Citation Nr: 18118056 Decision Date: 07/12/18 Archive Date: 07/12/18 DOCKET NO. 15-06 960 DATE: July 12, 2018 ORDER Entitlement to service connection for asbestosis is denied. REMANDED Entitlement to an initial compensable disability rating for left elbow bursitis (limitation of flexion) in excess of 0 percent from March 30, 2012 and to a disability rating in excess of 20 percent from August 17, 2015 is remanded. Entitlement to service connection for a cervical disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Asbestosis was not incurred in or aggravated by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for asbestosis are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1983 to July 1991. Asbestosis The Veteran filed a claim in March 2012 and listed various disabilities for which he was seeking service connection in one section of the form. In a different section of the form under a heading of “I would like to file a claim for other VA benefits,” he marked a box of “other” and noted asbestosis. The Veteran’s DD 214 listed a primary specialty of “HT – 5343 – Second Class Diver.” In an April 2013 VA examination request, the Agency of Original Jurisdiction (AOJ) requested a VA examination related to this claim and stated that “[t]he Veteran served as a hull technician which has a high probability of exposure to asbestos.” This presumably was in reference to a portion of VA’s Adjudication Procedures Manual (M21-1) that addresses asbestos and which includes a table describing the probability of asbestos exposure by Navy military occupational specialties (MOSs), which lists hull technician as having a high probability of exposure to asbestos. See M21-1, IV.ii.1.I.3.d. The Veteran was afforded a VA examination in April 2013 and a Respiratory Conditions Disability Benefits Questionnaire (DBQ) was completed. The only diagnosis noted was of asthma, noted to be diagnosed in childhood. Under the medical history section, it was noted that “Veteran reports that his DAV rep asked him about his possible exposure to asbestosis while in-service given his occupation as a Navy diver, and that he assumes his rep must have filed a claim for this condition as he wasn’t personally aware that he had filed a claim.” It was also noted that the “Veteran denies any physician prescribed treatments for chronic respiratory condition(s).” With respect to current respiratory symptoms, it was noted that the “the [V]eteran reports intermittent dyspnea, particularly in the Spring & with more physically strenuous activities, during which he experiences acute dyspnea and discomfort on inspiration which eventually self-resolves.” Regarding relevant past medical history, it was noted that “childhood asthma which the [V]eteran states he ‘grew out of’ and ‘wasn’t a problem’ during active duty service” and “subjectively reported lung burns of which I can find no documentation in [service treatment records (STRs)].” The results of an April 2013 chest x-ray were noted as “[n]o radiographic evidence of acute disease of the chest.” Pulmonary function testing (PFT) was also performed. The examiner stated “[n]o current clinical evidence or records[] evidence to support a diagnosis of asbestosis at this time” and that “[past medical history] is positive for childhood asthma, and [V]eteran’s current symptoms and PFT results are more consistent with that diagnosis. Thus, current assessment is probable mild, intermittent asthma.” A VA opinion was provided that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury event or illness.” The provided rationale stated: In reviewing the [V]eteran’s C File records, I was unable to find a diagnosis of asbestosis, and at the time of the exam the [V]eteran also denied having been diagnosed with this condition and stated his VA representative must have filed a presumptive claim for him given that his occupation in the military was considered a high-exposure risk. There is, unfortunately, no clinical or objective evidence to support a diagnosis of the asbestosis, the claimed condition, at this time. Chest x-ray was negative for fibrosis or other imaging findings consistent with asbestosis, and PFT findings were also inconsis[t]ent with asbestosis. And again, there is also no records evidence to support a diagnosis of asbestosis. Thus the [V]eteran less likely than not (<50/50) has service-related asbestosis at this time. Though that doesn’t negate the possibility of future development of asbestosis as typically this is a latent disease that develops decades after exposure. The remaining evidence of record did not note a diagnosis of asbestosis. VA treatment records included some reported respiratory symptoms and noted on the Veteran’s problem list “Breathlessness on exertion,” but did not note a diagnosis of asbestosis. In a May 2015 VA treatment record, it was noted that the Veteran “states that he was also told his lung issues w[]ere probably from ‘asbestos’ exposure during his Navy time.” It is not entirely clear what “lung issues” this statement was in reference to, but as will be discussed further below, the Board will construe this as a possible reference to OSA, for which a service connection claim is also on appeal. The Veteran did not report having asbestosis in any lay statements subsequent to the April 2013 VA examination, to include in the relevant notice of disagreement (NOD) or VA Form 9. The threshold requirement for entitlement to service connection to be granted is competent evidence of the current existence of a claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, competent evidence does not identify asbestosis. In sum, the Board finds that the Veteran does not have asbestosis and that any mild intermittent asthma was not incurred in or aggravated by active service. As such, the Board concludes that the criteria for entitlement to service connection for asbestosis are not met and, to this extent, the Veteran’s claim is therefore denied. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Left Elbow Bursitis (Limitation of Flexion) The Veteran filed a claim in March 2012 for an increased disability rating for his left elbow. At the time of the claim, he was service-connected for “residuals, status post-surgery of left elbow” and assigned a 10 percent disability rating under Diagnostic Code 5019-5206. The September 2013 rating decision on appeal stated that “[a] separate evaluation has been assigned for left elbow bursitis (limitation of flexion)” and assigned a noncompensable (0 percent) disability rating under Diagnostic Code 5206. The rating decision also granted an increased 20 percent disability rating under Diagnostic Code 5019-5207 for residuals, status post- surgery of left elbow. The May 2014 NOD noted disagreement with the evaluation of disability with respect to the left elbow bursitis (limitation of flexion) rating. This issue was subsequently addressed in a February 2015 Statement of the Case (SOC), to which a February 2015 VA Form 9 was filed in response. The Board notes that the Veteran is service-connected for multiple left upper extremity disabilities and rating decisions during the appeal period have variously addressed these disabilities. As outlined, the issue on appeal, though, is limited to whether an increased disability rating is warranted for left elbow bursitis (limitation of flexion). The Veteran was most recently afforded a VA examination for his left elbow in August 2015 and was also previously afforded VA examinations for this disability in February 2013 and August 2013. The United States Court of Appeals for Veterans Claims (Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing.” The prior VA examinations did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information pursuant to Correia. In addition, the August 2015 examination report noted that the Veteran reported flare-ups of the elbow. The examiner stated that “[i]t is not possible to determine without resorting to mere speculation” whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups “because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” The Court discussed in Sharp v. Shulkin, 29 Vet. App. 26 (2017) a similar opinion and rationale and found such to be inadequate. In this regard, the Court stated that “[b]ecause the VA examiner did not...estimate the [V]eteran’s functional loss due to flares based on all the evidence of record-including the [V]eteran’s lay information-or explain why she could not do so, the...examination was inadequate.” As such, while on remand, the requested VA opinion must also contain adequate information pursuant to Sharp. Also, while on remand, outstanding VA treatment records must be obtained. 2. Cervical Disability Initially, the Board notes that an April 2000 rating decision denied entitlement to service connection for a neck injury. In March 2012 the Veteran filed a claim and listed a disability (under the reopening section) of “C-3, 4 vert[e]br[a]s.” The September 2013 rating decision on appeal denied entitlement to service connection for a cervical strain and did not address the claim on a new and material basis. The Board will continue with this characterization of the claim. The Veteran was afforded a VA examination in February 2013. A diagnosis was noted of cervical spine strain, with a date of diagnosis noted of 1986. Under the medical history section, it was noted that: Veteran states that while diving in service a 200 pound ‘headache ball’ dropped on head while underwater, did not loss con[s]ci[]ousness, no laceration, [V]eteran states he returned to work with no light or limited duty, [V]eteran denies any treatment for neck condition in service, [V]eteran states knee [presumably a mistaken reference to neck] pain was intermittent over the years with progressive worsening, with flare in 1999, CT scan was performed and [V]eteran states he was told of degenerative changes, [V]eteran has been receiving chiropractor therapy [times] 3 years, is followed two times per week with minimal improv[em]ent, neck pain is constant daily. The results of diagnostic testing were noted as “[s]traightening of the cervical spine, a nonspecific finding but can be secondary to muscle spasm. Mild disc space narrowing at C5/6.” It was noted that arthritis was not documented. The examiner cited to two private medical records from Palmetto Primary Care. The first, from July 2004, noted a diagnosis of cervical strain and referenced MRI results noting a cervical spine compression at C3/4. The primary care record also stated, “pain to the neck…which resulted years ago was hit on head and it ‘jammed’ his neck, and which occurred weeks ago.” The second, from August 2011, noted a CT scan of the neck was negative (following a motorcycle accident). The examiner provided an opinion that “[i]t is my opinion that the [V]eteran’s cervical spine strain is less likely than not [related to] military service, as there are no clinical or objective documentation of a cervical condition noted in c-file review with service dates 1983-1991.” Upon review, the Board finds that remand is required for a new VA examination and opinion. The February 2013 negative VA opinion include a rationale that, essentially, relied entirely on the lack of “clinical or objective documentation of a cervical condition” in the Veteran’s STRs. As noted on the examination report, the Veteran reported that a 200-pound ball dropped on his head while underwater during service and the Veteran also “denie[d] any treatment for neck condition in service,” so clinical or objective documentation of a cervical condition would not be expected in the STRs. Overall, it appears that the examiner “impermissibly ignored the [Veteran’s] lay assertions that he had sustained” a neck injury during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, remand is required for a new VA examination and opinion, as outlined further in the remand directives below. The Board also notes that a March 1991 STR noted a complaint of headaches, which were noted to start at the forehead and move to the back of the neck. Upon physical examination, the neck was noted to have full range of motion with minor pain. An assessment was noted of rule out stress headaches. The examiner’s attention will be invited to this note. In addition, the Veteran was a diver during his active service, which is documented on his most recent DD 214 and various service personnel records. In a July 2013 statement, the Veteran stated that “[i]n my time of service I logged hundreds of underwater h[ou]rs and num[e]rous injur[ie]s related and con[n]ected to diving.” The Board notes that a specific section of the M21-1 relates to diving related disabilities. See M21-1, IV.ii.2.K.5. The M21-1 lists osteoarthritis as a disability “that may be associated with a history of diving” and states that “[m]any conditions will be reported in the [STRs]; however, some, such as…arthritis, do not appear immediately and may not have been reported in service.” Based on the information in the M21-1, the examiner’s attention will be invited to the Veteran’s in-service diving history. 3. OSA The evidence of record, to include VA treatment records variously noted a diagnosis of OSA. On a May 2015 Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran listed multiple service-connected disabilities that prevented him from securing or following any substantially gainful occupation and listed “sleep apnea (related to: Asbestos).” As noted above, the AOJ and the M21-1 indicated that the Veteran’s MOS had a high probability of exposure to asbestos. In addition, a September 1990 STR noted, for the period from November 1987 to July 1990, a potential hazard exposed to of asbestos, with the notation of “[p]ainting in an area with asbestos for 1 h[ou]r”). Also, as noted above, in a May 2015 VA treatment record, it was noted that the Veteran “states that he was also told his lung issues w[]ere probably from ‘asbestos’ exposure during his Navy time.” Presumably the Veteran was told this information by a medical professional and, while not entirely clear, the Board will construe this as a possible reference to OSA. Overall, based on the Veteran’s current diagnosis of OSA, his highly probable exposure to asbestos during his active service and his report of being told his lung issues were “probably from ‘asbestos’ exposure,” the Board finds that remand is required for a VA examination and opinion, as outlined further in the remand directives below. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. TDIU Initially, the Veteran’s TDIU claim is inextricably intertwined with the other claims being remanded and must therefore also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran noted left elbow bursitis (limitation of flexion) and sleep apnea on the May 2015 Form 21-8940 as service-connected disabilities that prevented him from securing or following any substantially gainful occupation. As such, the TDIU claim is intertwined with these claims. In addition, on the May 2015 VA Form 21-8490, the Veteran reported that he became too disabled to work in March 2012. However, April and May 2015 VA treatment records noted that the Veteran owned a coffee shop and a May 2016 VA treatment record referenced calling the Veteran when “he was at work.” As such, while on remand, the Veteran must be contacted and asked to clarify his work history. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to clarify his work history from May 2015 to the present. 2. Obtain the Veteran’s VA treatment records for the period from May 2016 to the present. 3. Afford the Veteran an appropriate VA examination to determine the severity of his left elbow disability. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing or finds that this testing is medically inappropriate in this case, he or she should clearly explain why that is so. Further, the examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran. The examiner must either estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the Veteran’s lay information or explain why he or she cannot do so. The examiner’s determination in this regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 4. Afford the Veteran a VA examination with respect to his cervical disability claim. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any cervical disability had its onset during active service or is related to any in-service disease, event, or injury, to include the Veteran’s report (in the February 2013 VA examination report) that “while diving in service a 200 pound ‘headache ball’ dropped on head while underwater” or a March 1991 STR that noted upon physical examination minor neck pain. While review of the entire claims file is required, attention is invited to the Veteran’s report at the February 2013 VA examination that following the reported in-service incident of a 200-pound ball being dropped on his head that “pain was intermittent over the years with progressive worsening.” Additional attention is invited to the Veteran’s July 2013 report of “logg[ing] hundreds of underwater h[ou]rs,” that the M21-1 lists osteoarthritis as a disability “that may be associated with a history of diving” and the Veteran’s report at the February 2013 VA examination to being told following a 1999 CT scan that he had degenerative changes. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 5. Afford the Veteran a VA examination with respect to his OSA claim. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that OSA had its onset during active service or is related to any in-service disease, event, or injury, to include highly probable exposure to asbestos. While review of the entire claims file is required, attention is invited to a May 2015 VA treatment record that noted that the Veteran “states that he was also told his lung issues w[]ere probably from ‘asbestos’ exposure during his Navy time,” which the Board will construe as a possible reference OSA. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel