Citation Nr: 18148329 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-36 012A DATE: November 7, 2018 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is granted. REMANDED Entitlement to an initial increased rating for cervical spondylosis (also claimed as neck injury) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his diagnosed COPD was incurred during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to October 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA). Service connection for COPD is granted. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends his COPD is related to his active service as a ship’s serviceman on the USS Sierra (AD-18) during Vietnam. Specifically, he asserts that he was exposed to asbestos while working in the laundry room in 1965. See September 2017 private examination. First, both an April 2015 VA and a September 2017 private examination reports establish the Veteran has a current diagnosis of COPD. Next, the Veteran competently asserts that he was exposed to asbestos while serving on the USS Sierra (AD-18) in 1965. Indeed, the Veteran’s service treatment records (STRs) show that he served on the USS Sierra in 1965 and he submitted evidence showing that the “Navy continued to require the use of asbestos-containing materials on ships” from 1960 to 1970. See 2011 asbestos review article. Therefore, the remaining question is whether the Veteran’s COPD is related to service. In this regard, the Board notes there are conflicting opinions of record. Indeed, the September 2017 private examiner opined the Veteran’s COPD “is likely as not to have resulted from his asbestos exposure in service.” He reasoned that because the “use of asbestos in shipbuilding was still ubiquitous” in the 1960’s, the Veteran “may have actually have been at significant unrecognized risk due to working in the laundry and washing clothes possibly laden with asbestos and after a latency period of about 20 years (typical for cases of asbestos) the Veteran began noting increasing shortness of breath.” He further noted that “smoking not only causes a significant increase of the toxic effects of asbestos to the lung, but can cause a mixed pathology picture, with predominance of COPD findings. The Veteran's lung disease dominated by a COPD picture therefore does not rule out asbestos as a significant factor, as the VA reviewer stated, nor does his longstanding smoking history. His symptoms and objective findings are entirely consistent with a case of asbestos in a chronic smoker.” This rationale is supported by reports in VA and private treatment records which document a diagnosis of COPD and complaints of coughing, wheezing, dyspnea, fatigue, and use of oxygen since the 1980’s. See VA treatment records dated July 2009, February 2012, May 2014, April 2015; private treatment records dated September 2007, September 2017. The opinion is supported by a full rationale which is supported by the evidence of record and cites to specific medical studies. Therefore, the Board places great probative weight on this opinion. On the other hand, the April 2015 VA examiner provided a negative opinion stating that the Veteran's COPD is less likely as not due to service and at least as likely as not due to long history of smoking. Medical records review reveals long history of smoking. The examiner reasoned that the “medical studies have established smoking as the primary risk factor for decline in respiratory function and for acute respiratory infections. Cigarette smoking is overwhelmingly the most important factor for developing COPD.” In view of the totality of the evidence, the Board finds that the evidence is at least in equipoise in favor and against the claim and the Board will resolve reasonable doubt in the Veteran’s favor. Therefore, service connection is warranted. In sum, upon consideration of the above, the Board finds that after resolving the benefit of the doubt in favor of the Veteran, service connection for COPD is warranted. 38 C.F.R. §§ 3.102, 3.303(a); see Gilbert, supra. REASONS FOR REMAND Entitlement to an initial increased rating for cervical spondylosis is remanded. VA examinations must include joint testing on both active and passive motion, and in weight-bearing and nonweight-bearing circumstances, with range of motion measurements. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the November 2009 and June 2016 VA cervical examinations do not fully comport with the requirements of Correia. The examination reports provide range of motion results for the neck, but do not specify the type of testing on which these results were based, such as active or passive, weight-bearing or nonweight-bearing, or provide results for each type of test, as required. If only active range-of-motion testing was performed, and the other tests were deemed not necessary or possible, the examiners did not state that in the report. Moreover, while pain was noted the point at which pain started was not noted. Further, the United States Court of Appeals for Veterans Claims (Court) has held that with respect to flare-ups, VA examiners must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation, including by soliciting information regarding frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). During the November 2009 VA examination, the Veteran indicated that he experienced flare-ups of the neck that occur several times a week lasting for several hours and have lasted as much as 3 to 4 days. “It is precipitated by movement and especially with driving when he has to turn his neck.” He noted the pain is “moderate to severe” and “complains of tingling in his fingertips.” Further, during the June 2016 VA exam, the Veteran indicated that he experienced pain during flare-ups that was 9 out of 10 and the examiner noted that the Veteran is unable to look far, side to side, down, or “up at all.” However, the examiners did not solicit any additional information regarding the flare-ups. While the Veteran’s statements suggest that his range of motion is further restricted during flare-ups, the examiners concluded that they were unable to state, without resorting to speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because the veteran did not have a flare-up of the cervical condition during the examination. As the November 2009 and June 2016 VA examinations do not reflect the considerations required by Sharp, remand for an additional examination that addresses flare-ups of the Veteran’s cervical condition in compliance with Sharp is required. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities since July 2018. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record. 2. After the above development has been completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected cervical disability. The examiner must review the entire record in conjunction with the examination. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran (the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare ups and the examiner should provide an opinion as to limitation of motion, if feasible, based on that information). If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel