Citation Nr: 19132696 Decision Date: 04/26/19 Archive Date: 04/26/19 DOCKET NO. 15-37 383 DATE: April 26, 2019 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for degenerative disc disease claimed as L4-L5 fusion, is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from March 1964 to April 1972 and February 1978 to November 1981. This case comes before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 1. Entitlement to service connection for prostate cancer is remanded. A remand is required so that a request may be made to Joint Services Records Research Center (JSRRC) in order to search for deck records of the USS Bradley for the periods the Veteran was assigned to that ship. In this regard, the Veteran’s service personnel records, specifically an “administrative remarks document,” indicate he was assigned to the USS Bradley from March 14, 1968 to March 30, 1968, April 14, 1968 to April 24, 1968, May 5, 1968 to May 26, 1968, and June 4, 1968 to June 15, 1968. These documents are necessary in order to properly adjudicate the claim. Further documentation will assist in determining locations where the vessel was docked, and all other movements and operations conducted to verify whether the vessel was located within twelve (12) miles of Vietnam in the Gulf of Tonkin in order for the Veteran to be entitled to presumptive service connection for his prostate cancer based on exposure to Agent Orange. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). 2. Entitlement to service connection for COPD is remanded. A remand is also required to have the RO schedule the Veteran for an examination to determine whether his diagnosed COPD is the result of asbestos exposure and, if so, the etiology of his condition. See 38 U.S.C. § 5103A(d). There are four elements necessary in determining the need for a medical examination: (1) a current disability; (2) an in-service event, injury, or disease; (3) an indication that the claimed disability may be associated with the established event; and (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). The third prong, which requires the evidence of record “indicate” the claimed disability or symptoms “may be” associated with the established event, disease, or injury, is a low threshold. McLendon, 20 Vet. App. at 83. As to this claim, the Board finds the criteria set forth in McClendon have been met and that a VA examination and etiological opinion should be obtained. In this case, the Veteran contends he suffers from chronic obstructive pulmonary disease (COPD). The Veteran’s medical records indicate he has experienced symptoms of asthma, wheezing, dyspnea, bronchitis, and has been diagnosed with COPD. Therefore, the Board finds adequate evidence of a current disability satisfying the first element of the McClendon test. As it pertains to the second element, the Veteran claims his COPD is a direct result of serving as plankowner (an individual who was a member of the crew of a United States Navy ship when that ship was placed in commission) aboard the USS Simon Lake. Specifically, he contends he served as fireman apprentice in the boiler room where he helped install lagging to steam lines. The Veteran’s DD 214 confirms that he served aboard the vessel. The Veteran’s STRs indicates multiple complaints of pain in his chest and coughing. Additionally, there is documentation that he was under a medical surveillance program for exposure to asbestos and there is evidence he was likely exposed to asbestos dust. Therefore, given his STRs and assignment to the USS Simon Lake, the Board tentatively finds adequate evidence of an in-service event to satisfy the second element of the McClendon test. In regard to the third element, the Veteran claims his work in the boiler room and exposure to asbestos is the direct cause of his COPD. The Veteran’s STR, medical history, and MOS support the contention that his COPD may be associated from exposure to asbestos. Therefore, given the low threshold of the third element, the Board finds the third element of the McClendon test satisfied. As for the final element, the Board cannot make a fully-informed decision on the issue because no VA examiner has provided an examination and opined on whether it is at least as likely as not that the Veteran’s COPD stems from exposure to asbestos—thus an examination and appropriate etiological examination is warranted. 3. Entitlement to service connection for degenerative disc disease is remanded. A remand is also required to have the RO schedule the Veteran for an additional examination and etiological opinion due to the inadequacy of the previous examination. See 38 U.S.C. § 5103A(d); see also Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). As to this claim, the Board finds the criteria set forth in McClendon have been met and that a VA examination and etiological opinion should be obtained. In this case, the Veteran contends he is suffering from degenerative disc disease, claimed as a L4/L5 fusion. The Veteran’s medical records show complaints of back related issues. In November 1996, the Veteran underwent a microdiscectomy. In January 2009, an MRI was completed on the lumbar spine which indicated multilevel degenerative changes. A private examiner opined that he believed the Veteran was suffering from spondylosis and that he likely aggravated this with an injury. In February 2010, a private medical examiner conducted an evaluation involving a CT scan of the Veteran’s lumbar spine. The examiner opined that the Veteran’s examination indicated multilevel disc disease. The Veteran was afforded a VA examination in October 2012. The VA examiner diagnosed the veteran with a thoracolumbar spine condition, specifically degenerative disc disease. Therefore, the Board finds adequate evidence of a current disorder satisfying the first element of the McClendon test. As it pertains to the second element, the Veteran contends his degenerative disc disorder is directly caused by the back pain he began to experience in-service and due to his MOS. The Veteran’s STR noted multiple complaints of numbness in his left leg and that he eventually had to wear a back brace. There is also evidence in his STRs indicating complaints of pain after he fell to the deck stepping out of the shower. Therefore, the Board tentatively finds adequate evidence of an in-service event to satisfy the second element of the McClendon test. In regard to the third element, the Veteran claims his degenerative disc disease is a result of in-service events that were related to his MOS that caused him back pain and numbness in his leg. Therefore, given the low threshold of the third element and subsequent complaints of back pain and numbness in the leg during service, the Board finds the third element of the McClendon test satisfied. As for the final element, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for degenerative disc disease due to the inadequacy of the VA examination the Veteran received. In a VA examination from October 2012, the examiner opined that the Veteran’s degenerative disc disorder was less likely than not (les than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition. The examiner provided that, although there is a record of complaints of lower back pain from 1981, a diagnosis of spondylosis, and the Veteran’s experienced numbness, “the likelihood of these disorders/diagnoses have any impact on disc disease diagnosed almost 30 years later is very small.” Although the examination provided an accurate diagnosis and numerical results for the Veteran’s range of motion, it failed to take into consideration the Veteran’s lay statements and evidence of wearing a back brace while in-service. The conclusion of a medical opinion cannot be premised on the lack of evidence in service treatment records while ignoring lay statements regarding symptomology. See Dalton v. Nicholson, 21 Vet. App. 23, 39. Therefore, given the inadequacy of the 2012 VA examination, an additional VA examination is warranted. The matters are REMANDED for the following actions: 1. Contact the JSRRC, National Archives and Records Administration (NARA), or other appropriate repository, and request the deck logs for the USS Bradley for the months of March 1968 to June 1968. Include in the search all locations the vessel was docked, all movements and operations conducted to verify whether the vessel was located within twelve (12) miles of Vietnam in the Gulf of Tonkin during the specified time period. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further attempts would be futile, which should be documented in the electronic claims file. 2. Provide the Veteran with an appropriate examination to determine whether he suffers from COPD and degenerative disc disease and if so, the nature and etiology of the disabilities. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. (a) If found to have COPD, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the onset occurred in service or is caused by, or related at least in part, to exposure to asbestos exposure while aboard the USS Simon Lake. The examiner should take into consideration all lay statements provided by the Veteran. (b) If found to have degenerative disc disease, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the onset occurred in service or is caused by, or related at least in part, to a back injury related to his MOS. The examiner should take into consideration all lay statements provided by the Veteran. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher J. DeBoer, Associate Counsel