Citation Nr: 1538599 Decision Date: 09/09/15 Archive Date: 09/18/15 DOCKET NO. 06-21 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), emphysema, chronic bronchitis, pulmonary hypertension, and pulmonary edema associated with the lung disability. 2. Entitlement to service connection for a heart disability, to include angina, congestive heart failure, coronary artery disease (CAD), and hypertensive heart disease associated with the heart disability. 3. Entitlement to service connection for a psychiatric disability, to include depression. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran had active military service from August 1957 to July 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2005 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO is the Agency of Original Jurisdiction (AOJ). The Board denied this appeal (lung disability and heart disability) in November 2008. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2009, the Court granted a joint motion for partial remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the November 2008 Board decision as to the heart and lung issues, and remanded those issues to the Board for action consistent with the terms of the JMR. The Board remanded the heart and lung issues to the AOJ for additional development in December 2009 and in October 2011. In a January 2013 decision, the Board again denied the appeal as to the heart and lung issues. The Veteran appealed that decision to the Court. In June 2014, the Court issued a Memorandum Decision in which it vacated the January 2013 Board decision as to the heart and lung denials and remanded those issues to the Board for further development and readjudication. In so doing, the Court determined that there had not been compliance with the Board's October 2011 Remand instructions. The Board remanded the claims in December 2014 for further development. A March 2015 supplemental statement of the case was most recently issued and the claims are once again before the Board. In June 2014, the Board remanded an issue of entitlement to service connection for a psychiatric disorder to the AOJ for further development. A December 2014 supplemental statement of the case was issued and this claim is once again before the Board. This appeal is comprised of documents contained in the Veterans Benefits Management System (VBMS) and the Virtual VA system. All future documents should be incorporated into the Veteran's VBMS file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for a heart disability and a psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). The Board apologies for the delays in the adjudication of this case. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's diagnosed lung disability had its onset in service or is otherwise etiologically related to his active service. CONCLUSION OF LAW A lung disability was incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014). Generally, the evidence 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran contends that he was extensively exposed to lead through paint fumes, chips, and dust while in charge of a paint locker aboard a seafaring vessel during his active service, where his duties included opening and mixing cans of paint, and that such lead exposure resulted in his claimed lung disability. The Veteran has submitted buddy statements attesting to his exposure to lead in service. The Board will afford the Veteran the benefit of the doubt and concede exposure to lead in service more than 50 years ago. Service treatment records reflect no complaints or treatment related to any lung problems. The July 1959 report of examination for the Veteran's separation from service reflects a normal clinical evaluation of the lungs and chest, with no lung problems noted. Chest X-rays at the time were noted to be negative. The record also includes an October 2014 private opinion from the Veteran's private treating pulmonologist which notes that the Veteran was assigned to a paint locker during his active military service which he finds is the direct and proximate cause of the Veteran's COPD, chronic bronchitis, emphysema and pulmonary edema and pulmonary hypertension. The private examiner noted that the Veteran inhaled lead-based fumes and was subjected to lead paint particulates that ultimately caused his diaphragm to become paralyzed, which in turn caused the subject conditions and illnesses. He noted that during his 15 years as a pulmonologist he has done extensive research on the affects of lead-based paint on the human anatomy and finds the affects to be devastating at best. Therefore, it is his opinion that the maladies suffered by the Veteran, as noted above, are directly tied to his exposure to lead-paint fumes and its particulates. The record also includes various negative VA examinations and opinions. The Board has considered in detail the medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Lewinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.). Therefore, while there is significant evidence against this claim, resolving all doubt in favor to the Veteran, and to avoid further litigation (in light of the findings in this case, the court litigation, and the delays, further medical opinions will provide highly limited evidence either in favor or against this claim - we are attempting to address a case involving alleged exposures more than one-half century ago with highly limited factual evidence - the Board must, at some point, provide finality), the Board finds that the evidence supports a nexus between the Veteran's current lung disability and his military service. As all elements of service connection have been satisfied, service connection for a lung disability is granted. See 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(d) (2015). The nature and extent of the disorder is not before the Board at this time. ORDER Service connection for a lung disability is granted. REMAND Unfortunately, the Board finds that further development is necessary regarding the Veteran's claims of entitlement to service connection for a heart disability and a psychiatric disability. Heart Disability- The Veteran's service connection claim for a heart disability was most recently remanded in December 2014 for a VA examination and opinion. A February 2015 Heart examination was completed. The VA examiner indicated that a stress echocardiogram was ordered, specifically to rule out cardiac problems related to lead. There is no indication that this testing was completed. It remains unclear what heart disabilities the Veteran is currently diagnosed with. The Board finds that this claim must be remanded so that the requested testing can be completed and additional opinions can be rendered. Psychiatric Disability- As noted above, the Board has conceded that the Veteran was exposed to lead in service. Post-service treatment records reflect that the Veteran has been diagnosed with a major depressive. The Veteran asserts that his psychiatric disability was caused by his conceded in-service lead exposure. Given that in-service exposure to lead has been conceded and there is post-service treatment for psychiatric issues, and in light of the findings of the Court, the Board finds that a remand for a VA examination is necessary. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA heart examination to determine the nature and etiology of his angina, congestive heart failure, coronary artery disease, hypertensive heart disease, and pulmonary hypertension (if any). A stress echocardiogram requested in the February 2015 VA examination should be completed. The examiner must be provided with the claims file for review and the examiner should indicate review in the examination report. The examiner is then asked to indicate for each heart disability whether it is at least as likely as not (a 50 percent or greater probability) that the condition had its onset during active service or was caused by the active service. Each heart disability must be individually identified and discussed. The examiner's opinion must specifically address whether exposure to lead from lead based paint during active service caused any of the identified heart conditions. The examiner is asked to discuss the medical literature submitted purporting to link lead paint exposure to the Veteran's heart disabilities. The examiner is asked to review the Joint Motion of September 2009 and the Court's Memorandum Decision of June 2014 so as to understand the complexity of this case and so as to avoid further delay from another inadequate examination and opinion. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of both the lay and medical evidence of record. 2. Schedule the Veteran for an examination to evaluate the relationship between his psychiatric disability and active duty service. The examiner should identify any current chronic psychiatric disability. All necessary testing should be completed. The examiner is then asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability of greater) that any current psychiatric disability had its onset in service or is otherwise causally related to service, to include lead exposure. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should so state and provide supporting rationale. The claims file must be reviewed in conjunction with such the examination, and the examiner must indicate that such review occurred. 3. This is a complex case back from the Veteran's Court and already Remanded. The AOJ must review the examination report in light of these Remand directives and the September 2009 JMR and the June 2014 Memorandum Decision. The RO/AMC is asked to review the June 2014 Court Memorandum Decision in great detail. If the examination and opinion do not comply with the Board's directives, the AOJ must take immediate corrective action. 4. Then, readjudicate the claims that are the basis of this Remand. If any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order. The appellant 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 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs