Citation Nr: 1612209 Decision Date: 03/25/16 Archive Date: 03/29/16 DOCKET NO. 12-04 949A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a respiratory disorder other than asbestosis, including chronic obstructive pulmonary disease (COPD) and bronchiectasis, including as secondary to service-connected asbestosis. 2. Entitlement to an initial rating higher than 10 percent for the asbestosis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert C. Chisolm, Attorney at Law ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty (AD) from August 1955 to May 1959, with unverified periods of subsequent additional service in the reserves, so possibly on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). The Veteran appealed to the Board of Veterans' Appeals (Board/BVA) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In particular, in a July 2010 decision the RO granted his claim for service connection for asbestosis and assigned an initial 0 percent (so noncompensable) rating retroactively effective from December 8, 2009. He contested that initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). He also contested the RO's denial of his claim for service connection for COPD. In January 2012, the RO granted a higher 10 percent initial rating for the Veteran's asbestosis as of the same retroactive effective date. He continued to appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In an August 2013 rating decision since issued, the RO additionally denied service connection for bronchiectasis. The Veteran also, in response, completed the steps necessary to perfect his appeal of this additional claim, including especially by filing the necessary timely Substantive Appeal (namely, an Informal Hearing Presentation (IHP) by his then representative of record that was accepted as an equivalent to a VA Form 9). See 38 C.F.R. §§ 20.200, 20.202, etc. (2015). Moreover, because of the holding in a precedent case, the Board expanded his claim for service connection for COPD to include all respiratory disorders that had been diagnosed, so including this additionally-claimed bronchiectasis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Likewise, pursuant to the holdings in other precedent decisions, the Board determined that a derivative claim for a TDIU had been raised since part and parcel of the claim for a higher initial rating for the asbestosis. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Mayhue v. Shinseki, 24 Vet. App. 273 (2011). Unfortunately, however, the claims required further development before being decided on appeal, so in July 2014 the Board remanded them to the Agency of Original Jurisdiction (AOJ). Regrettably, for reasons and bases that will be discussed, another remand of these claims is required because there was not compliance with the Board's prior remand directives, even the acceptable substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Although requested, the Veteran's reserve service has not been verified and the medical opinion obtained is inadequate). The Veteran's attorney also since has submitted additional argument in February 2016, including a supporting medical opinion from L.M.G., M.D., FCCP, which is dated in December 2015. The attorney indicated they were waiving their right to have the AOJ initially consider this additional evidence, preferring instead that the Board do so in the first instance. See 38 C.F.R. § 20.1304(c) (2015). The physician rendering this medical opinion, however, needs to provide further explanation for it, so this, too, is another reason the Board is remanding these claims rather than immediately deciding them. Also note, however, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2015). REMAND The Board sincerely regrets the additional delay that inevitably will result from this additional remand of these claims, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration. As already alluded to, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. The prior July 2014 remand instructed the AOJ to verify whether the Veteran had reserve service and, if so, to specify all periods of ACDUTRA and INACDUTRA. A September 2014 Personnel Information Exchange System (PIES) response to a request for verification of reserve service indicates the Veteran served in the Naval Reserves from June 20, 1955, to August 15, 1955, and from May 19, 1959, to August 19, 1963. The response further noted that "this request does not fit into the parameters of Code 13" and that any request for service treatment records [STRs] must be submitted to "M01 to Code 13." There is no indication in the claims file that further action was taken in that respect, however, and it resultantly is still unclear what periods of reserve service were considered ACDUTRA or INACDUTRA. Accordingly, another attempt must be made to try and specify the dates of this additional service. The prior July 2014 remand also instructed the AOJ to arrange for an examination addressing the current severity of the Veteran's service-connected asbestosis. The examiner was also to identify the etiology of each diagnosed respiratory disorder other than asbestosis and to determine whether it is (a) related to service (either AD or a period of ACDUTRA), to include as due to exposure to asbestos, non-ionizing radiation, or carbon tetrachloride; (b) related to any injury incurred during any verified period of INACDUTRA; or (c) caused or aggravated by the Veteran's service-connected asbestosis. The examiner was also to address whether the Veteran's use of outpatient oxygen therapy is due, at least in part, to his service-connected asbestosis and whether his asbestosis, alone, results in marked interference with employment. During a subsequent November 2014 VA examination, Dr. B.C.B., Director of the Providence VA Medical Center (VAMC) Compensation and Pension facility, stated that all prior examinations and conclusions "should be removed from the discussion" and diagnosed moderate-to-severe COPD and acquired bronchiectasis. He opined that the Veteran's chest X-rays showed no pleural plaques or interstitial lung disease that would support diagnoses of asbestosis or cor pulmonale; however, due to the severity of his COPD, cor pulmonale could be present. He conceded the Veteran is incapable of physical or sedentary employment due to his respiratory disabilities. In an April 2015 addendum opinion, Dr. B.C.B., along with two pulmonologists, emphasized that the Veteran "HAS NEVER HAD, DOES NOT NOW HAVE, NOR IN THE FUTURE WILL HAVE, ASBESTOSIS" and noted that asbestosis was never diagnosed by anyone in his facility. He further opined that the Veteran's respiratory disorders are not due to military service but are more likely due to heavy cigarette smoking. Further, because the Veteran does not have asbestosis, there is no respiratory impairment resulting from asbestosis and continuous oxygen is not required due to this disability. Likewise, he is not precluded from employment based on his (non-diagnosed) asbestosis. The Board finds the November 2014 and April 2015 examination report and addendum opinion inadequate for several reasons. As an initial matter, in reaching his conclusion that the Veteran does not have asbestosis, the examiner stated, without explanation, that all prior examinations and conclusions (which include a diagnosis of asbestosis) should be removed from the discussion. And, in his April 2015 addendum opinion, Dr. B.C.B. stated that no one in his facility has ever diagnosed asbestosis. Contrary to this assertion, however, Dr. B.C.B. himself diagnosed asbestosis during the Veteran's November 2011 examination and stated that his chest X-ray and forced vital capacity on pulmonary function testing were "consistent with asbestosis"; asbestosis was also diagnosed on March 2010, April 2012, and July 2013 VA examinations from the Providence VAMC. Additionally, a September 2015 VA treatment record includes a diagnosis of asbestosis due to asbestos exposure. The Board also finds that this examiner failed to address all diagnoses made since the Veteran filed his claim, including especially of COPD, bronchiectasis, bronchitis, emphysema, and cor pulmonale. Further, in concluding that the Veteran does not have asbestosis, the examiner failed to address whether the Veteran's additional respiratory disorders could be caused or aggravated by his service-connected disability. As the Veteran is already service-connected for asbestosis, the examiner must assume that the Veteran has asbestosis and provide the requested opinions accordingly. Once VA undertakes the effort to provide an examination in response to a claim, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully-informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). See also Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). Most of the probative value of an opinion comes from its underlying reasoning or explanatory rationale, not just from review of the claims file or the ultimate response. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two"). Further, in a December 2015 opinion (received by the Board in February 2016 through the Veteran's attorney), a private pulmonologist, L.M.G., M.D., FCCP, indicated that he had reviewed the Veteran's records and concluded that he suffered from pneumonia in service and that further reported symptoms during sick calls corroborate bouts of bronchitis. According to this commenting physician, this information, coupled with the Veteran's exposure to possible radiation, asbestos, and potentially toxic cleaning agents, shows the onset of pulmonary issues while in service. Further, his episodes of acute bronchitis "carried over into his civilian life" and the cumulative effect of these episodes led to severe chronic bronchitis and progressed into bronchiectasis. This commenting physician diagnosed bronchiectasis and opined that it began while the Veteran was in service and is related to his exposure to possible radiation, asbestos, and potentially toxic cleaning agents during his service. This physician further determined the Veteran's respiratory disorders render him unable to secure and follow substantially gainful employment. This commenting physician did not, however, make any mention whatsoever of the Veteran's well-documented history of chronic smoking (totaling some 46 years, even accepting that he reportedly quit in 1996 or thereabouts). This is significant because this physician claims to have reviewed the Veteran's claims file (indeed, some 2480 pages of evidence), yet he did not discuss why the Veteran's well-known history of chronic smoking is clinically insignificant or has no substantive role in his current respiratory impairment. For claims, as here, filed on or after June 9, 1998, there is express prohibition to granting service connection for disability on the basis that it results from an injury or a disease attributable to the use of tobacco products (i.e., chronic smoking). See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. If this commenting physician believes the history of smoking has no relevance, or at the very least minimal significance, then he must discuss why this is the case. But as it stands, he did not account for it at all since there was not even the slightest mention of it in his report. In light of these conflicting opinions, the differing diagnoses, and the additional development previously specified in the Board's prior July 2014 remand and yet uncompleted, the Board finds that additional development must be done before adjudicating these claims. Additionally, because adjudication of the Veteran's increased-rating claim for asbestosis will likely impact adjudication of his derivative TDIU claim (as will any potential grant of service connection for other respiratory disorders), these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two claims are inextricably intertwined when they are so closely tied together that a final Board decision on one cannot be rendered until the other has been considered). Accordingly, these claims are REMANDED for the following still additional development and consideration: (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. Make another request to verify any additional military service for the Veteran, including the specific periods of ACDUTRA and INACDUTRA and obtain the Veteran's service treatment records for these periods of Reserve service. All efforts in this respect are to be documented in the claims file. 2. Thereafter, return the file to the examiner who performed the November 2014 VA compensation examination (and wrote the April 2015 addendum opinion) for preparation of an addendum addressing the current severity of the Veteran's service-connected asbestosis and the etiology of all other respiratory disorders. If the opinion provider is unavailable or in the event he determines that further examination of the Veteran is necessary, the Veteran should be scheduled for an appropriate VA medical examination. The opinion provider should be advised of the periods of active service/ACDUTRA/INACDUTRA that have been verified, and the nature of the Veteran's duties. Explanatory rationale must be provided for all opinions expressed. If the requested opinions cannot be made without resorting to mere speculation, the examiner must state this and specifically explain why this is so. SERVICE CONNECTION IS ALREADY IN EFFECT FOR ASBESTOSIS. THE EXAMINER THEREFORE IS TO ASSUME FOR PURPOSES OF THIS EXAMINATION THAT THE VETERAN HAS A CURRENT DIAGNOSIS OF ASBESTOSIS. (a) Does the have cor pulmonale or pulmonary hypertension due to his service-connected asbestosis? (b) Does the Veteran require outpatient oxygen therapy due to his service-connected asbestosis? (c) Identify (by diagnosis) each of the Veteran's respiratory disabilities, other than asbestosis, made since the Veteran filed his claim around November 2009, to include COPD, bronchiectasis, bronchitis, emphysema, restrictive lung disease, and cor pulmonale. The opinion provider is informed that it is not enough merely to conclude the Veteran does not have these claimed conditions, even if not diagnosed during this current or prior evaluation. He only instead needs to show he has had this claimed condition at some point since the filing of his claim or contemporaneous thereto, even if now resolved. (d) For each respiratory disorder diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such is related to his service (to include verified periods of ACDUTRA or INACDUTRA), to include as due to exposure to asbestos, non-ionizing radiation, and/or carbon tetrachloride? In answering this question, the opinion provider is informed that the Veteran is competent to report certain events having occurred during his service and is equally competent to report on symptoms experienced and treatment provided both during and since his service because this is based on his firsthand knowledge. (e) If not, is it at least as likely as not (a 50 percent or greater probability) that such disorder was caused by his service-connected asbestosis? (f) If not, is it at least as likely as not (a 50 percent or greater probability) that such disorder was aggravated (worsened beyond the normal progression) by his service-connected asbestosis? If the opinion provider finds that any respiratory disability was aggravated by his service-connected asbestosis, the examiner should specify, to the extent possible, the degree of disability (pathology/impairment) that is due to such aggravation. (g) For every respiratory disability determined to be related to service or to the Veteran's service-connected disability, the opinion provider should comment on the functional impact of such respiratory disabilities. The examiner should specifically comment on the functional impact of the Veteran's service-connected asbestosis to determine whether a TDIU is warranted. In answering (c)-(g), the opinion provider is asked to make specific reference to: private and VA medical records and VA examination reports showing that, during the period of the appeal, the Veteran has been variously treated for and diagnosed with COPD, bronchiectasis, bronchitis, emphysema, restrictive lung disease, and cor pulmonale, and which show that his use of oxygen therapy is due, at least in part, to his service-connected asbestosis; his statements regarding continued symptoms of breathing problems and pneumonia since his service; and prior opinions and the Veteran's own statements regarding his inability to work due to his respiratory disabilities. The opinion provider must explain the rationale for all opinions. 3. Ask the Veteran's attorney to have L.M.G., M.D., FCCP, the private pulmonologist that commented rather recently in December 2015, submit additional comment addressing the significance (or lack thereof) of the Veteran's well-documented history of chronic smoking, which reportedly totaled some 46 years and only ended in 1996 or thereabouts. In other words, this physician needs to account for this smoking history or discuss why it is clinically insignificant. As it stands, there was no mention of this history in this doctor's December 2015 statement, despite his assertion that he had reviewed the claims file (2480 pages), which included but was not limited to VA records, civilian medical records and VA claims requests. 4. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied or are not granted to the Veteran's satisfaction, send him and his attorney another Supplemental Statement of the Case (SSOC) and give them opportunity to respond to it before returning the file to the Board for further appellant consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), only a decision of the Board 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) (2015).