations involving asbestos exposure include construction work and demolition of old buildings. M21-1, Part VI, 7.68(b)(1), p. 7-XV-6 (September 21, 1992). There is a prevalence of asbestos-related disease among shipyard workers since asbestos was used extensively in military ship construction. The latency period may be of more than 45 years from very little exposure. M21-1, Part VI, 7.68(b)(2), p. 7-XV-7 (September 21, 1992). The radiographic changes indicative of asbestos exposure include interstitial pulmonary fibrosis (asbestosis), pleural effusions and fibrosis, or pleural plaques; granulomatous disease, atelectasis, or calcific changes are not included in this list of representative changes. M21-1, Part VI, 7.68(a)(1), p. 7-XV-6 (September 21, 1992). The veteran is currently shown to suffer from chronic obstructive pulmonary disease. See VA pulmonary consultation, dated March 28, 1994. Therefore, the Board concludes that he should be afforded a VA examination in order to determine the etiology of any current pulmonary disorder. With respect to the veteran’s claim for service connection for a low back disorder, the service medical records reveal the he complained of low back pain in February 1978; however, a low back disability was not diagnosed at any time during active service. The post-service medical evidence reveals that the veteran was diagnosed as having lumbosacral strain in March 1993 by Fred Yerby, M.D. The veteran reported that his back had bothered him since 1974 and that he had been treated at various places since that time, most recently at the VA Medical Center in Tuscaloosa, Alabama. Consequently, the RO should make arrangements to obtain the veteran’s complete medical records pertaining to any low back disorder since his discharge from service. The veteran should also be afforded a VA examination in order to determine the etiology of any current low back disorder. III. Permanent and total disability rating for pension purposes The veteran’s claim for pension is “well grounded” within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995). That is, he has presented a pension claim which is plausible. However, for the reasons that follow, it appears that the statutory duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a) has not yet been fully met. The Board notes that the veteran meets certain basic eligibility requirements for VA pension benefits. First, he served on active duty for a period of ninety consecutive days or more and such period began during a period of war. 38 U.S.C.A. §§ 101(11), (29); 1521(a), (j) (3) (West 1991 & Supp. 1995). Second, based on his own statements regarding his income or other assets, he appears eligible for pension under the statutory income and net worth criteria applied to VA pension benefits. 38 U.S.C.A. §§ 1521, 1522 (1991). Therefore, the issue in this case is whether the veteran is permanently and totally disabled for VA pension purposes within the meaning of governing law and regulations. 38 U.S.C.A. §§ 1155, 1502, 1521, (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.321(b)(2), 3.323(b)(1), 3.340(b); 3.342, 4.15, 4.16(a), 4.17, 4.17a, 4.18, 4.19, 4.25, 4.27 (1995). In Brown v. Derwinski, 2 Vet.App. 444 (1992), the United States Court of Veterans Appeals (Court) observed that permanent and total disability for pension purposes can be shown in two ways under VA regulations which provide a combination of “objective” and “subjective” standards. Brown, 2 Vet.App. at 446; Talley v. Derwinski, 2 Vet.App. 282 (1992); 38 U.S.C.A. § 1502(a)(1), (2) (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.321(b)(2); 4.17 (1995). The two ways that permanent and total disability can be shown under the law are as follows: (1) the veteran must be unemployable as a result of a lifetime disability (i.e., the “subjective” standard, which is based on disabilities, age, occupational background, and other related factors of the individual veteran whose claim is being adjudicated) or, even if not unemployable, (2) the veteran must suffer from a lifetime disability which would render it impossible for the average person with the same disability to follow a substantially gainful occupation (i.e., the “objective” standard, which is based on the percentage ratings assigned for each disability from the Schedule for Rating Disabilities, 38 C.F.R., Part 4; the minimum percentage rating requirements for total ratings based on unemployability in 38 C.F.R. § 4.16(a); and the permanence of those percentage ratings for pension purposes required by 38 C.F.R. § 4.17). 38 U.S.C.A. § 1502(a)(1), (2) (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.321(b)(2); 3.340(b); 3.342, 4.15, 4.16(a), 4.17, 4.18, 4.19 (1995); Brown, 2 Vet.App. at 446. In making a determination as to permanent and total disability for pension purposes, the RO must first apply the percentage standards of 38 C.F.R. § 4.16(a) and the other requirements of 38 C.F.R. § 4.17 (the objective standard). If a permanent and total disability rating is not warranted under the objective standard and the veteran is unemployable, the RO should refer the claim to the adjudication officer for consideration of entitlement to a permanent and total disability rating on an extra-schedular basis under 38 C.F.R. §§ 3.321(b)(2), 4.17(b) (the subjective standard). See Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992) (whether a permanent and total disability rating could have been assigned on an extra-schedular basis under 38 C.F.R. § 3.321(b)(2) should have been considered). It is important to note that, in applying the objective standard, the reductions in the minimum percentage requirements of 4.16(a) based on age were rescinded in an amendment to 38 C.F.R. § 4.17. 56 Fed. Reg. 57,985 (1991). In addition, the Board notes that in the course of adjudicating a claim for pension, the RO must also make determinations as to whether any of the disabilities in question are the result of the veteran’s willful misconduct. 38 U.S.C.A. § 1521(a) (West 1991 & Supp. 1995); 38 C.F.R. § 4.17a (1995). Finally, the Board observes that evaluations for service-connected disabilities may be combined with evaluations for disabilities not shown to be service connected and not the result of the veteran’s willful misconduct. 38 C.F.R. § 3.323(b)(2) (1995). In a June 1994 written statement, the veteran raised the issue of entitlement to service connection for post traumatic stress disorder (PTSD). In view of Harris v. Derwinski, 1 Vet.App. 180 (1991), the Board construes this issue to be “inextricably intertwined” with the issue of entitlement to a permanent and total rating for pension purposes. Therefore, it must be adjudicated by the RO prior to Board further review at this time. Moreover, a review of the claims folder reveals that the veteran has been either diagnosed as having or complained of numerous disabilities, including pulmonary tuberculosis, asthma, hypertension, alcoholic gastritis, chronic obstructive pulmonary disease, a psychiatric disorder, costochondritis, hypercalcemia, lumbosacral strain, an eye disorder and hearing loss. However, the RO has not assigned ratings for all of these disabilities in accordance with the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1995); Roberts, 2 Vet.App. at 390, citing 38 C.F.R. §§ 3.340(a), 4.15, 4.17 (1991) (before a determination can be made as to whether a total and permanent disability rating for pension purposes is warranted, “an evaluation must be performed under the Schedule for Rating Disabilities to determine the percentage of impairment caused by each disability.”). The Board also notes that the veteran’s complete medical records are not currently associated with the claims folder. It appears that he has been treated at the VA Medical Center in Tuscaloosa, Alabama through 1996 and at Grady Memorial Hospital. The veteran’s VA Medical records reportedly include an audiological examination dated in June 1993 and a report of hospitalization dated from September to October 1993. Consequently, the RO should make arrangements to obtain the veteran’s complete medical records as the duty to assist the veteran includes obtaining all medical evidence pertinent to his claim. See Littke v. Derwinski, 1 Vet.App. 90 (1990); Hyder v. Derwinski, 1 Vet.App. 221 (1991). The record also reflects that the veteran has been awarded Social Security Disability (SSA) benefits. It has been resolved in various cases, essentially, that although the SSA decisions are not controlling for VA purposes, they are pertinent to the adjudication of a claim for VA benefits, and that the VA has a duty to assist the veteran in gathering SSA records. Therefore, the RO should make arrangements to obtain all the records from the SSA that were used in considering his claim for disability benefits. See Collier v. Derwinski, 1 Vet.App. 413 (1991); Murincsak v. Derwinski, 2 Vet.App. 363 (1992); Masors v. Derwinski, 2 Vet.App. 181 (1992); and Brown v. Derwinski, 2 Vet.App. 444 (1992). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should inform the veteran that his current power of attorney is defective in that The American Legion and the Alabama Department of Veterans Affairs are both designated as representative. If he wishes representation, he must execute a power of attorney designating only one individual or organization as his representative. The RO should provide the veteran with the appropriate form and instructions necessary to designate a power of attorney, in compliance with 38 C.F.R. § 14.631 (1995). Only after the remainder of actions required on remand have been completed the claims folder should be referred to the designated representative for review and submission of additional arguments on the appealed issues. 2. Inasmuch as the veteran’s claim of entitlement to service connection for PTSD is deemed to be “inextricably intertwined” with the issue of a permanent and total disability evaluation for pension purposes, the RO should take appropriate development and adjudicative action. 3. The RO should schedule the veteran for a personal hearing. 4. The veteran should be asked to provide a list of those who have treated him for any disability since his discharge from service to present. The Board is particularly interested in any treatment received for a low back disorder and any treatment received at the Grady Memorial Hospital and at the Tuscaloosa, Alabama VA Medical Center, including, but not limited to, a report of audiological examination conducted in June 1993 and a hospitalization report dated from September to October 1993. The RO should obtain all records of any treatment reported by the veteran that are not already in the claims file and these records should be associated with the claims file. 5. The RO should make the necessary arrangements to obtain all the records from the SSA that were used in considering the veteran’s claim for disability benefits, including any reports of subsequent examinations or treatment. If these records are duplicates of those already on file, that fact should be annotated in the claims folder. Any other records should be associated with the claims folder. . 6. The veteran should be scheduled for a comprehensive VA general medical examination (and special examinations, if indicated) to determine the nature and extent of all of his disabilities. All appropriate tests and/or studies should be conducted in compliance with the Physician’s Guide for Disability Evaluation Examinations. The claims folder and a copy of this remand must be made available to and thoroughly reviewed by the examiner(s) prior to the examinations. The examination should provide a detailed account of the manifestations of all disabilities found to be present. Special attention should be given to the nature and extent of any psychiatric disorders (i.e., anxiety disorders, PTSD, personality disorders); pulmonary disorders (i.e., tuberculosis, chronic obstructive pulmonary disease, asthma, asbestosis or any other asbestos related pulmonary syndromes); cardiovascular disease (i.e., hypertension); musculoskeletal disorders (i.e., low back disorder, costochondritis); hypercalcemia; gastrointestinal disorders (i.e., alcoholic gastritis); eye disorders (i.e., refractive error); and ear disorders (i.e., hearing loss). All orthopedic abnormalities, including complaints of pain and limitation of motion should also be reported. In the event that a psychiatric disorder is diagnosed, the psychiatric examiner should provide a multiaxial diagnosis, to include a Global Assessment of Functioning Code. The examiner(s) must express opinions as to the degree of interference with the veteran’s ability to obtain and maintain gainful employment caused by each disability identified on examination. The examiner(s) should also state whether the veteran’s disabling conditions are susceptible to improvement through appropriate treatment. Concerning hypertension, the examiner must render an opinion as to the date of onset of any current hypertension. Specifically, the examiner should render an opinion as to the probability that any current hypertension was initially manifest during the veteran’s active service, as evidenced by his elevated blood pressure readings after overindulging in alcohol in January 1973. Concerning asbestosis, the examiner must render an opinion as to the etiology of any current pulmonary disorder. Specifically, the examiner should render an opinion as to the probability that any current pulmonary disorder was caused by exposure to asbestos during the veteran’s active service. Concerning a low back disorder, the examiner must render an opinion as to the date of onset of any current low back disorder. Specifically, the examiner should render an opinion as to the probability that any current low back disorder was initially manifest during the veteran’s active service, as evidenced by his complaints of low back pain in February 1978. A complete rationale should be given for all opinions and conclusions expressed. 7. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the examination reports do not include fully detailed descriptions of pathology or adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (1995) (“if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 8. Thereafter, the RO should readjudicate the veteran’s claims. Concerning the claim of entitlement to a permanent and total disability rating for pension purposes, the RO must comply with the following instructions: a. The RO must list all of the veteran’s disabilities on a formal rating document and assign separate evaluations to each disability. The RO’s attention is directed to the list of disabilities provided in paragraph 6 of this Remand. If applicable, a determination should be made, and adequate rationale should be provided, as to whether any of the disabilities are the result of the veteran’s willful misconduct. b. The issue of entitlement to pension benefits should then be considered under the two-prong test enunciated by the Court in Talley v. Derwinski, 2 Vet.App. 282 (1992); Robert v. Derwinski, 2 Vet.App. 387 (1992); and Brown v. Derwinski, 2 Vet.App. 444 (1992). In other words, the RO must consider the “objective” and the “subjective” standards, including 38 C.F.R. Part 3, § 3.321 and Part 4, §§ 4.15, 4.16, and 4.17 (1995). The appellant is free to furnish additional evidence while his case is in remand status. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). Once the foregoing has been accomplished and, if the veteran remains dissatisfied with the outcome of the adjudication of his claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. KENNETH R. ANDREWS. JR. Member, Board of Veterans’ Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1995), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1995). - 2 -