Citation Nr: 1807249 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-19 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), to include as due to in-service asbestos exposure, or in the alternative, as due to in-service exposure to ionizing radiation. 2. Entitlement to service connection for coronary artery disease, to include as secondary to service-connected hypertension, or in the alternative, as due to in-service exposure to ionizing radiation. 3. Entitlement to a compensable initial evaluation for hypertension. 4. Entitlement to service connection for degenerative bone disease, to include as due to in-service exposure to ionizing radiation. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from April 1968 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2017, the Veteran and his spouse presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. During the May 2017 Board hearing, the Veteran submitted additional evidence, in the form articles addressing high blood pressure, and waived consideration of such by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 1304 (c) (2017). In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See VBA Fast Letter 14-02. Here, the Veteran's substantive appeal for the relevant issues was filed after February 2, 2013, and the record reflects that the additional evidence was submitted by the Veteran. Nonetheless, as noted above, the Veteran also waived review by the AOJ of the additional evidence. However, the record also reflects in April 2014, subsequent to the most recent March 2014 statement of the case (SOC), issued for the appeal herein, the Veteran submitted additional private medical records. However, as noted above, the Veteran's substantive appeal for the relevant issues was filed after February 2, 2013 and such evidence was submitted by the Veteran, thus the Board may proceed with appellate review. In February 2011, the Veteran submitted an application for benefits, in pertinent part, for entitlement to service connection for high triglycerides, but it has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). The issues entitlement to service connection for coronary artery disease, to include as secondary to service-connected hypertension, or in the alternative, as due to in-service exposure to ionizing radiation, entitlement to a compensable initial evaluation for hypertension, and entitlement to service connection for degenerative bone disease, to include as due to in-service exposure to ionizing radiation, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Resolving all doubt in the Veteran's favor, the evidence demonstrates that the Veteran has COPD that is related to his active service. CONCLUSION OF LAW The criteria for service connection for COPD have been met. 38 U.S.C. §§ 1101, 1103, 1110, 1112, 1113, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's respiratory disability claim decided herein, given the grant of service connection for COPD, discussion of the impact of VA's statutory and regulatory notice and duty to assist provisions on this issue, including pursuant to 38 C.F.R. § 3.103 (c)(2) (2017) and Bryant v. Shinseki, 23 Vet App 488 (2010), is not necessary, and any deficiencies, if any exist, are harmless. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.30, 3.304 (2017). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that COPD is the result of in-service asbestos exposure, in the alterative, as indicated his February 2011 application for benefits, as due to in-service exposure to ionizing radiation. Turning to the first element of service connection, the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has a diagnosis of COPD. In this regard, a diagnosis of COPD was provided in the Veteran's private medical records and a diagnosis of COPD was also endorsed by a February 2012 respiratory conditions disability benefits questionnaire. Thus, the current disability element for COPD is established by the evidence. The Board will accordingly consider whether the Veteran's present COPD was incurred during or is related to service. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. A review of the Veteran's service treatment records does not reveal any respiratory diagnosis or complaints thereof. In this regard, the Veteran's December 1971 Report of Medical Examination, conducted in conjunction with his separation from service, found the Veteran's lungs and chest were normal upon clinical examination. However, an April 1968 service treatment record provided an impression of minimal exogenous obesity, which is relevant, because as discussed below, obesity was linked, in an August 2007 private medical record, to the Veteran's respiratory problems. Furthermore, the Veteran's military occupational specialty (MOS) of shipfitter, as noted on his DD-214 (but not specified as pipefitter or metal worker), is listed as "minimal," in terms of asbestos exposure. However, a May 1971 service personnel records documented the Veteran was assigned to the pipe shop, did all types of piping repair on nuclear submarines and surface ships and was noted to be a very capable and competent pipefitter. In this regard, the MOS of pipefitter is listed as "highly probable," in terms of asbestos exposure. In any event, either MOS reflects some probability of asbestos exposure. In addition, in statements including in April 2011 and in May 2017 testimony, the Veteran credibly and competently reported that his in-service duties included welding. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Such is significant because, as discussed below, the Veteran submitted an article which found a suggestive link between exposure to welding fumes and COPD. Thus, for these reasons, the Board finds the second element, of the incurrence of an in-service injury or disease, is met. Having carefully reviewed all evidence of record, the Board finds, for the reasons noted below, that the third requirement for service connection, competent evidence of a nexus between the Veteran's COPD, and an in-service disease or injury, has been met and there is sufficient basis to award service connection for COPD. Initially, the Board notes that in a September 2015 VA Form 646, Statement of Accredited Representative in Appealed Case, the Veteran's representative argued, in essence, that the Veteran's smoking, either prior to his active service, or during active service, was relevant. However, for claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. § 1103 (a) (West 2012); 38 C.F.R. § 3.300 (a) (2017). The Veteran filed the current claim in February 2011; therefore, to the extent that the Veteran smoked prior to or during service, the grant of service connection for COPD as due to in-service smoking is legally precluded. In this regard, a February 2012 respiratory conditions disability benefits questionnaire examiner opined that the condition claimed was less likely than not proximately due to or the result of the Veteran's service-connected condition. The February 2012 examiner stated the Veteran had at least three different possible conditions that caused his lung issues including tobacco addiction, asbestos exposure, and obstructive sleep apnea. After review of the record, the February 2012 examiner stated it was more likely that the Veteran's current lung condition requiring the use of oxygen was due to his tobacco use and COPD that resulted. The February 2012 examiner further noted the Veteran's x-ray and pulmonary function testing did not reflect a restrictive condition which would be more likely an asbestos condition. However, the February 2012 VA examiner's opinion did not address the claim on a direct incurrence basis but rather as on a secondary service connection basis. Furthermore, the February 2012 examiner's rationale did not address COPD but instead addressed a current lung condition requiring the use of oxygen, which was not identified as separate disability elsewhere in the questionnaire. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this regard, a November 2012 private medical record diagnosed, in part, severe COPD, oxygen dependent. Thus, the evidence tends to reflect the Veteran's use of oxygen is part of his COPD rather than a separate disability. However, an August 2007 private medical record noted in part, that the Veteran obviously has respiratory insufficiency which was both mild hypercarbic and also hypoxemia. The August 2007 private medical record noted the etiology of such was multifactorial and noted factors of obesity, untreated sleep apnea, and that the Veteran probably had at least some degree of COPD given his smoking. Although the Board recognizes the August 2007 private medical linked the Veteran's COPD to smoking, notably, however, such also raised the possibility of a link to obesity and untreated sleep apnea. Further, the record reflects that the Veteran has since received treatment for his obstructive sleep apnea as a February 2008 private medical record stated the Veteran loved his continuous airway pressure (CPAP) machine, which lessens such as a possible cause. Furthermore, notably, as discussed above, an April 1968 service treatment record provided an impression of minimal exogenous obesity, which also provides an etiological link to the Veteran's active service. Moreover, as noted above, the Veteran credibly reported welding as part of his in-service duties. In this regard, the Veteran submitted a February 2009 article which found in part, that current evidence was suggestive of, although not sufficient to establish, a causal link between exposure to welding fumes and COPD. However, in light of the above, the record now reflects several conceivable in-service links to COPD, other than smoking, specifically obesity, welding fumes and asbestos exposure. Additionally, although there is no opinion of record addressing a link between the Veteran's COPD and obesity and/or welding fumes, common sense indicates the plausibility of a link between such. See United States v. Vasquez, 677 F.3d 685, 692 (5th Cir. 2012) (stating that fact finders may properly use their common sense and evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings). Also, notably, the February 2012 respiratory conditions disability benefits questionnaire did actually report the Veteran had smoked since his active service but quit for a period of seven years and a period of two years, which as a significant portion of time, also diminishes smoking as an etiological cause of the Veteran's COPD. Id. In light of the above, further inquiry could be undertaken with a view towards development of the claim so as to obtain a valid nexus opinion. However, to do so in this case would only serve the purpose of obtaining negative evidence, as evidence of record tends to show the Veteran's COPD is related to his active service. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In consideration of the evidence of record, the Board finds that the Veteran's COPD is likely attributable to his active service. Additionally, the February 2012 VA examiner's opinion is inadequate for the reasons discussed above. Thus, given these facts, and when resolving doubt in the Veteran's favor, the Board concludes that service connection is warranted for COPD, and the Board need not address the claim on other theories of entitlement to include as due to exposure to ionizing radiation. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for COPD is granted. REMAND Although the Board regrets the additional delay with regard to the remaining issues, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to entitlement to service connection for coronary artery disease, in May 2017 testimony, and in other statements, the Veteran asserted his coronary artery disease was secondary to his service-connected hypertension. Specifically, he asserted that the lack of medication and/or treatment for his hypertension after his separation from service caused or aggravated his coronary artery disease. In this regard, as noted above, he submitted several articles addressing high blood pressure, which in part, reported uncontrolled high blood pressure could damage the heart in a number of ways, such as coronary artery disease. There is no medical opinion of record which addresses his claim for coronary artery disease on this basis. Thus, a remand is warranted to obtain an examination with opinion addressing coronary artery disease as secondary to the service-connected hypertension. 38 U.S.C § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Additionally, VA is obligated to obtain Social Security Administration (SSA) records if there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (2010). August 2005 and August 2007 private medical records reported the Veteran was receiving disability benefits. The Veteran's SSA records are not associated with the record nor does the record reflect an attempt has been made to obtain any such records with regard to disability benefits. The Board finds there is a reasonable possibility that any existing SSA records may be relevant to the Veteran's claim for service connection for coronary artery disease, as during the May 2017 Board hearing, the Veteran's representative asserted the Veteran's coronary artery disease impacted his ability to work. Thus, upon remand, an attempt should be made to obtain any SSA disability benefits records. See 38 U.S.C. § 5103 (c); 38 C.F.R. § 3.159 (c)(2). With respect to the appeal for a compensable initial evaluation for hypertension, when the evidence indicates that a disability has worsened since the last VA examination and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); see also Weggenmann v. Brown, 5 Vet. App. 281 (1993); Green v. Derwinski, 1 Vet. App. 121 (1991). In this regard, in May 2017 testimony, the Veteran competently reported his hypertension had worsened, as it had required a change in medication as well as an increase in medication. See Layno, 6 Vet. App. at 469. Thus, as the severity of the Veteran's hypertension may have worsened, a new VA examination for the claim is warranted. Additionally, in May 2017 testimony, the Veteran reported he received treatment, generally every three months, for his hypertension from Great Lakes Internal Medicine, located in Norton Shores, Michigan, from approximately 2010 or 2011 to the present. The record does not reflect these medical records have been associated with the claims file. Thus, the necessary authorization should be obtained from the Veteran, to obtain all relevant identified private treatment records for hypertension or for any other disability at issue. 38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159 (c)(1). Finally, the August 2012 rating decision, in pertinent part, denied entitlement to service connection for degenerative bone disease. In an April 2013 statement, the Veteran expressed disagreement, constituting a notice of disagreement (NOD), with the denial of entitlement to service connection for degenerative bone disease. The record does not reflect a statement of the case (SOC) has been issued with respect to this claim. In circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to the AOJ to direct that an SOC be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, in the circumstances presented in this case, the AOJ must issue an SOC on the issue of entitlement to service connection for degenerative bone disease, to include as due to in-service exposure to ionizing radiation. Accordingly, the case is REMANDED for the following actions: 1. Issue a SOC pursuant to the NOD received in April 2013, as to the rating decision in August 2012, which denied entitlement to service connection for degenerative bone disease, to include as due to in-service exposure to ionizing radiation. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations, and afford the appropriate period for response. Only if a timely substantive appeal is received for this issue, should the issue be forwarded to the Board for appellate consideration. 2. Contact the Veteran and request that he identify all private treatment providers, for his hypertension, and for his other disabilities at issue, to include from Great Lakes Internal Medicine, located in Norton Shores, Michigan, from approximately 2010 or 2011 to the present, and provide VA the necessary authorization to obtain all identified private treatment records. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested identified documents. 3. Obtain and associate with the record all records pertaining to the Veteran concerning a claim for disability benefits from the Social Security Administration, to include all evidence and copies of any disability determination. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 4. Obtain a medical opinion from an appropriate VA examiner for the purpose of obtaining an etiological opinion for coronary artery disease as secondary to service-connected hypertension. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that coronary artery disease is proximately due to or chronically aggravated (permanently worsened beyond the natural progression) by his service-connected hypertension. If it is found that coronary artery disease is aggravated by service-connected hypertension, the examiner should identify the baseline level of severity prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. If some of the increase in severity is due to natural progression, the examiner should identify the degree of increase in severity due to natural progression. A complete rationale for each opinion expressed must be provided. In rendering the requested opinions, the examiner should also consider the Veteran's contention that the lack of medication and/or treatment for his hypertension after service caused or aggravated his coronary artery disease. In this regard, as noted above, he has submitted articles addressing high blood pressure, which in part, reported uncontrolled high blood pressure could damage the heart in a number of ways, such as coronary artery disease, which should also be considered. If it is determined that an opinion cannot be satisfactorily determined without another clinical examination of the Veteran, such examination should be scheduled with proper notification of such provided to the Veteran. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. 5. Schedule the Veteran for an appropriate VA examination to assess the nature and severity of his service-connected hypertension. The complete record, including a copy of this remand, must be made available to the examiner and reviewed by the examiner in conjunction with the examination. Any medically indicated tests should be conducted. The examiner should identify all associated symptoms and discuss their severity and functional impact, if any, on the Veteran. A complete rationale for all opinions expressed must be provided. 6. The Veteran must be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). 7. Finally, and after undertaking any other development deemed necessary, readjudicate the issues on appeal, to include entitlement to service connection for CAD, to include as secondary to service-connected hypertension. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them appropriate opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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 or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs