Citation Nr: 1306465 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-16 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a lung disability, to include as due to exposure to asbestos in service. 2. Entitlement to service connection for residuals of a fractured left arm. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran performed active naval service from May 1950 to March 1954. This appeal to the Board of Veterans' Appeals (Board) is from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. When this case was most recently before the Board in June 2012, it was decided in part and remanded in part. The issue of entitlement to service connection for a lung disability is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. At entry into active naval service, the Veteran's left arm was examined and found to be normal. 2. Residuals of a fracture of the left arm were present in service. 3. The evidence does not clearly and unmistakably establish that the fracture residuals did not permanently increase in severity as a result of active service. CONCLUSION OF LAW Residuals of a left elbow fracture were incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303. 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Veterans are presumed to be in sound medical condition at the time of entry into service except for defects actually noted when examined for entry into service. This presumption of soundness can be rebutted by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304; see also VAOPGCPREC 3-2003 (July 16, 2003). Factual Background and Analysis The Veteran reports that he fractured his left elbow during childhood which required surgical repair, but that this pre-existing disability was aggravated by an injury during active service. His service treatment records (STRs) reflect that at entry into active naval service in May 1950, he completed a report of medical history questionnaire and reported that he had broken his arm 12-years earlier and had been hospitalized for that injury. The report of examination onto active duty in May 1950 shows that all extremities were found to be normal; however, a scar over the backside of the left elbow was noted. The Veteran's March 1954 separation examination report reflects that all extremities were normal. No left elbow complaint was noted during active service. The Veteran submitted a claim for service connection in November 2007 and mentioned that a broken arm was aggravated by active service. A July 2009 VA orthopedic compensation examination report reflects that the Veteran reported a childhood left elbow fracture with surgical repair. He stated that he re-injured the left elbow during active service when he fell on it and lacerated it. The examiner detected a large deformity over the left elbow joint and observed a length-wise scar over the left elbow that was 10-cm long. The assessments were old fracture of left elbow as a child, with deformity; and, laceration of left elbow with scar. X-rays showed old fracture, severe osteoarthritis, and olecrannon enthesophyte. The physician dissociated any current finding from active service, and instead found them related to the childhood fracture. In March 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge that during active service he fell and dislocated the left arm and received treatment aboard ship for that injury. In its April 2011 remand, the Board requested that a physician determine whether a left elbow disability clearly and unmistakably existed prior to active service and, if so, whether any pre-existing disability clearly and unmistakably underwent no permanent increase in severity as a result of active service. A June 2011 VA orthopedic compensation examination report reflects that the physician dissociated post-traumatic arthritis of the left elbow from active service on the basis that there was no documented injury during active service with which to attribute any aggravation of a childhood fracture. In June 2012, the Board remanded the claim for another examination and asked the examiner to address whether there is clear and unmistakable evidence of the pre-existence of the left elbow disability. Then, if appropriate, the examiner was asked to address whether there is clear and unmistakable evidence of no aggravation during active service. A July 2012 VA examination report and disability benefits questionnaire reflects that the physician was convinced that the Veteran had fractured the left elbow in childhood. The physician was unconvinced that the left elbow was re-injured during active service based on the absence of clinical documentation of that fact. The physician did not attempt to offer any clear and unmistakable evidence showing that the elbow was not aggravated during active service, however. The presumption of soundness applies in this case because the Veteran's left arm was found to be normal on the examination for entry onto active duty. Although the Veteran acknowledges that he fractured the arm prior to service, he contends that the fracture was aggravated as a result of an injury in service. The medical evidence shows that he currently has significant residuals of the pre-service fracture. The evidence does not clearly and unmistakably establish that the disability was not permanently aggravated by the Veteran's active service. Therefore, the presumption of soundness has not been rebutted, and the Veteran is entitled to service connection for the residuals of the fracture. ORDER Service connection for residuals of a fractured left arm is granted. REMAND In its April 2011 remand, the Board conceded the Veteran's exposure to asbestos while in active service and requested an examination to determine the nature and etiology of any lung disability. A May 2011 VA respiratory diseases examination report contains two lung-related diagnoses: (1) asbestos exposure with bilateral pulmonary nodules; and, (2) chronic obstructive lung disease. The examiner opined that: (1) the Veteran had bilateral pulmonary nodules which were nonspecific for asbestos and other lung diseases and exposures; (2) hyperinflation would be related to obstructive lung disease, not asbestos; and, (3) pulmonary nodules were unlikely to be caused by exposure to asbestos. No etiology of chronic obstructive pulmonary disease was offered. In June 2012, the Board remanded the claim for another examination and etiology opinion. The examiner was clearly asked to address the etiology of each lung disorder found. In July 2012, a VA compensation examiner completed a disability benefits questionnaire concerning the claimed respiratory disability and indicated that, after the claims file and pertinent medical records were reviewed, the Veteran did not have, nor did he ever have, a diagnosis of a respiratory condition. In rather stark contrast to this finding, however, the examiner then discussed facts that controvert that conclusion. The July 2012 VA examiner noted that a January 2010 pulmonary function test result is consistent with COPD. The physician then concluded that the Veteran likely has chronic obstructive pulmonary disease and bronchitis for which he should seek treatment. Although the Veteran likely has chronic obstructive pulmonary disease and bronchitis, the July 2012 physician did not offer an opinion concerning their etiology, but did dissociate these from asbestos exposure. While service connection via asbestosis is not indicated, other pertinent legal theories must be considered. See Douglas v Derwinski, 2 Vet. App. 435 (1992). Because the examiner failed to supply an etiology opinion, the report is insufficient for adjudication purposes and must be returned to the examiner for clarification. 38 C.F.R. § 4.2 (2012). Bierman v. Brown, 6 Vet. App. 125, 129 (1994). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should arrange for the claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder to be provided to the July 2012 examiner. The physician should be asked to review the pertinent medical history, note that review in the report, and prepare an addendum report. In an addendum report, the physician should provide an opinion with respect to the Veteran's chronic pulmonary disease and bronchitis as to whether there is a 50 percent or better probability with respect to each disorder that the disorder is related to the Veteran's active service. The rationale for all opinions expressed must also be provided. If the July 2012 examiner is unavailable, the claims folder and any pertinent evidence in Virtual VA that is not contained in the claims folder should be provided to another physician with appropriate expertise who should be requested to provide the required opinions with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 2. The RO or the AMC should also undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond thereto before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs