Citation Nr: 18156419 Decision Date: 12/10/18 Archive Date: 12/07/18 DOCKET NO. 16-61 807 DATE: December 10, 2018 REMANDED Entitlement to service connection for a pulmonary disorder, to include chronic obstructive pulmonary disorder (COPD) is remanded. REASONS FOR REMAND The Veteran had active service from June 1959 to May 1963. He died in February 2013, and his wife has been substituted in this appeal. 1. Entitlement to service connection for a pulmonary disorder is remanded. Prior to his death, the Veteran sought service connection for a pulmonary condition, to include COPD. He contended that his pulmonary condition was proximately due to or aggravated by in-service asbestos exposure. The Veteran’s service records are silent as to treatment for a pulmonary condition. He identified constant asbestos exposure while serving as a Torpedoman (TM3) aboard the USS Forrest B. Royal in the Navy as the cause of his pulmonary condition. The Veteran had current pulmonary diagnoses, including COPD, at the time of his death. Military personnel records confirmed military tasks of assisting leading torpedoman in matters concerning “tube-launched torpedoes, asroc and dash.” He handled the bulk of administrative work, including publications and supply. See military personnel record uploaded on March 5, 2012. In April 1993, the Veteran received a hospital chest x-ray that demonstrated abnormal density in the right lower lung suggestive of pneumonia and/or atelectasis. There were also some increased densities seen at the left base. The Veteran’s lung age was that of 94 years old. Pulmonary testing completed in December 2007, November 2008 and again in January 2010 revealed that the Veteran’s diffusing capacity had reduced, indicating parenchymal or vascular abnormality. The Veteran had an abnormal study conducted in April 2011 that showed a restrictive process without response to a bronchodilator. The examiner noted deterioration in FEV1 and FVC. In April 2011, private examiner Dr. J.A. indicated that the Veteran had a history of emphysema and pulmonary fibrosis with cavitary lesions complicated with pneumonias-abscesses and recent diagnosis of MAI disease; he smoked one pack of cigarettes for 35 years and stopped in 1993; a CT scan of his chest showed enlargement of the pulmonary artery; and concluded that he had baseline advanced lung disease secondary to pulmonary fibrosis and emphysema complicated with hypoxemia and respiratory insufficiency. In February 2012, private examiner Dr. K.P.F. opined that it was more likely than not that the Veteran had asbestosis with a severe physiological impairment in his lung function. He noted that the Veteran had a pulmonary infection with Mycobacterium avium complex (MAC), and his major risk factors for his infection was his underlying COPD and probable asbestosis. The asbestosis diagnosis was made on the basis of the Veteran’s strong history of exposure to asbestos while in the Navy, his physical examination notable for bilateral rales, and his imaging studies demonstrating lower lobe fibrosis. The examiner indicated that the latter was not a typical finding in either COPD or in pulmonary MAC infections. Dr. K.P.F. noted that he reviewed the Veteran’s imaging studies with one of their chest radiologists, who agreed that the findings were consistent with asbestosis, i.e., pulmonary fibrosis or scarring due to inhalation of asbestos fibers. In July 2012, private examiner Dr. J.M.G. indicated that the Veteran had severe pulmonary hypertension, secondary to a diagnosis of asbestosis, which could have been caused by his prolonged exposure during his U.S. military service in the Navy. An August 2012 VA examiner indicated that the Veteran’s pulmonary condition consisted of diagnoses of mild-moderate mixed obstructive and restrictive lung disease, COPD with fibrotic and bullous emphysema, chronic atypical pneumonia, and there was no objective evidence of “asbestosis.” The examiner indicated that a more precise diagnosis cannot be rendered as there was no objective data to support a more definitive diagnosis. The examiner also noted that, although the Veteran’s private physician stated that he more likely than not had asbestosis with severe physiological impairment in his lung, the Veteran worked as a laborer for 5 years in construction after service and suffered significant pulmonary conditions over the years. The etiology of his fibrosis was unknown and speculative. Imaging studies did not show any significant pleural disease. The examiner indicated that medical literature shows that pleural involvement is a hallmark of asbestos exposure. The PFT results mentioned were consistent with his current lung conditions at the time of the examiner; thus, there was no objective evidence of asbestosis and a nexus could not be made. The Veteran died in February 2013, and the causes of death noted on his death certificate were, Part I: cor pulmonale, end stage COPD and asbestos; Part II: other significant conditions contributing to death but not resulting in the underlying cause given in Part I. For the question of “Did tobacco use contribute to death?” the answer noted was “probably.” A subsequent October 2016 VA opinion opined that the Veteran’s COPD condition was less likely than not incurred in or caused by in-service asbestos exposure. The examiner reasoned that there was sufficient information to conclude that the Veteran had asbestosis from a review of the submitted medical records seen. However, there was no conclusive information that the Veteran’s COPD arose from his asbestosis from those sites. Instead, the examiner noted that there are distinct differences between the two conditions, such as: 1) there are different risk factors and areas of involvement separating COPD from asbestos related lung diseases – COPD is characterized by airflow limitation that is not fully reversible (cigarette smoking), involving bronchial tubes and alveoli, and asbestosis exposure involves the lung tissue itself in the form of significant interstitial lung fibrosis, unlike COPD; and 2) asbestosis from asbestos exposure results in the development of a restrictive disease rather than an obstructive pattern seen in COPD and, thought the Veteran did have the presence of a restrictive component in his PFT’s, there was also a considerable obstructive component as well. The examiner concluded that the Veteran’s antecedent considerable smoking exposure would have placed him at a considerable risk for his COPD development. While the October 2016 examiner’s statement indicated that the Veteran’s smoking exposure “would have placed him at a considerable risk for his COPD development,” it did not state whether this Veteran’s claimed disability of a pulmonary condition is “at least as likely as not” related to asbestos exposure in service, a standard that requires only a 50 percent probability. Neither did the opinion consider the articles in support of the appellant’s claim, submitted by her representative in December 2016. The matter is REMANDED for the following action: 1. Provide the claims file to a VA examiner for review. The examiner is asked to do the following: Please list all pulmonary conditions that the Veteran’s medical records indicate he was diagnosed with prior to his death. Please answer the following. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s pulmonary condition had its onset in, or is otherwise related to the Veteran’s period of active duty service, to specifically include his exposure to asbestos while working as a Torpedoman aboard the USS Forrest B. Royal? In providing a response, please consider and comment upon the Veteran’s assertions, the statement provided by the appellant (who is a registered nurse), the Veteran’s smoking history, Dr. K.P.F.’s February 2012 private opinion, Dr. J.M.G.’s July 2012 private opinion, the August 2012 VA examination and opinion, the death certificate issued in February 2013, and the October 2016 VA opinion. (Continued on the next page)   2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel