Citation Nr: 18152764 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 17-47 027 DATE: November 26, 2018 ORDER New and material evidence has been submitted to re-open a claim for entitlement to service connection for prostate cancer and, to this extent only, the claim is granted. New and material evidence has been submitted to re-open a claim for entitlement to service connection for bladder cancer and, to this extent only, the claim is granted. Entitlement to an increased disability rating for service-connected tuberculous pleurisy with effusion in excess of 10 percent disabling is denied. REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for bladder cancer is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as due to service-connected pleurisy, is remanded. FINDINGS OF FACT 1. The January 2010 rating decision that denied the Veteran’s claim for prostate cancer was not appealed, nor was new and material evidence received during the appeal period; however, evidence received since the final January 2010 rating decision is new and raises a reasonable possibility of substantiating the claim. 2. The January 2010 rating decision that denied the Veteran’s claim for bladder cancer was not appealed, nor was new and material evidence received during the appeal period; however, evidence received since the final January 2010 rating decision is new and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s tuberculous pleurisy remains inactive and is characterized by FEV-1 of 85 percent predicted; FVC of 81 percent; FEV-1/FVC of 78.4 percent; and intermittent inhalational bronchodilator therapy. CONCLUSIONS OF LAW 1. The January 2010 rating decision that denied the Veteran’s claim for entitlement to service connection for prostate cancer is final; however, new and material evidence has been received and, as such, the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The January 2010 rating decision that denied the Veteran’s claim for entitlement to service connection for bladder cancer is final; however, new and material evidence has been received and, as such, the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. The criteria for an increased disability rating in excess of 10 percent for tuberculous pleurisy have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.321, 4.1, 4.3, 4.89, 4.96, 4.97, Diagnostic Codes 6732, 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Petition to Reopen Prostate Cancer and Bladder Cancer Claims A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. The Veteran filed original claims for service connection for bladder cancer and prostate cancer in July 2009 that were denied in a January 2010 rating decision. The Veteran did not appeal or submit additional evidence within the appeal period and, accordingly, the January 2010 decision became final. In February 2012, the Veteran filed a petition to reopen the claim for service connection for prostate cancer. In May 2015, the Veteran filed a petition to reopen the claim for service connection for bladder cancer. New evidence submitted since the final January 2010 decision includes internet articles indicating that the 39th Air Division supported combat operations during the Vietnam war, and multiple lay statements asserting new theories of service connection such as exposure to asbestos, jet fuel, and radiation. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As this evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claim, the prostate cancer and bladder cancer claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. To this limited extent only, the petition to reopen the claims for service connection for prostate cancer and bladder cancer is granted. Increased Rating for Tuberculous Pleurisy The Veteran seeks an increased disability rating in excess of 10 percent for tuberculous pleurisy. The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Under Diagnostic Code 6732 of the Rating Schedule, active or inactive tuberculous pleurisy is rated under 38 C.F.R. § 4.88c or 4.89, whichever is appropriate. As service connection for the Veteran’s tuberculous pleurisy has been in effect since October 1964, § 4.89 applies. Under § 4.89, a total rating is warranted for 2 years after date of inactivity, following active tuberculosis, which was clinically identified during service or subsequently. A 50 percent rating is warranted thereafter, for 4 years, or in any event, to 6 years after date of inactivity. A 30 percent rating is warranted thereafter, for 5 years, or to 11 years after date of inactivity. A noncompensable rating is warranted thereafter, in the absence of a schedular compensable permanent residual. Following the total rating for the 2-year period after date of inactivity, the schedular evaluation for residuals of nonpulmonary tuberculosis if in excess of 50 percent or 30 percent will be assigned under the appropriate diagnostic code for the specific residual preceded by the diagnostic code for tuberculosis of the body part affected. The graduated ratings for nonpulmonary tuberculosis will not be combined with residuals of nonpulmonary tuberculosis unless the graduated rating and the rating for residual disability cover separate functional losses, e.g., graduated ratings for tuberculosis of the kidney and residuals of tuberculosis of the spine. Where there are existing pulmonary and nonpulmonary conditions, the graduated evaluation for the pulmonary, or for the nonpulmonary, condition will be utilized, combined with evaluations for residuals of the condition not covered by the graduated evaluation utilized, so as to provide the higher evaluation over such period. The ending dates of all graduated ratings of nonpulmonary tuberculosis will be controlled by the date of attainment of inactivity. These ratings are applicable only to veterans with nonpulmonary tuberculosis active on or after October 10, 1949. The Veteran’s inactive tuberculous pleurisy is currently rated as 10 percent disabling under DC 6602, based on residuals of obstructive and restrictive respiratory condition. Under DC 6602, a total rating is warranted for FEV-1 (forced expiratory volume in 1 second) less than 40-percent predicted, or; FEV-1/FVC (forced vital capacity) less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. A 60 percent rating is warranted for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 10 percent rating is warranted for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. The Board finds that a rating in excess of 10 percent is not warranted for service-connected tuberculous pleurisy. By way of history, the Veteran’s tuberculous pleurisy has been rated 10 percent disabling since October 1976. The medical evidence indicates that the Veteran’s tuberculous pleurisy remains inactive and is characterized by FEV-1 of 85 percent predicted; FVC of 81 percent; FEV-1/FVC of 78.4 percent; and intermittent inhalational bronchodilator therapy. In an October 2015 examination, pulmonary function testing revealed pre-bronchodilator results of FEV-1 of 68 percent predicted, FVC of 69 percent predicted, and FEC-1/FVC of 73.3 percent. Testing revealed post-bronchodilator results of FEV-1 of 85 percent predicted, FVC of 81 percent, and FEV-1/FVC of 78.4 percent. DLCO (diffusion capacity of the lung for carbon monoxide) results were not documented. The examiner determined that pulmonary function testing accurately reflected the Veteran’s current pulmonary function and FEV-1 most accurately predicted the level of disability. In a May 2016 examination, pulmonary function testing revealed pre-bronchodilator results of FEV-1 of 170 percent predicted, FVC of 171 percent predicted, FEC-1/FVC of 102 percent, and DLCO of 113 percent predicted. Testing revealed post-bronchodilator results of FEV-1 of 172 percent predicted, FVC of 175 percent, and FEV-1/FVC of 101 percent. Post-bronchodilator DLCO results were not documented. The examiner determined that pulmonary function testing accurately reflected the Veteran’s current pulmonary function and FEV-1/FVC most accurately predicted the level of disability. It was noted that the Veteran’s condition required the use of intermittent inhalational bronchodilator therapy. June 2016 VA records indicate that testing showed no obstruction or restriction and DLCO of 69 percent. Additionally, a chest X-Ray revealed heavily calcified pleural scar at the left base of the left lung and some calcified lymph nodes and small nodules in the left chest that have not changed from 2004. Treatment recommended inhalational bronchodilator therapy as needed. Having reviewed the record, the Board finds that an increased disability rating is not warranted for tuberculous pleurisy. The preponderance of the evidence reveals that tuberculous pleurisy has remained inactive and is not characterized by symptoms that would warrant the next higher rating: FEV-1 of 56- to 70-percent predicted, or; PFT results of FEV-1/FVC of 56 to 70 percent; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. Of note, the October 2015 examiner noted that the Veteran’s condition was active and intermittent. However, this contradicts the examiner’s findings that there was no change in the diagnosis and that the Veteran’s condition did not require any treatment, to include antibiotics or medications. Further, the preponderance of the record indicates that the condition has remained inactive. The May 2016 examiner determined that tuberculous pleurisy was inactive. Likewise, VA treatment records have long indicated that the Veteran’s condition has remained inactive and stable. In a June 2016 VA pulmonary note, it was noted that chest CT scans and X-Rays have not changed from 2004 to 2016. In light of this, and due to the internal inconsistency of the October 2015 examiner’s findings, the Board finds that the preponderance of the evidence indicates that the Veteran’s tuberculous pleurisy has remained inactive during the appeal period. Finally, the Veteran is competent to describe observable symptoms, such as coughing. However, 38 C.F.R. § 4.96 provides that PFTs are required to evaluate conditions under Diagnostic Code 6602. The disability evaluation in this case is predicated on medical findings, specifically pulmonary function test results. Such findings are not competently made by lay observation. Here, the pulmonary function test results are consistent with the current 10 percent evaluation for the entire period on appeal. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). The claim for an increased disability rating in excess of 10 percent for tuberculous pleurisy is denied. REASONS FOR REMAND Prostate and Bladder Cancer Having reviewed the record, the Board finds that remand is warranted for additional development and an examination. In May 2016, the Veteran asserted several new theories of service connection: exposure to asbestos; exposure to herbicides in Vietnam and in Korea; exposure to radiation from a nuclear bomb attached to an F100 while stationed in Korea; and exposure to jet fuel during his duties as an aircraft mechanic. It is unclear from a review of the record whether development has been undertaken to verify service in Korea, verify any temporary duty assignments to Vietnam, or verify exposure to radiation. First, an attempt should be made to verify whether the Veteran served within the Korean demilitarized zone during a presumptive period. Of note, in an August 1964 service treatment record, the Veteran reported that he served in Korea for approximately 11 months. Second, an attempt should be made to verify whether the Veteran had any temporary duty assignments to Vietnam. In January 2015, the Veteran submitted an article indicating that the 39th Air Division, which included the 531st Tactical Fighter Squadron, supported combat operations during the Vietnam War. Personnel records indicate that the Veteran served with the 531st squadron. Third, an attempt should be made to verify whether the Veteran was exposed to radiation during service. In March 2016, the Veteran reported working with and sleeping next to Mark 7 nuclear bombs attached to F100s during service in Japan and Korea. He additionally identified the specific tail number of the F100 super sabre jet that he primarily worked with. Further, remand is warranted for an examination. In August 2015, he submitted articles noting potential correlations between asbestos and cancers of the prostate and bladder. He additionally submitted an article indicating that air mechanics were at risk for asbestos exposure. Of note, a July 2016 rating decision noted that exposure to asbestos in service was probable based on the Veteran’s MOS as an aircraft mechanic. Acquired Psychiatric Disorder As a preliminary matter, the Board notes that based on the medical evidence of record, the claim for service connection for PTSD has been recharacterized into a claim for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Remand is warranted for an addendum opinion to address whether an acquired psychiatric disorder is caused by or proximately due to service-connected tuberculous pleurisy. The Board finds that the medical evidence of record is presently insufficient for adjudication. A July 2016 private opinion by Dr. M.T. states that the Veteran is experiencing difficulties with a mood disorder due to tuberculous pleurisy. Though Dr. M.T. indicates that a link exists, she does not actually specify the nature of the relationship, specifically whether a mood disorder is proximately caused by or aggravated by tuberculosis pleurisy. Additionally, the record contains a March 2017 VA opinion. However, the VA examiner did not appear to provide any etiological opinion. Rather, she noted that any relation of memory loss to tuberculous pleurisy is deferred to medical evaluation and that the Veteran did not relate his anxiety/depression and sleep impairment to tuberculous pleurisy. Given the unclear phrasing of the July 2016 opinion and the March 2017 opinion, remand is warranted. On remand, a clinician should address whether an acquired psychiatric disorder is proximately caused by or aggravated by service-connected tuberculous pleurisy. Finally, any outstanding VA treatment records relating to the claims should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records relating to the claims. 2. Attempt to verify whether the Veteran was exposed to herbicides, to include any service in the Korea demilitarized zone or in Vietnam. With respect to any service in the Korea demilitarized zone, request information from the appropriate resources regarding the 531st Tactical Fighter Squadron and the 21st OMS in Misawa, Japan from July 1962 to August 1964. With respect to any service in Vietnam, request information from the appropriate sources to verify any temporary duty assignments with the 531st squadron. Attention is invited to the January 2015 article indicating that the 39th Air Division supported combat operations during the Vietnam War. 3. Attempt to verify whether the Veteran was exposed to radiation. Attention is invited to the Veteran’s March statement that he worked with and slept next to Mark 7 nuclear bombs during service in Japan and Korea, and the specific tail number of the F100 super sabre jet that he crewed on. 4. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any prostate cancer and bladder cancer. The examiner must provide the following opinions: a) Whether it is at least as likely as not related to service, to include as due to asbestos exposure or jet fuel. The examiner’s attention is invited to the July 2016 rating decision noting exposure to asbestos in service was probable based on the Veteran’s MOS as an aircraft mechanic, and the August 2015 articles noting potential correlations between asbestos and cancers of the prostate and bladder. b) If, and only if, herbicide exposure and/or radiation exposure is verified, whether it is at least as likely as not related to in-service herbicide agent exposure and/or radiation exposure. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s acquired psychiatric disorder is at least as likely as not (a) related to service, (b) proximately due to service-connected tuberculous pleurisy, or (c) aggravated beyond its natural progression by service-connected tuberculous pleurisy. The clinician should address the July 2016 private opinion by Dr. M.T. stating that the Veteran is experiencing difficulties with a mood disorder due to tuberculous pleurisy. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel