Citation Nr: 19177815 Decision Date: 10/10/19 Archive Date: 10/09/19 DOCKET NO. 17-41 546 DATE: October 10, 2019 ISSUES 1. Entitlement to service connection for lung disease, to include as due to exposure to asbestos. 2. Entitlement to service connection for pneumonia, to include as due to exposure to asbestos. 3. Entitlement to service connection for chronic bronchitis, to include as due to exposure to asbestos. REMANDED Entitlement to service connection for lung disease, to include as due to exposure to asbestos is remanded. Entitlement to service connection for pneumonia, to include as due to exposure to asbestos is remanded. Entitlement to service connection for chronic bronchitis, to include as due to exposure to asbestos is remanded. REASONS FOR REMAND The Veteran had active service in the Navy from February 1968 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for lung disease and chronic bronchitis, each to include as due to exposure to asbestos is remanded. The Veteran is claiming that he has a diagnosis of lung disease and/or chronic bronchitis, and that each are due to his military service. Specifically, he wrote in his November 2015 Notice of Disagreement (NOD) that his ship’s main mission was to make repairs on submarines, particularly nuclear-powered submarines. In performance of my duties, I’d have to go down into the submarines and crawl around in the bilges to make repairs, all pipes were covered with asbestos. In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v Brown, 4 Vet. App. 523 (1993), McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure M21 1,VBA Adjudication Procedure Manual M21 1, part IV, Subpart ii, Ch 2, Section C (November 4, 2016). In this regard, the M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (b). The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (d). The Veteran also wrote in his NOD that while in the Navy from 1968 to 1971 he was stationed on the USS Simon Lake, and that he worked “as an electrician’s mate.” The Veteran’s military personnel record confirms that he worked as an electrician’s mate, and that he was assigned to the USS Simon Lake. This profession arguably fits within the designated list of occupations that have higher incidents of asbestos exposure, as it broadly involves “work in shipyards … construction, manufacture and servicing … and military equipment.” See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (d). Having said that, a formal finding of asbestos exposure has not yet been found by the RO. Furthermore, it is unclear if the Veteran has a current diagnosis to either of his claimed disabilities. The Veteran wrote in December 2014 that he has been “treated for chronic bronchitis … ever since, [including] my first year home after discharge, with my lung problems and symptoms getting progressively worse over the years.” The Veteran’s medical records do not indicate that the Veteran has a current diagnosis of chronic bronchitis. A medical note from April 2015 notes a “past medical history” of chronic obstructive lung disease, yet it is unclear if this has been confirmed, or if it is a medical history provided by the Veteran. Furthermore, a medical note from April 2017 notes “chronic obstructive pulmonary disease,” (COPD) which the Board recognizes as similar to the lung disabilities that the Veteran has claimed. Having said that, the Veteran has not been afforded a VA examination to assess the etiology to either his claimed lung disease and/or chronic bronchitis, should such diagnoses exist. This has also been stated by the Veteran’s Representative in an October 2019 Informal Hearing Presentation (IHP), whereby it was argued that the Veteran “has not yet received a VA exam to determine whether his claimed conditions are service connected … we ask the Board to remand this case to the AOJ and order it to schedule a C&P exam to determine whether the Veteran’s disabilities at issue are truly service connected.” VA’s duty to assist in a Veteran’s claim includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159 (c)(4). Therefore, in consideration of the request of the Veteran’s Representative, and in consideration of the VA’s Duty to Assist in developing the Veteran’s claim, this claim must be remanded to the RO for additional development. 38 C.F.R. § 3.159. Thus, in consideration of VA’s duty to assist and the request of the Veteran’s Representative, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. A VA medical examination and medical opinion are required by VA’s duty to assist the Veteran in developing evidence to substantiate his claim to service connection. 2. Entitlement to service connection for pneumonia, to include as due to exposure to asbestos is remanded. The Veteran has also claimed that he has a current disability of pneumonia, which he attributes to his military service. The Veteran has also claimed that this may be due to his exposure to asbestos aboard the USS Simon Lake. He also however points to an event in service whereby “the first time [he] had pneumonia it was in 1969 … I was in sickbay on the ship for 6-8 weeks,” and that he has been treated for pneumonia since returning from active duty. Again, he has claimed in December 2014 that “my lung problems and symptoms [are] getting progressively worse over the years.” The Veteran’s service treatment records include a record from June 1969 that indicate he was hospitalized for approximately twelve days. While the admission diagnosis was acute bronchitis, the Veteran’s discharge diagnosis was pneumococcal pneumonia. Thus, the in-service illness can be confirmed. Regarding a current diagnosis, the Veteran’s claims file includes a medical note from November 2011. That note indicates that the Veteran “was recently hospitalized for pneumonia … the patient continued to get worse, having extreme shortness of breath in spite of using his inhaler with coughing up bloody sputum, at times with yellow along with fever and chills … past history includes pneumonia.” The initial impression of pneumonia was then confirmed by diagnosis. A follow up exam for pneumonia eight days later found “COPD. Probably bibasilar scarring with associated costophrenic angle scarring versus minimal pleural effusions. No focal pneumonia.” The medical evidence does not include a more recent diagnosis of pneumonia. Therefore, it is unclear if the Veteran has a current diagnosis of pneumonia, or if his previous diagnosis has been cured. Having said that, the Veteran has not been afforded a VA examination to determine the etiology of any diagnosed pneumonia. As noted above, this has also been argued by the Veteran’s Representative in an IHP from October 2019. Thus, in consideration of the request of the Veteran’s Representative, and in consideration of the VA’s Duty to Assist in developing the Veteran’s claim, this claim must be remanded to the RO for additional development. 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Take appropriate action to verify the Veteran’s claimed in-service asbestos exposure aboard the USS Simon lake. If the claimed asbestos exposure cannot be verified, a written statement to that effect should be prepared and incorporated into the record. 2. Obtain any relevant and outstanding VA treatment records. Should they exist, associate them with the electronic claims file. 3. Schedule the Veteran for a VA examination with an appropriate clinician, to provide an opinion regarding the etiology of the claimed lung disabilities, to include as due to the Veteran’s asserted exposure to asbestos. The examiner must note that the claims file was reviewed, and that the lay statements of the Veteran were addressed. After reviewing the claims, the examiner should opine as to the following: (a.) Does the Veteran have a current lung disability, to include lung disease, chronic bronchitis, pneumonia, and/or any other lung disability? (b.) For any/all diagnosed lung disabilities, is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s lung disability is related to his active duty service? The examiner’s attention is drawn to the Veteran’s in-service hospitalization in June 1969, which includes an admission diagnosis of acute bronchitis, and a discharge diagnosis of pneumococcal pneumonia. (c.) If and only if the Veteran’s exposure to asbestos can be verified by the RO, for any/all diagnosed lung disabilities, is it at least as likely as not that the Veteran’s lung disability is related to his asserted exposure to asbestos in service? For any/all disabilities, note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay statement must be considered and weighed in making the determination as to whether a nexus exists between service and the currently disabilities. To that end, in rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran’s assertions of in-service occurrences. Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After completing any further development deemed necessary, readjudicate the remaining claims. If any benefit on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and allow an appropriate time for response. Thereafter, the case should be returned to the Board, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.