Citation Nr: 18146907 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 99-17 639 DATE: November 2, 2018 ORDER Service connection for lung cancer, to include as secondary to asbestos exposure is granted. REMANDED Entitlement to service connection for degenerative disc disease L4-L5, with spinal stenosis, to include as secondary to service-connected post-operative pilonidal cyst. is remanded. Entitlement to a temporary 100 percent benefits under 38 C.F.R. 4.29 and/or 38 C.F.R. 4.30(claimed as temporary total disability) is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance and/or housebound status is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran’s in-service exposure to asbestos was at least as likely as not a contributing factor to the development of lung cancer. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lung cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1960 to December 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 1999, February 2000 and July 2017 (lung cancer, SMC and temporary total evaluation rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in July 2018. In June 2016, the Board requested a Veterans Health Administration (VHA) opinion, which was provided in June 2016. In a November 2016 decision, the Board again denied the claims on appeal. The Veteran appealed the Board’s November 2016 decision to the Court. Pursuant to an October 2017 Joint Motion for Remand (Joint Motion), the Court vacated the Board’s November 2016 decision, and remanded the matters to the Board for further action. In February 2018, the Board remanded the issues of entitlement to service connection for lung cancer, SMC and entitlement to a temporary total evaluation because of convalescence so the RO could issue the Veteran a statement of the case (SOC) regarding these claims because they had failed to do so. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Regarding the Veteran’s claim for entitlement to service connection DDD L4-L5, with spinal stenosis, in the October 2017 Joint Motion, it was found that the Board failed to satisfy its duty to assist as there was no evidence that VA attempted to obtain the Veteran’s service hospitalization records. Specifically, the Veteran’s service treatment records reflected he was hospitalized at the U.S. Army Hospital in Fort Sill, Oklahoma, for a pilonidal cyst and infection from October 17, 1960 to November 23, 1960 and November 28, 1960 to December 20, 1960. The service treatment records contained only discharge summaries from these two hospitalizations. Additionally, the Joint Motion stated that there was no evidence that VA attempted to obtain the full hospitalization records. As these records were potentially relevant to the Veteran’s service connection claim for degenerative disc disease L4-L5, with spinal stenosis, as it is contended that such disability is secondary to his service-connected post-operative pilonidal cyst, and based on the instructions of the October 2017 Joint Motion, in February 2018, the Board remanded the issues for further action. Service Connection The Veteran is seeking service connection for lung cancer which he contends is due to asbestos exposure. To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). A disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected on a secondary basis. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran’s private treatment records show a diagnosis of malignant neoplasm of upper lobe, left bronchus or lung in March 2017. See June 2017 Oncology Follow-up Visit. The Veteran’s MOS was ammo specialist. At his July 2018 Board hearing, the Veteran competently and credibly testified that as part of the ammunition division, he worked on trucks and cleaned brakes and believed he was exposed there and at the ammo dump, where he saw boxes of asbestos being stored. In August 2018, the Veteran’s private examiner submitted an opinion that the Veteran did have exposure to asbestos while working in the Army. Asbestos was used on the brakes. Using the air hose cause the asbestos particles to become airborne. He opined that it is more likely than not, that this Veteran did indeed have been asbestos exposure in the Army and that said asbestos caused scarring in the lungs with asbestosis and the asbestos fibers are a carcinogenic and caused his development of lung cancer. He reasoned that it takes very little asbestos exposure to cause subsequent lung cancer. For instance, mechanics who were around asbestos in brakes and ship builders around asbestos in the pipes would return home. Wives of mechanics who worked around brakes with asbestos or ship builders who were around asbestos developed asbestosis just from the small amount of dust from the asbestos on their husband’s work clothes. The latency period for asbestos is very long. When the asbestos fibers when they get into the lungs cause scarring and asbestosis. He added, when the fibers get into the lungs or the body can then cause cancer, especially lung cancer, which there are several types of lung cancers, but it may not occur for many years after the asbestos exposures. Since the opinion provided by the Veteran’s private physician who has extensive knowledge of the Veteran’s medical history, and there are no contrary opinions, it provides the basis upon which to establish service connection for lung cancer as due to asbestos exposure. Service connection for lung cancer is granted. REASONS FOR REMAND 1. Entitlement to service connection for degenerative disc disease L4-L5, with spinal stenosis, to include as secondary to service-connected post-operative pilonidal cyst. The Veteran asserts that his degenerative disc disease with spinal stenosis is the result of active duty service. The Board has obtained additional service treatment records regarding the Veteran’s hospitalization in November and December of 1960; however, these records contain more detailed treatment of the Veteran’s pilonidal cyst condition and not his degenerative disc disease with spinal stenosis. The Veteran submitted a buddy statement from his friend, who reported visiting the Veteran in the summer or fall of 1960, when he found out he was having trouble with his back. His recollection of the that time period coincides with the Veteran’s treatment for a pilonidal cyst. Clarity is needed regarding this matter. The Veteran was initially provided a VA examination in March 2003. The March 2003 VA examiner provided a negative opinion regarding the Veteran’s back condition. In September 2015, the Veteran’s private examiner provided a positive nexus opinion regarding his back condition. The Veteran’s service treatment records do not specifically show treatment for low back problems separate from symptoms associated with the Veteran’s service-connected pilonidal cyst. However, the Veteran testified that he developed back pain during service from lifting ammunition boxes. In light of the above, the Board finds that a VA examination is necessary to obtain a responsive etiological opinion. 2. Entitlement to a temporary 100 percent benefits under 38 C.F.R. 4.29 and/or 38 C.F.R. 4.30(claimed as temporary total disability) entitlement to special monthly compensation based on aid and attendance/housebound are remanded. Entitlement to an additional payment of compensation is established when service-connected impairment imposes a special level of disability. As noted above, the Board granted service connection for lung cancer. Given the change in circumstances, and to accord the Veteran due process, the Veteran should be provided a new VA Examination for Housebound Status or Permanent Need for Regular Attendance and conduct the necessary development. Additionally, these claims are inextricably intertwined with the claims remaining on appeal, appellate consideration of entitlement to SMC is deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. The Board finds the claim of entitlement to a TDIU is inextricably intertwined with the ratings and service connection claims being remanded herein. Therefore, the issue of entitlement to a TDIU is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1993) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his low back symptomatology and the nature, extent and severity of his lung symptoms and the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: (a.) Identify all back disabilities present on examination. The examiner is advised that the Veteran has a diagnosis of degenerative disc disease L4-L5, with spinal stenosis. (b.) For each currently diagnosed back disability, the examiner should provide an opinion as to whether it is as likely as not the diagnosed disorder was incurred in service or caused by an in-service injury, event or illness, to include his service-connected post-operative pilonidal cyst. (c.) Are any of the Veteran’s currently diagnosed back disabilities, including degenerative disc disease L4-L5, with spinal stenosis diagnoses, proximately due to or aggravated by any of the Veteran’s service-connected disabilities (i.e. service-connected post-operative pilonidal cyst)? 3. Schedule the Veteran for a new VA 21-2680, Examination for Housebound Status or Permanent Need for Regular Attendance Examination to assess the nature and severity of the Veteran’s service-connected disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel