Citation Nr: 1825817	
Decision Date: 04/27/18    Archive Date: 05/07/18

DOCKET NO.  14-34 785A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), for purposes of accrued benefits.  

2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), for purposes of accrued benefits.  


REPRESENTATION

Appellant represented by:	South Carolina Office of Veterans Affairs


ATTORNEY FOR THE BOARD

C. O'Donnell, Associate Counsel


INTRODUCTION

The Veteran had active military service from May 1964 to August 1972.  The Veteran died in August 2013 and the Appellant is the Veteran's surviving spouse.  She has been properly substituted in this appeal.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Colombia, South Carolina.

In her October 2014 substantive appeal, the appellant requested a hearing before the Board.  However, she cancelled her request in a November 2017 letter.  Thus, the hearing request is deemed withdrawn.  

The Board has recharacterized the issue of service connection for a PTSD as a service connection for an acquired psychiatric disorder, to include PTSD.  See Clemons v Shinseki, 23 Vet App 1, 5-6, 8  (2009).  

The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The Veteran's chronic obstructive pulmonary disease is not related to his period of active military service.  



CONCLUSION OF LAW

The criteria for the establishment of service connection for chronic obstructive pulmonary disease have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service.  38 U.S.C. §§ 1110, 1131.  

To establish service connection, "the veteran must show: (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).  The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); but see Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).  

The Appellant contends that the Veteran's diagnosed COPD can be attributed to the Veteran's period of active duty service.

The Veteran's service treatment records reveal no complaint, treatment, or diagnosis of a respiratory condition during active duty service.  In fact, in the Veteran's July 1972 report of medical history, the Veteran did not report any respiratory issues.  Further, a clinical evaluation at the time revealed that his lungs and chest were normal.

In December 2012, the Veteran was afforded a VA examination to assess the nature and etiology of any respiratory condition present.  The examiner reported that the Veteran had COPD.  The Veteran indicated that he had difficulties breathing since approximately 2010.  The Veteran reported that he had begun smoking cigarettes at approximately 10 years of age and that he quit in January 2011.  The examiner indicated that the Veteran was not exposed to asbestos during service, as his military occupations were not of the sort to result in such exposure.  

The examiner opined that the Veteran's COPD was less likely than not related to service.  In his rationale, the examiner indicated that the Veteran had no significant occupational exposures during service, and that he specifically denied exposure to asbestos.  The examiner noted that the Veteran had one of the most extensive histories of smoking that he had encountered, noting that the Veteran regularly smoked upwards of three packs of cigarettes a day from the age of 10 until the age of 64.  Thus, the examiner opined that the Veteran's COPD was far more likely due to his tobacco consumption than to his period of active service.  

The Board has considered the lay evidence of record.  The Veteran, and now the Appellant, asserts that the Veteran's COPD is a result of his service.  However, the neither the Veteran nor the appellant are competent to attribute the respiratory symptoms experienced by the Veteran prior to his death to in-service events that occurred many years ago. This particular inquiry is within the province of training medical professionals because it goes beyond a simple and immediately observable cause-and-effect relationship.

In this case, the Board finds the most probative evidence weighs against the claim. The first complaints and objective evidence of the claimed disability occurred many years after service.  To that end, the Veteran reported that he did not have difficulty breathing until 2010.  Moreover, the record does not document any treatment until decades after the Veteran's separation from service.  The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  Maxson v. Gober, 230 F.3d 1330, 1333  (Fed. Cir. 2000).  Further, the December 2012 VA examiner opined against the claim and provided sufficient rationale.

The Board is grateful for the Veteran's honorable service.   However, given the record before it, the Board determines that the evidence in this case does not reach the level of equipoise.  See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009).  Accordingly, service connection for COPD, for purposes of accrued benefits, is denied.


ORDER

Entitlement to service connection for chronic obstructive pulmonary disorder, for purposes of accrued benefits, is denied.


REMAND

The Board finds that additional development is required before the remaining claim on appeal is decided.  

The Veteran was afforded a VA mental health examination in October 2012.  With regard to PTSD, the examiner found that the Veteran met criterion A, in that the Veteran was exposed to a traumatic event in service that involved actual or threatened death or serious injury, and the Veteran's response involved intense fear, helplessness, or horror.  In other words, the examiner opined that the Veteran's in-service stressor was sufficiently severe to cause PTSD.  The examiner further found that the Veteran met each criterion for a diagnosis of PTSD with the exception of criterion B.  In this regard, the examiner noted that the Veteran did not persistently re-experience the traumatic event, which is needed for a PTSD diagnosis under DSM-IV.

The Board must remand the acquired psychiatric disability claim due to amendments to VA regulations which removed references to DSM-IV and replaced them with references to the Fifth Edition of the same treatise (DSM-5). The DSM-5 criteria apply to claims certified for appeal to the Board on or after August 4, 2014.  See 80 Fed. Reg. 14308, 14309 (March 19, 2015).  The Board notes that the Veteran's claim was certified to the Board in November 2014.  Although the October 2012 VA examiner thoroughly explained his application of the DSM-IV criteria, his report is not tailored to address whether the Veteran would qualify for a mental disorder diagnosis under DSM-5.

For these reasons, the issue of service connection for an acquired psychiatric disorder, to include PTSD, must be remanded for a supplemental opinion which applies the legally relevant criteria to the Veteran's psychiatric symptoms.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should ask the Appellant to identify the provider(s) of any and all evaluations and/or treatment the Veteran had received during his lifetime for his mental health and to provide authorizations for VA to obtain for the record complete clinical records of all pertinent evaluations or treatment (records of which are not already associated with the record) from the providers identified.  If any records sought are unavailable, the reason for their unavailability must be noted in the record.  If a private provider does not respond to the AOJ's request identified records sought, the Appellant must be so notified, and reminded that ultimately it is her responsibility to ensure that private treatment record are received.

2.  After instruction (1) is completed, the AOJ should arrange for a supplemental medical opinion by an appropriate psychologist or psychiatrist to determine the nature and cause of any acquired psychiatric disorder, to include PTSD, that the Veteran was found to have at the time of his death.  The claims file is to be made available to the examiner for review of the Veteran's pertinent medical history.  The examiner should respond to the following:

a.  Based on a review of the record, and the particulars of the Veteran's medical history, did the Veteran meet the criteria for a diagnosis of PTSD as defined by the American Psychiatric Association's DSM-5? 

b.  If the Veteran did meet the criteria for a diagnosis of PTSD in accordance with DSM-5, is it at least as likely as not (a 50 percent or greater probability) that the diagnosis of PTSD can be causally linked to the Veteran's in-service stressors based on the events related to his fear of hostile military or terrorist activity while serving in country in the Republic of Vietnam?

c.  If the diagnosis of PTSD is deemed to be unrelated to the Veteran's active duty service, the examiner should, if possible, identify the cause considered more likely and explain what this so.

d.  Based on the review of the record, and the particular of the Veteran's medical history, did the Veteran meet the criteria for a diagnosis of any mental disorder (other than PTSD) as defined by the American Psychiatric Association's DSM-5?

e.  If the Veteran did meet the criteria for a diagnosis of any mental disorder (other than PTSD) in accordance with DSM-5, for each mental disorder entity diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such disorder began in (or is otherwise related to) the Veteran's active duty service?  In responding, the examiner is asked to consider and discuss the Veteran's in-service stressors based on the events related to his fear of hostile military or terrorist activity while serving in country in the Republic of Vietnam?

f.  If the diagnosis of any mental disorder (other than PTSD) found and is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain what this so.

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report.  The examiner should discuss the particulars of the Veteran's medical history and the relevant medical sciences as applicable to this case, which may reasonably make clear the medical guidance in the study of this case.

4. Then, the AOJ should review the record, conduct any additional development deemed warranted, and readjudicate the issue of service connection for an acquired psychiatric disorder, to include PTSD.  If benefit sought on appeal remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Appellant and her representative the opportunity to respond.  The case should then be returned to the Board for further review.

The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs



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