Citation Nr: 19151281 Decision Date: 07/01/19 Archive Date: 07/01/19 DOCKET NO. 17-37 795 DATE: July 1, 2019 ISSUES 1. Entitlement to service connection for a respiratory disorder, to include atelectasis. 2. Entitlement to service connection for radiculopathy of the bilateral upper extremities, claimed as secondary to a chronic neck disability. REMANDED Entitlement to service connection for a respiratory disorder, to include atelectasis is remanded. Entitlement to service connection for radiculopathy of the bilateral upper extremities, claimed as secondary to a chronic neck disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1948 to July 1969, and from June 1971 to April 1988. This radiculopathy matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York issued in February 2015. This respiratory matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia issued in March 2016. Jurisdiction is currently held by the RO in Roanoke, Virginia. In January 2015, the Board dismissed the respiratory matter claimed as atelectasis. In February 2016, the Veteran re-filed his atelectasis claim on VA Form 21-526EZ. In June 2017, the RO issued a Statement of the Case (SOC). VA provided VA examinations to the Veteran in December 2007 (x-ray), April 2008 (CT scan) and July 2012 (respiratory conditions examination). In May 2017, the RO issued a SOC that continued to deny service connection for radiculopathy of bilateral upper extremities. VA provided VA examinations to the Veteran in May 2017, April 2014, April 2013, and an EMG test in December 2011. The Veteran also submitted a private medical opinion from January 2017. Next, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in October 2017. A transcript is of record. The Veteran wished to waive RO consideration of any additional evidence submitted. A March 2018 Board decision denied the claims for service connection for a respiratory disorder, to include atelectasis, and service connection for radiculopathy of the bilateral upper extremities, claimed as secondary to a chronic neck disability. Next, a January 2019 Order from the United States Court of Appeals for Veterans Claims (Court) granted a January 2019 Joint Motion for Remand (JMR) with respect to these issues currently before the Board. The Court vacated the March 2018 Board decision and remanded the matter for appropriate action. This is discussed further below. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2) (2012). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2018). 1. Entitlement to service connection for a respiratory disorder, to include atelectasis is remanded. 2. Entitlement to service connection for radiculopathy of the bilateral upper extremities, claimed as secondary to a chronic neck disability is remanded. The Board incorporates its discussion from the sections above by reference. The Board generally observes that service connection is warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303 (d) (2018). The Board observes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). Next, the Board observes there is longstanding precedent concerning the evaluation of lay assertions as they relate to establishing service connection, particularly the critical nexus requirement at issue in the instant case. Lay statements can provide sufficient evidence upon which to base a positive nexus opinion if a physician concludes that the current disability is due to a disease that had its onset in or is related to service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Once evidence is determined to be competent, the Board must determine whether the evidence is also credible. The former, the Court has held, is a legal concept, which is useful in determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board observes that the weight of a medical opinion is diminished where it is ambivalent, based on an inaccurate factual premise or examination of limited scope, or where the rationale is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993). The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See Reonal, supra, at 460 (1993). “[A] bare transcription of a lay history is not transformed into ‘competent medical evidence’ merely because the transcriber happens to be a medical professional.” LeShore v. Brown, 8 Vet.App. 406, 409 (1995). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104 (a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board observes that 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. 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 Veteran is claiming atelectasis as his condition, based upon a magnetic resonance image (MRI) of his lung. Imaging evidence showed that the Veteran has atelectasis and had highly probable exposure to asbestos while working as a diver during his active service. Mere exposure to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The question then turns to whether the Veteran’s respiratory disorder was caused by or is otherwise attributable to his active service. By way of background, the Veteran’s Service Treatment Records (STRs) include a December 1988 Report of Medical Examination. It disclosed a clinically normal evaluation of the head, face, neck, and scalp, nose, sinuses, spine, musculoskeletal system, lungs and chest, and upper extremities. The STRs are negative for complaints or findings related to any respiratory disorder. The Veteran did not report chronic shortness of breath, wheezing, or other symptoms associated with a lung condition. The remainder of his STRs are silent for any mention of respiratory problems or any other exposure to any noxious chemical or material exposures. While not determinative of any disease that asbestos exposure may cause years later, there is no clear evidence of early onset symptoms in service. However, through various submissions, the Veteran’s theory of entitlement has been one of a remote onset still attributable to asbestos exposure. The Veteran’s STRs are also silent for any mention of upper extremity radiculopathy or similar conditions through his discharge in 1988. The first indication in the claims file about the aforementioned symptoms in the upper extremities comes approximately twenty years later. Next, a June 16, 2009 letter from Dr. H. S. shows in part, “Upon review of his diving history, Master Chief [Veteran] had experienced two instances of a Type I and a Type II decompression sickness (DCS), respectively. However, in Nov 1956, despite having Type II manifestations, i.e., numbness and leg pain treatment was withheld because those symptoms did not occur within 24 hours.” A September 9, 2019 VA Spine examination shows a positive nexus opinion. It reads, “Hence it is my opinion that it is at least as likely as not that this veteran’s current cervical and lumbar spine conditions are due to his deep sea diving activity during his military career.” It provides limited reasons and bases to support this conclusion, and shows that this is largely based upon the information provided in the June 16, 2009 letter from Dr. H. S. The Veteran indicated on his March 2012 VA 21-4138 Statement in Support of Claim, received by VA in April 2012, that the recent electrodiagnostic evaluation prompted him to file this claim, based also on his symptoms, particularly in his right arm and hand. He has bilateral arm and hand paint, right greater than left, on and off all day long. He also has right hand numbness at the same time. He had numbness in the middle and ring fingers of the left hand. He is woken from sleep when he notices his wrists are flat on the bed. There are severe problems with his C-3 to C-7 vertebrae. The Board generally observes that a negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In July 2012, the Veteran was afforded a VA respiratory examination. The VA examiner noted diagnoses of chronic obstructive pulmonary disease (COPD) and atelectasis of his left lower lobe in his left lung. While noting the Veteran quit smoking in 1980, she also noted he reported a history of smoking for over thirty years. The Veteran denied any diagnosis of asbestosis, but stated he uses a rescue bronchodilator intermittently. He was unsure whether he could walk stairs without losing his breath. He also denied being told he ever had a lung problem until observing the image showing atelectasis. Next, the July 2012 VA examiner opined that it is less likely than not that the appearing atelectasis, or collapsed portion of his lung, was caused by or is related to the Veteran’s military service. The July 2012 examiner also noted that spirometry showed mild obstruction with bronchodilator response. COPD was diagnosed and the Veteran’s long history of smoking has been noted, which is associated with actelectasis, as is surgery and other possible causes. In comparing the previously taken images, the examiner noted no changes such as opacities or honeycombing. An April 2014 VA neck examination shows in part, “There is no objective proof that the patient has cervical radiculopathy at all -- and certainly none that is service connected.” Later, a May 2017 VA examiner opined that a 2011 EMG test does not support a diagnosis of bilateral upper extremity radiculopathy, particularly because the left arm tested as clinically normal. As explained, the Veteran reported the same symptoms in both arms, and thus the right arm symptoms must also be considered as resulting from bilateral shoulder impingement. Supporting this also was the EMG showing carpal tunnel syndrome, which is not the same as cervical radiculopathy. The May 2017 examiner further explained that the reported symptoms of pain, weakness, numbness and tingling are not consistent with EMG findings of mild, chronic right cervical radiculopathy; and thus right upper extremity symptoms are less likely than not proximately due to the service-connected cervical spine condition. Although the Veteran’s service records do not specifically confirm that he was exposed to asbestos during service, the Board observes that his service as a diver in the Navy, assigned over many years to several ships, including the U.S.S. New Jersey and U.S.S Macon, among others, could have exposed him to asbestos. The Veteran also testified at the October 2017 hearing regarding his exposure as a gunner or working amid ship turrets. See October 2017 Hearing Transcript, p. 15. As the Board previously found in the now-vacated March 2018 Decision, his testimony was competent, credible and highly probative to show the Navy more likely than not exposed him to asbestos. Later, the January 2019 JMR shows in part, “Specific to the decision on appeal, the parties agree that the Board erred in not addressing Appellant’s alternative theories of entitlement to service connection of both the respiratory disorder and radiculopathy of the bilateral upper extremities. The Board must consider all issues raised by the claimant or reasonably raised in the appeal. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).” Regarding the respiratory disability claim, it shows in part, “However, the Board did not consider Appellant’s contention that his respiratory disorder was caused by his 36 years in the military occupational specialty [MOS] of a master diver and his in-service incidents of decompression sickness.” In June 2019, the Veteran through his attorney submitted new evidence, including private medical opinions, along with a Brief. The June 4, 2019 Brief shows that “60 pages of medical evidence” were attached. For the respiratory condition, the Brief highlights that in-service asbestos exposure has already been conceded. The Brief describes that although the Veteran has contended that his symptoms are attributable to his 36 years as a master diver with in-service incidents of decompression sickness, it is the Secretary’s position that there is insufficient competent medical evidence on file to make a decision in the claim. For the bilateral upper extremity condition, the Brief highlights positive nexus opinions of record. Also for the radiculopathy of the upper extremity claim, the January 2019 JMR shows in part, “However, the Board did not consider whether Appellant’s service-connected bilateral shoulder disabilities could have caused or aggravated any radiculopathy disability.” The Brief concludes, “therefore, if the Board is unable to reach the conclusion that service connection is warranted for the respiratory condition and the upper extremity radiculopathy, we respectfully request that the Board remand for a medical opinion to help determine linkage and establish service connection for Mr. [Veteran’s] conditions on appeal. The Board should carefully consider all evidence and conduct any necessary additional development and resolve any reasonable doubt in Mr. [Veteran’s] favor and grant service connection.” Here, the Veteran and his attorney have identified several considerations warranting additional evidentiary development, including nexus opinions for his theories of entitlement, requiring medical expertise. The Veteran’s lay history of his experiences in service should be considered, consistent with the January 2019 JMR. In remanding for additional development, the Board is mindful of section IV in the June 2019 Brief, “VA is obligated to Assist Mr. [Veteran] to get a medical opinion because he meets the McLendon five elements.” (emphasis in original.) In this regard, we note that there is consistent evidence of disability. There are lay and buddy statements describing the Veteran’s duties as a master diver. However, there are multiple inconsistent nexus opinions spanning several years, during which time there has been ongoing development. The June 2019 Brief also calls into question the adequacy of the medical opinions surrounding the bilateral upper extremity condition. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To resolve the inconsistency, and in light of the Veteran’s contentions, supplemental VA medical opinions from clinicians of appropriate expertise are necessary. Colvin, supra. Therefore, the case is remanded to the Agency of Original Jurisdiction (AOJ) for further action. 38 C.F.R. § 19.9 (a). The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records and any private treatment records, and associate them with the Veteran’s claims folder. 2. Please schedule the Veteran for a VA examination with a physician of appropriate expertise in diagnosing respiratory disabilities, though not necessarily a pulmonologist, to determine the nature and etiology of any respiratory disorder, to include atelectasis. The Veteran need not be examined in person unless deemed necessary by the VA examiner or unless he requests to be present. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The VA examiner should specifically opine whether it is at least as likely as not that any lung disabilities were caused by or are otherwise related to the Veteran’s 36 years of deep-sea diving. Please comment on the evidence of record showing that naval divers can develop pulmonary effects due to their military occupational specialty (MOS), and evidence that the Veteran experienced two incidences of Type I and Type II decompression sickness or “DCS” in service. Attention is invited to the June 4, 2019 Brief, Section II, and the June 16, 2009 letter from Dr. H. S. The examiner should provide a rationale for all opinions expressed. 3. Please schedule the Veteran for a VA examination with a physician of appropriate expertise in diagnosing painful musculoskeletal disabilities, though not necessarily a neurologist, to determine the nature and etiology of any bilateral upper extremity disability, to include radiculopathy. The Veteran need not be examined in person unless deemed necessary by the VA examiner or unless he requests to be present. The claims file should be made available to the VA examiner. Any relevant previous imaging studies should be reviewed and specifically cited to in describing the Veteran’s current diagnoses. Any additional necessary imaging or other diagnostic studies should be performed as needed. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. Similar to above, the VA examiner should specifically opine whether it is at least as likely as not that the Veteran’s claimed bilateral upper extremity symptoms, resulting in disability, were caused by or are otherwise related to his 36 years of diving and the other duties associated with his MOS. The VA examiner should also opine whether any diagnosed bilateral upper extremity condition, to include radiculopathy, is proximately due to, the result of, or aggravated by the Veteran’s service-connected disabilities, referred to as a bilateral shoulder impingement, and service-connected as degenerative joint disease at the AC joint, left (minor) shoulder, and degenerative joint disease at the AC joint, right shoulder. Attention is invited to the June 4, 2019 Brief, Section III. The examiner should provide a rationale for all opinions expressed. 4. Upon obtaining the completed development ordered above (to the extent possible), review the claims file to ensure that it addresses the two issues on appeal. Any inadequacies should be addressed prior to recertification to the Board. (Continued on the next page.) 5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, 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.