Citation Nr: 1512561 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 09-43 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a lung disorder, to include as a result of exposure to Napalm and/or Agent Orange. 2. Entitlement to service connection for a heart disability (other than coronary artery disease), to include as due to his lung disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to December 1970. The Veteran served in the Republic of Vietnam, and earned the Combat Infantry Badge, among other awards. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. On the Veteran's October 2009 substantive appeal, he requested a hearing before a Board member at the local regional office. He subsequently withdrew this request in December 2009. In an August 2012 letter, the Veteran's representative requested the opportunity to testify before the Board. This request was later withdrawn, as the Veteran indicated he was unable to travel for a hearing due to health constraints. In sum, it is concluded that the Veteran has withdrawn his requests to testify before the Board. 38 C.F.R. § 20.704. This appeal was previously before the Board in March and November 2013. In March 2013, the Board remanded the claim so that the Veteran could be scheduled for a VA examination. In November 2013, the Board denied the Veteran's claims. Following the Board's denial of these claims in the November 2013 decision, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which, in October 2014, through a Joint Motion for Remand, vacated the Boards decision and remanded the matter back to the Board for additional development. In a March 2011 rating decision, the Veteran was granted entitlement to service connection for non-obstructive coronary artery disease associated with herbicide exposure. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he incurred a lung disorder in service, secondary to exposure to Napalm and/or Agent Orange. Specifically, in a July 2007 letter he stated that he developed a cough and fever after going into an area that had been recently exposed to Napalm. He reported staying in the area where the Napalm was used for a few hours, despite heavy smoke and difficulty breathing. After this longer exposure, the Veteran developed a fever and was helicoptered to a field hospital. He stated that they thought it may have been malaria, but that he was not sure if he was ever diagnosed with anything during treatment. "I do know that I coughed all the time I was there. They asked me about that but I told them it was probably because of the smoke from the Napalm. I still have problems breathing and still cough a lot." The Veteran argues that he developed his heart disability as a result of his cough and difficulty breathing. The Board notes again, that the Veteran is already service-connected for coronary artery disease. Service treatment records include a January 1970 admission for four days for a fever of unknown origin. The note continues: "benign, no fever after first day." He was given light duty for a week and told to return if his fever returned. There are no other records of a fever, and no records of complaints of a cough or other respiratory symptoms. A February 2009 VA treatment record noted the Veteran's history of difficulty breathing for 40 years, leading to increased blood pressure and an enlarged heart. He reported his chronic cough began in service in Vietnam. He stated that his cough started after service in areas that he been Napalm bombed. He had a history of working in army ammunitions for six months prior to Army deployment and then worked there for more than 40 years after service. He was exposed to "various chemicals, beryllium, dust, powders and explosives" without protective equipment. He also has asbestos exposure at work. He reported coughing during the weekends away from work, as well as during the work week. A February 2008 CT showed small calcified granulomas but no compelling evidence of interstitial lung disease. Although he was exposed beryllium in the past, "there was no evidence of chronic interstitial pneumonitis that would be expected with berylliosis." The VA treatment provider could not exclude some degree of airway inflammation, like may be seen with sarcoidosis." A December 2010 VA treatment record noted his chronic cough "has been thoroughly worked up, but no one has been able to determine why he has been coughing for 40 years. None of the exhaustive testing of his respiratory tract by allergist, ENT, pulmonology cardiology or GI has produced any positive test results to explain why he has a cough." A June 2009 methacholine challenge test ruled out asthma as a cause of the Veteran's cough. "Doubt we will be able to ameliorate his cough much given the multiple modalities have been tried in the past without improvement (Albuterol MDI, Asmanex MDI, allergy testing, PPI at single and double dosing and sinusitis management, to name a few). In order to determine whether the Veteran has lung and heart disorders, other than coronary artery disease, that may be related to military service, a VA examination was conducted in June 2012. The Veteran was diagnosed with restrictive lung disease. The examiner noted that there were many potential etiologies, including obstructive sleep apnea with pulmonary hypertension and berylliosis (noted in February 2009 above to be less likely given there was no interstitial pneumonitis). The examiner provided a negative nexus opinion, stating that there was no evidence that Napalm causes chronic cough or mild restrictive disease. The examiner also noted that VA pulmonary consultation had found no clear etiology for the Veteran's restrictive disease. The Board remanded the claims in March 2013 because the examiner did not address the Veteran's statement that he had coughed for almost 40 years (since service), and the examiner did not offer an opinion regarding a relationship between his restrictive lung disease and service/Agent Orange exposure. The March 2013 Board remand also found the heart opinion was inadequate. The June 2012 examiner noted that the Veteran had an enlarged right atrium. The examiner noted that in 2007 the Veteran was noted to have a mildly enlarged right ventricle, but that a chest CT in 2008 only found an enlarged right atrium. The examiner noted that the etiology of the enlarged heart was multifactorial and included "sleep apnea and restrictive lung disease." The examiner then noted that his restrictive lung disease was possibly due to berylliosis (from the Veteran's employment at a munitions plant), which had been noted as unlikely by a VA pulmonologist in February 2009. After the March 2013 Board remand, the Veteran's claims file was returned to the June 2012 examiner for additional opinions. The examiner found that there was no literature to support that the Veteran's "service nor conditions of service as the etiology of [his] restrictive lung disease, nor the right atrial and right ventricular enlargement." The examiner noted the earliest treatment record where the Veteran complained of shortness of breath was from April 2007, where the Veteran reported that it was related to his clogged nose. The examiner found that there were no records regarding respiratory conditions in service. She found that "the conditions cannot at this time, with current medical knowledge, be associated with any conditions of service, including but not limited to Agent Orange." The examiner noted that he had an extensive workup regarding his cough with no resolution. There was a questionable diagnosis of chronic refractory cough. His restrictive disease was confirmed on multiple PFTs. His "enlarged right atrium and ventricle have been attributed to either or both his restrictive lung disease and/or his untreated sleep apnea. His cough very likely has an etiology different than his restrictive disease." She noted that it was difficult to place when the Veteran's cough began, other than the Veteran stating it was long-standing. The acute febrile illness in service included symptoms of a high fever and headache for which he was hospitalized, but "there are no records of this, nor does he recall respiratory symptoms with this acute illness." Given his lack of respiratory symptoms in service, it is "overwhelmingly unlikely" that this illness was responsible for his current cough and/or restrictive lung disease. The JMR found that the May 2013 opinions were inadequate. Although the VA examiner noted that the Veteran could not recall respiratory symptoms during his treatment for a fever in service, the JMR pointed out that in July 2007 he reported having a cough for 38 years, and that he coughed "all the time" in service. The examiner also noted there were no in-service records of treatment for respiratory symptoms as a foundation for a negative nexus. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (noting that VA examiner's opinion, which relied on the absence of contemporaneous medical evidence, was inadequate). The JMR found that the examiner did not address the Veteran's claims for a lung and heart disabilities on a direct basis. A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be used to establish service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The chronic conditions listed under 38 C.F.R. § 3.309 include myocarditis and sarcoidosis, but do not include restrictive lung disease or enlarged ventricle/atrium. The Veteran should be afforded an additional VA examination with nexus opinions. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim.) Accordingly, the case is REMANDED for the following action: 1. Ongoing VA treatment records should be obtained and associated with the virtual record. 2. After all available treatment records have been associated with the virtual record, schedule the Veteran for a VA examination. Following a review of the virtual record, prior VA examinations, and this REMAND, and the completion of all necessary tests and studies, the examiner should address the following: a) List the Veteran's diagnosed lung and heart disabilities. b) For each diagnosed lung disability, is it at least as likely as not (50/50 probability or greater) the lung disability began or was caused by the Veteran's military service? Address the Veteran's statement that his cough began in service. Address the January 1970 hospitalization for a fever. c) For each diagnosed lung disability, is it at least as likely as not (50/50 probability or greater) the lung disability is due to exposure to Agent Orange? d) For each diagnosed lung disability, is it at least as likely as not (50/50 probability or greater) the lung disability is due to exposure to Napalm? Address the Veteran's statement that his cough began after prolonged (few hours) exposure to smoke following a Napalm bombing. e) For each diagnosed heart disability (excluding coronary artery disease), is it at least as likely as not (50/50 probability or greater) a lung disability caused the heart disability? A complete rationale/explanation should be provided with each opinion expressed. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, provide a Supplemental Statement of the Case and provide an appropriate period of time in which to respond. Then, return the appeal to the Board, if in order. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2014).