Citation Nr: 19150366 Decision Date: 06/27/19 Archive Date: 06/27/19 DOCKET NO. 14-28 897A DATE: June 27, 2019 ORDER Entitlement to service connection for a lung disease claimed as asbestosis is granted. REMANDED Entitlement to service connection for degenerative joint disease, (DJD) left knee is remanded. Entitlement to service connection for DJD left ankle is remanded. Entitlement to service connection for depressive disorder is remanded. Entitlement to service connection for hiatal hernia is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT The evidence is in equipoise as to whether the Veteran has a diagnosed lung disease of asbestosis as the result of in-service exposure to asbestos. CONCLUSIONS OF LAW The criteria for service connection for asbestosis have been met. 38 U.S.C. §§1110, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303. (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to October 1976. This appeal comes before the Board from an April 2012 rating decision that denied service connection for a respiratory disorder claimed as asbestosis. He filed a notice of disagreement (NOD) in May 2012; a statement of the case (SOC) was issued in August 2014 and a VA Form 9 substantive appeal was received later in August 2014. This appeal regarding hiatal hernia, GERD and depressive disorder comes before the Board from a November 2012 rating; a NOD was filed in January 2013; a SOC was issued in August 2014 and a VA Form 9 was filed later in August 2014. Finally, this appeal of the left knee and left ankle issues comes from a May 2014 rating decision; a NOD was filed in the same month, a SOC was issued in November 2015 and a VA Form 9 was filed in December 2015. The Veteran attended a hearing held before a DRO in July 2015 and before a VLJ in August 2016 who has since left the Board. He was advised that the VLJ is no longer available in a February 2018 letter but did not request another hearing. A transcript of this hearing is associated with the claims file per VACOLS. The Board notes that there is a perfected appeal of a September 2016 rating that denied service connection for cancer. The Veteran has requested a Board hearing for this matter and a scheduled hearing for this issue that was to have been held on May 20, 2019 has been postponed. Because this matter is awaiting a hearing this issue is not yet ripe for review by the Board. Likewise, the Veteran filed a NOD in October 2018 with a June 2018 rating decision that denied entitlement to compensation under 38 U.S.C §1151 for additional eye disability caused by VA treatment; and denied service connection for staph infection, post-surgery carpal tunnel, knee, and collar bone. This matter is being developed by the RO and is not ripe for Board review. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§1110, 1131; 38 C.F.R. § 3.303. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C.A. §1113 (b); 38 C.F.R. § 3.303 (d); Cosman v. Principi, 3 Vet. App. 503 (1992). The Veteran asserts that he currently has a lung disease that has manifested as a result of his period of active service, to specifically include as a result of exposure to asbestos while serving on a Navy ship. At his April 2016 hearing he described having breathing problems due to asbestos exposure aboard ship. He described his duties aboard ship as having wrapped steam pipes with asbestos wraps. The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1, and opinions of the United States Court of Appeals for Veterans Claims (Court) and VA General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans’ Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual. 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 M21-1 provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Diagnostic indicators include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2 (g). A service connection claim must be accompanied by evidence establishing that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). See also Romanowsky v. Shinseki, 26 Vet. App. 303 (2013) (to the effect that where a disease or disability is diagnosed proximate to the current appeal period, but not currently, the Board is required to determine whether the earlier diagnosis was inaccurate, or the previously diagnosed condition had gone into remission). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board concludes that the Veteran has a current lung disability that is as likely as not related to in-service exposure to asbestos. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service personnel records show that the Veteran’s military occupational specialty (MOS) was electrical mechanical equipment repairman and he served aboard the U.S.S. L.Y. Spear. This MOS has been conceded by the VA in the August 2014 statement of the case (SOC) to involve duties that probably lend to exposure to asbestos. Service treatment records (STRs) do not show a diagnosed chronic lung disorder, although acute episodes of treatment for respiratory symptoms are shown including in December 1973 when he was treated for dry hacking cough and breathing problems treated as bronchitis and a URI with runny nose and cough treated in July 1975. His lungs were normal on separation examination in October 1976. Evidence of a disability was first shown in VA records from August 2004 when he was referred to the Pulmonary Clinic due to abnormal CXR and CT scan findings. A history of chronic cough and intermittent hemoptysis for nearly 10 years was noted. He reported dyspnea on exertion (DOE) and stated that he could walk about one city block before having to stop to catch his breath. This had been of gradual onset and progression. He had daily sputum that he describes as thick and yellow on occasion and occasional soaking sweats and severe fatigue that limits his activities. Following review of CT and X-rays, he was assessed with multiple small non-calcified parenchymal pulmonary nodules and abnormal soft tissue density in the right hilar region mediastinal adenopathy symptoms suggestive of COPD. After undergoing a bronchoscopy, he was diagnosed with right hilar adenopathy and small nodules. On follow up, in November 2004 the pulmonary clinic assessed him with mediastinal adenopathy of unclear etiology. Follow-up CT imaging two years later in June 2006, disclosed a stable appearance when compared with prior studies dating back to July 2004, with such stability over two-year interval suggesting a benign nature of noncalcified parenchymal nodules and mediastinal and hilar adenopathy. A January 2007 note which disclosed ongoing complaints of chronic cough and hemoptysis, noted pulmonary function test findings from August 2004 with normal spirometry, normal lung volumes and normal diffusing capacity and no acute symptoms at the time. Meanwhile per a January 2013 note, August 2007 PFTs were interpreted as a suboptimal test performance with mild restriction suggested which may be related to test performance, with good bronchodilator response and normal diffusion capacity. Subsequent records, with CTs and X-rays continued to show evidence of stable lung findings, coupled with subjective complaints of symptoms including low energy and lung pain. Of note January 2016 records disclosed his complaints of lung pain and concerns of possible disease from asbestos exposure including possible mesothelioma, with X-ray findings showing no significant findings on x-ray dating back to 2004, and no suspicious abnormalities noted or reported that warrants any type of biopsy, which the Veteran had requested. Chest CT scans from June 2016 had a stable appearance when compared to studies from February 2015 and July 2006. In particular, fully calcified and other scattered noncalcified parenchymal nodules were re-demonstrated and stable compared with the July 2006 examination. Given the stability over this period these nodules were considered benign based on imaging criteria. Likewise, findings of mediastinal and bilateral hilar adenopathy and other nonenlarged lymph nodes were re-imaged and stable. None of these records clearly ruled in or ruled out whether the findings were manifestations asbestos exposure. The question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence in favor of the claim includes a favorable opinion from a G.C., MD dated in April 2007 that based on a review of the Veteran’s work history, medical history and a B-reading of chest X-ray that shows bilateral interstitial fibrosis and physical exam, his opinion within a reasonable degree of medical certainty is that the Veteran does have asbestosis. Among the records containing this opinion was an October 2007 PFT showing severe restriction pre-medicine. The evidence against the claim includes a March 2012 VA examination that noted his MOS of electrical mechanical equipment repairman was associated with a probable probability of exposure to asbestos. He was noted to have worsening shortness of breath and tiredness starting in 2000, a history of coughing up blood in 1974 in service and a 30-year smoking history. The examiner gave a negative opinion that the Veteran’s claimed disability was less likely than not related to asbestos exposure in service noting that X-ray revealed hyperinflation which is consistent with COPD due to long history of smoking. X-ray did not show sign of asbestos disease or exposure. The examination did not include pulmonary function testing. Upon review of the record, the Board finds the evidence to be in equipoise as to whether the Veteran’s current pulmonary disability that is the result of asbestos exposure in service. The favorable opinion finding that the Veteran has asbestosis is supported by adequate rationale. Meanwhile the unfavorable opinion from the March 2012 VA examination did not include a complete testing as the PFTs were not conducted, nor did the examiner address the favorable evidence. None of the other medical evidence of record directly contradicts the favorable opinion. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a claimed asbestosis disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. DJD left knee is remanded. The Veteran contends that service connection is warranted for DJD of the left knee. At his August 2016 hearing he described falling while walking on a plank on a ship during rough weather when the ship was tossing. He indicated that he struck the knee and it began swelling and was bruised immediately. He indicated that the accident was not recorded in the STRs but that he had fluid removed multiple times with a needle while aboard ship. He indicated he had knee problems ever since and still has symptoms where the knee gives out causing falls. Further development of this matter is necessary. The report of a March 2014 VA examination determined that the current diagnosis of mild DJD involving the left knee is less likely than not related to service finding that it began after service. The examiner noted that the STRs did not include treatment for the left knee and also noted that there was a request note for Portsmouth Naval Hospital for release of medical records but no records in VBMS. See 76 pg. VAX at pg. 13. A review of the procedural history discloses that in an April 2013 VCAA letter, a specific request for records from Portsmouth Naval hospital has been submitted and that STRs from time period 1974-1976 were received. Later a PIES search for 1976 Portsmouth Naval records indicated they were not found, per pies request received 12/30/13. The Veteran’s attorney acknowledged that these records from his period of active duty were missing at his August 2016 hearing. Transcript pg. 5-8. However the Board notes that if complete service department records are not obtained, upon VA a heightened duty to assist the claimant in developing the claims. This includes ensuring the Veteran receives adequate notice of the alternate documents that might substitute for missing STRs, and this must be remedied prior to final appellate review. See VBA Adjudication Manual M21-1.III.iii.2.E.2.b. Further, it is not clear whether the PIES search included a direct attempt to contact the Portsmouth Naval Hospital for the records, nor does it appear that the Veteran was provided information regarding alternate sources for such records. Thus, another attempt to obtain these records or records from alternate sources should be made. Furthermore regardless of the outcome of the attempt to obtain these records, an addendum VA examination opinion should be obtained that considers the Veteran’s lay testimony regarding the fall aboard ship which he alleged injured his knee. Finally the Board notes that there is evidence that he has filed a claim for Social Security benefits based on disability, although the nature of the disability or disabilities is not clear beyond a claimed psychiatric disorder. At his August 2016 hearing, the Veteran’s attorney noted that there is of record a psychiatric disability examination for Social Security purposes. . See also Correspondence dated 11/30/16. An attempt should be made to obtain complete SSA records pertinent to this matter. Additionally, although there are large volumes of VA records currently associated with the claims file, an attempt should be made to obtain the most recent VA records pertinent to this claim, which would be after June 18, 2018. 2. Left ankle disability remanded. The Veteran contends that service connection is warranted for a left ankle disability. At his August 2016 hearing he described injuring the ankle playing football in service and his attorney indicated that the missing Portsmouth Naval hospital records would show treatment for this injury. The Veteran described ongoing symptoms in the ankle after service and indicated having private treatment for it. Further development of this matter is necessary. As discussed in detail in the remand explanation for the left knee disorder, an attempt must be made to obtain potentially pertinent records. This includes ensuring the Veteran receives adequate notice of the alternate documents that might substitute for missing STRs, in this case the missing 1976 Portsmouth Naval hospital records, if further attempt to obtain these records proves unsuccessful. Additionally, an attempt should be made to obtain complete SSA records pertinent to this matter as well as the most recent VA records pertinent to this claim, which would be after June 18, 2018. Further, the report of a March 2014 VA examination determined that the current diagnosis of mild DJD involving the left ankle is less likely than not related to service, and more likely is age related. However, this examination did not include consideration of the Veteran’s lay testimony of continued symptoms after his claimed football injury and an addendum VA examination opinion should be obtained that considers such lay evidence. Further development of this matter is necessary. As discussed in detail in the remand explanation for the left knee disorder, an attempt must be made to obtain potentially pertinent records. This includes ensuring the Veteran receives adequate notice of the alternate documents that might substitute for missing STRs, in this case the missing 1976 Portsmouth Naval hospital records, if further attempt to obtain these records proves unsuccessful. Additionally, an attempt should be made to obtain complete SSA records pertinent to this matter as well as the most recent VA records pertinent to this claim, which would be after June 18, 2018. 3. Depressive disorder is remanded. The Veteran contends that service connection is warranted for a psychiatric disability claimed as depressive disorder. At his August 2016 hearing his representative argued that this is secondary to service connected disorders that include carpal tunnel syndrome, residuals of a broken left arm, and wrist problems. His representative noted that a private psychiatric report was actually for Social Security purposes and suggested that an etiology opinion should be obtained. Further development of this matter is necessary. As discussed in detail in the remand explanation for the left knee disorder, an attempt must be made to obtain potentially pertinent records. This includes ensuring the Veteran receives adequate notice of the alternate documents that might substitute for missing STRs, in this case the missing 1976 Portsmouth Naval hospital records, if further attempt to obtain these records proves unsuccessful. Additionally, an attempt should be made to obtain complete SSA records pertinent to this matter as well as the most recent VA records pertinent to this claim, which would be after June 18, 2018. Furthermore, another VA examination must be obtained to ascertain the nature and etiology of his current claimed psychiatric disorder, particularly in light of the Board’s grant of service connection for asbestosis. An October 2012 VA examination determined that the Veteran did not meet the criteria for a mental disorder However, since the time of this examination there is evidence of treatment for a current psychiatric disorder including the VA records showing a diagnosis of depression given in September 2016 and the apparent private examination for SSA diagnosing Major Depressive Disorder (MDD) with agoraphobia Thus, a VA psychiatric examination should be obtained to ascertain the etiology of his claimed disorder. Additionally although service connection is claimed on a secondary basis, the examiner should also consider the STR showing a diagnosis of situational depression in March 1974 and address this matter on a direct basis as well. 4. GERD is remanded. The Veteran contends that service connection is warranted for GERD. He is shown to have this diagnosis in VA treatment records. At his August 2016 hearing his attorney pointed out that the missing STRs from Portsmouth Naval Hospital greatly impact this issue as he was hospitalized for the same symptoms that he now has. At that time he was hospitalized for throat pain and fed all kinds of food he had difficulty swallowing. He testified that he presently still has issues with swallowing certain foods and vomits the food. His representative pointed out the contradictory findings in the October 2012 VA examination’s GERD etiology opinion where the examiner said it was diagnosed in 1974 (during a period of active duty) then provided an unfavorable opinion that he doesn’t have a diagnosis in service. Further development of this matter is necessary. As discussed in detail in the remand explanation for the left knee disorder, an attempt must be made to obtain potentially pertinent records. This includes ensuring the Veteran receives adequate notice of the alternate documents that might substitute for missing STRs, in this case the missing 1976 Portsmouth Naval hospital records, if further attempt to obtain these records proves unsuccessful. Additionally, an attempt should be made to obtain complete SSA records pertinent to this matter as well as the most recent VA records pertinent to this claim, which would be after June 18, 2018. Further, as pointed out by the Veteran’s attorney the report of an October 2012 VA examination is noted to have somewhat contradictory statements, when the examiner said that GERD was diagnosed in 1974 and then said later it was not diagnosed in-service. Thus, an addendum opinion should be obtained to clarify this matter and also should consideration of the Veteran’s lay testimony of similar symptoms in service to those symptoms reported after service that are attributed to GERD. 5. Hiatal hernia is remanded. The Veteran contends that service connection is warranted for a hiatal hernia. He is shown to have this diagnosis in VA treatment records. At his August 2016 hearing his attorney pointed out that the missing STRs from Portsmouth Naval Hospital greatly impact this issue as he was hospitalized for the same symptoms that he now has. At that time he was hospitalized for throat pain and fed all kinds of food he had difficulty swallowing. He presently still has issues with swallowing certain foods and vomits the food. His representative pointed out the contradictory findings in the October 2012 VA examination’s hiatal hernia etiology opinion where the examiner said it was diagnosed in 1974 (during a period of active duty) then provided an unfavorable opinion that he doesn’t have a diagnosis in service. Further development of this matter is necessary. As discussed in detail in the remand explanation for the left knee disorder, an attempt must be made to obtain potentially pertinent records. This includes ensuring the Veteran receives adequate notice of the alternate documents that might substitute for missing STRs, in this case the missing 1976 Portsmouth Naval hospital records, if further attempt to obtain these records proves unsuccessful. Additionally, an attempt should be made to obtain complete SSA records pertinent to this matter as well as the most recent VA records pertinent to this claim, which would be after June 18, 2018. Further, as pointed out by the Veteran’s attorney, the report of an October 2012 VA examination is noted to have somewhat contradictory statements, when the examiner said that a hiatal hernia was diagnosed in 1974 and then said later it was not diagnosed in-service. Thus an addendum opinion should be obtained to clarify this matter and also should consideration of the Veteran’s lay testimony of similar symptoms in service to those symptoms reported after service that are attributed to a hiatal hernia. The matters are REMANDED for the following action: 1. Take the appropriate steps to ensure that complete STRS and SPRs are of record including any 1976 Portsmouth Naval records. If not, contact the Veteran and advise him that he can submit alternate evidence to substitute for his missing STRs. 2. The RO should contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the Veteran’s records regarding SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. 3. All pertinent treatment records not yet obtained, including VA treatment records from the VA Medical since June 2018, and any other sources indicated should be obtained and associated with the claims file. 4. Thereafter, after completing the above, obtain an addendum opinion from an appropriate clinician or clinicians regarding whether any disability of the left knee, left ankle, GERD and/or hiatal hernia is at least as likely as not related to an in-service injury, event, or disease. The examiner should consider the Veteran’s lay testimony regarding onset and continuity of symptoms in providing etiology opinions regarding each claimed disability. Regarding the claimed GERD and/or hiatal hernia disabilities the examiner should reconcile the contradictory statements made in the October 2012 examination that suggest an onset of these disorders in 1974, versus the opinion that these diseases were of post service onset. For any disability of the left knee and/or left ankle not shown in service, state whether any disability as likely as not is due to arthritis manifested within one year after discharge from service. The examiner should provide a rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any claimed psychiatric disorder, to include depressive disorder. The examiner must opine whether there is a current psychiatric disorder and if so whether such disorder is at least as likely as not related to an in-service injury, event, or disease, including the situational depression diagnosed in March 1974. If a psychiatric disorder is not found to be related to service on a direct basis, the examiner should state whether a psychiatric disorder is at least as likely as not proximately due to any service-connected disability or disabilities; or aggravated beyond its natural progression by any service-connected disability or disabilities. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. The examiner should provide a rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Eckart, 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.