Citation Nr: 1544542 Decision Date: 10/20/15 Archive Date: 10/29/15 DOCKET NO. 11-20 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertensive heart disease, to include as due to in-service exposure to asbestos. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to in-service exposure to asbestos and as secondary to hypertensive heart disease. 3. Entitlement to service connection for a low back disorder. 4. Entitlement to service connection for residuals of heat stroke. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In July 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In July 2015, the Veteran, waived the right to initial RO review of evidence received after the March 2015 statement of the case (SOC). No additional action in this regard is warranted. See 38 C.F.R. § 20.1304(c) (2014). The Board has reviewed all pertinent evidence in the Veteran's claims file, which has been converted in its entirety to an electronic record as part of VA's paperless Veterans Benefits Management System (VBMS). The issues of entitlement to service connection for COPD, a low back disorder, and residuals of a heat stroke are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's hypertensive heart disease had its onset in service. CONCLUSION OF LAW The criteria for service connection for hypertensive heart disease have been met. 38 U.S.C.A. §§ 1110, 1112, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the two. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the claimant's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his hypertensive heart disease is causally or etiologically related to service. Specifically, he contends that he developed hypertensive heart disease as the result of exposure to asbestos when he served aboard the U.S.S. McCloy. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988 VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a Manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The Manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The Manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. As an initial matter, the Board notes that the Veteran's medical records provide a diagnosis of hypertensive heart disease, to include congestive heart failure. The Veteran's service personnel records reveal that he served on the U.S.S. McCloy as a machinists mate. Therefore, it is presumed that he was exposed to asbestos during his military service. In February 2011, a VA examiner, based on a review of the claims file, opined that the Veteran's hypertensive heart disease is not caused by his exposure to asbestos. In March 2015, the Veteran's treating cardiologist linked the Veteran's hypertensive heart disease to his exposure to asbestos. The medical evidence thus contains competent and probative medical opinions in favor of and against the Veteran's claim. The Board finds that the medical evidence is at least in equipoise. Thus, resolving reasonable doubt in favor of the Veteran, service connection is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert. ORDER Service connection for hypertensive heart disease is granted. REMAND The Veteran is seeking service connection for COPD to include as due to in-service exposure to asbestos and as secondary to service-connected hypertensive heart disease. In February 2011, a VA examiner diagnosed COPD, with no radiological evidence of asbestosis. The examiner did not provide any explanation for his conclusion that this condition did not have its onset in service and is not otherwise related to service. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Veteran must be scheduled for a new examination before the issue can be decided on the merits. Further, the examiner must provide an opinion on service connection on a secondary basis, including whether the COPD has been caused or aggravated by the now service-connected hypertensive heart disease. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). As to the issue of service connection for residuals of a heat stroke, the Veteran's service treatment records show that he was seen on April 6, 1965 for over exposure to heat and sun burn. He was diagnosed with mild heat stroke and was treated with a cool shower, salt tablets, and bed rest. On April 7, 1965 he reported that he felt better and was prescribed an ointment for his sunburn. The Veteran testified that hot and cold weather affects him in that he becomes overheated and weak. The February 2011 VA examiner did not provide a diagnosis or an etiology opinion. As such, this issue must be remanded. Finally, the Veteran contends that his low back disorder began during service and has continued since service. Specifically, he asserts that he fell off a ladder twice during service and landed on his back. The Veteran submitted statements from his ex-wife and childhood friend indicating that, during and after active service, the Veteran complained about back pain. The Veteran was not afforded a VA examination to obtain an etiological opinion regarding his claim for service connection for a low back disorder. Based on the evidence, the Board finds that such development should be accomplished on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records related to his residuals of a heat stroke, COPD, and back disability. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service residuals of heat stroke, COPD and back disability. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 3. After associating any pertinent, outstanding records with the claims folder, schedule the Veteran for an appropriate VA examination that addresses the nature, extent, onset, and etiology of any respiratory disability found to be present. The examiner should review the claims file and note such review in the report. All indicated studies should be performed and all findings should be reported in detail. The examiner is specifically requested to: (a) Identify all currently diagnosed respiratory disorders, to include COPD. (b) Please determine whether it is at least as likely as not that any identified respiratory disorders are caused by or due to the Veteran's military service, including his in-service exposure to asbestos. (c) The examiner is also asked to determine whether the Veteran's service-connected hypertensive heart disease caused or aggravated any diagnosed respiratory disorders. By aggravation, the Board means a permanent increase in severity that is beyond natural progression. All findings and conclusions should be set forth in a legible report. 4. Schedule the Veteran for a VA spinal examination to determine the etiology of his lumbar spine disability. The examiner should review the claims file and note such review in the report. All indicated studies should be performed and all findings should be reported in detail. The examiner is specifically requested to: Identify all lumbar spine disabilities found to be present, and noting the Veteran's in-service and post-service history, state whether it is at least as likely as not that any diagnosed lumbar spine disability is related to or had its onset in service. For purposes of the examination, please consider the lay statements of in-service symptomatology and ongoing back problems since service to be competent. All findings and conclusions should be set forth in a legible report. 5. Schedule the Veteran for an appropriate VA examination to obtain a medical opinion clarifying whether the Veteran has current residuals of a heat stroke that are related to his period of service. The examiner should review the claims file and note such review in the report. All indicated studies should be performed and all findings should be reported in detail. The examiner is specifically requested to address the following: (a) Identify all currently diagnosed residual disability of heat stroke, to include heat/cold intolerance? (b) State whether it is at least as likely as not that any diagnosed residual disability of heat stroke is related to or had its onset in service. For purposes of the examination, please consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disorder to be competent. All findings and conclusions should be set forth in a legible report. 6. Thereafter, readjudicate the Veteran's claims. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs