Citation Nr: 20021029 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-14 171 DATE: March 24, 2020 ORDER Entitlement to an initial 100 percent rating for service connected asbestosis with interstitial lung disease is GRANTED. REMANDED Entitlement to service connection for vascular disease, to include as secondary to asbestosis, is REMANDED. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to asbestosis, is REMANDED. Entitlement to service connection for congestive heart failure (CHF), secondary to asbestosis, is REMANDED. Entitlement to service connection for pulmonary hypertension, to include as secondary to asbestosis, is REMANDED. Entitlement to service connection for arteriosclerotic vascular disease, secondary to asbestosis, is REMANDED. Entitlement to service connection for gastroesophageal reflux disease (GERD), secondary to asbestosis, is REMANDED. Entitlement to service connection for renal disease and/or failure, secondary to asbestosis, is REMANDED. Entitlement to service connection for hemosiderosis of the liver, secondary to asbestosis, is REMANDED. FINDING OF FACT During the appellate period, the Veteran endured cor pulmonale and pulmonary hypertension. Additionally, the Veteran received oxygen therapy during the appellate period for treatment. CONCLUSION OF LAW Throughout the appellate period, the criteria have been met for a 100 percent rating for the service-connected asbestosis with interstitial lung disease. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.97, 4.104, Diagnostic Code 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from September 1963 to June 1968. The Veteran’s certificate of release from active duty (DD214) reflects that the Veteran received the Vietnam Service Medal and a Vietnam Campaign Medal with Device. The DD214 also reflects that the Veteran served on the USS Prichett (DD 561). Unfortunately, the Veteran passed away during the pendency of his appeal for the nine issues listed on the title page. In February 2017, the Appellant filed a request for substitution. In August 2017, the agency of original jurisdiction (AOJ) determined that the Appellant was eligible to substitute for her late husband. Entitlement to an initial 100 percent rating for the service-connected asbestosis with interstitial lung disease is granted. In January 2015, the Veteran submitted a VA Form 21-4138. Therein, the Veteran expressed an intent to file a Fully Developed Claim. In April 2015, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran formalized an entitlement claim for asbestosis related pleural disease. In November 2015, the agency of original jurisdiction (AOJ) awarded service connection for asbestosis with interstitial lung disease, assigning a 10 percent rating. In December 2015, the Veteran submitted a notice of disagreement for the assigned 10 percent rating. Asbestosis is rated under the General Rating Formula for Interstitial Lung Disease (General Formula). See 38 C.F.R. § 4.97, Diagnostic Code 6833. The General Rating Formula for Interstitial Lung Disease provides that a 10 percent rating is warranted where the Forced Vital Capacity (FVC) is 75 to 80 percent of predicted value or the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66 to 80 percent of predicted value. A 30 percent rating is warranted if the FVC is 65 to 74 percent of predicted value or the DLCO (SB) is 56 to 65 percent of predicted value. A 60 percent rating is warranted where the FVC is 50 to 64 percent of predicted value; DLCO (SB) is 40 to 55 percent predicted value; or maximum exercise capacity is 15 to 20 ml/kg in oxygen consumption with cardiorespiratory limitation. A 100 percent rating is warranted if the FVC is less than 50 percent of predicted value; DLCO (SB) is less than 40 percent predicted value; maximum exercise capacity is less than 15 ml/kg in oxygen consumption with cardiorespiratory limitation or; cor pulmonale or pulmonary hypertension; or requires oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Codes 6825 to 6833. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96. If the DLCO (SB) test is not of record, the disability may be rated based on alternative criteria as long as the examiner explains why the DLCO (SB) test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2). In October 2015, the Veteran’s treatment notations from the VA Nebraska-Western Iowa Health Care System (NWIHCS), Lincoln Division were associated with the claims file. Therein, the following pulmonary function tests values were recorded: 89.6 percent FVC predicated value and 71.2 percent DLCO predicated. In September 2015, the Veteran underwent a VA examination to determine the current severity of service-connected asbestosis with interstitial lung disease. At that time, the Veteran demonstrated 89.6 percent FVC predicated and 71.2 percent DLCO-SB predicated. The VA examiner reported that the Veteran currently endured pulmonary hypertension. In November 2015, a supplemental opinion was provided from a VA examiner. After review of the electronic claims file, the examiner opined that the DLCO (SB) better represented the Veteran’s asbestosis lung disease during the October 2015 VA examination. In January 2016, a letter from Lincoln Nephrology and Hypertension P.C. was associated with the claims file. The Board notes that the provider relays that, “(the Veteran) also has documented lung disease and pulmonary hypertension including asbestosis-related lung disease.” In September 2016, notations were generated at Bryan Medical Center. Important to this Board analysis, the medical provider(s) reported the following: 10 Liters of Oxygen therapy via mask; and, 3 Liters if Oxygen therapy via nasal cannula. In May 2019, the Appellant supplied sworn testimony to the undersigned Veterans Law Judge (VLJ). The Appellant testified that the late Veteran was on the full measure of 100 percent oxygen at the time of his death. In June 2019, the Veterans’ treatment notations from UNMC Nebraska Medicine were associated with the claims file. In January 2016, a Pulmonary Function Analysis revealed a 98 percent FVC predicated value and 66 percent DLCO (SB) the predicated value. In August 2016, an admittance notation reported that, “(h)e is 96% on 2 L of oxygen per nasal cannula.” In June 2019, the Veteran’s treatment notations from Bryan Medical Center were associated with the claims file. Therein, in September 2016, a provider reported an impression of pulmonary hypertension. On multiple occasions, the records note a history of pulmonary hypertension. Additionally, in September 2016, it was reported that, “the heart remains enlarged.” In June 2019, the Veteran’s treatment notations from UNC Nebraska Medicine were associated with the claims file. After review, the Board observes that multiple notations report a history of pulmonary hypertension. The Board notes that the Appellant’s testimony, and the Veteran’s treatment notations, indicate that the Veteran required oxygen therapy during the appellate period. Moreover, the treatment notations and examination report that the Veteran endured pulmonary hypertension and an enlarged heart during the appellate period. Ultimately, the Board concludes that the preponderance of the evidence favors the Appellant’s claim for an initial disability rating of 100 percent for asbestosis with interstitial lung disease. Accordingly, this increased disability rating claim must be granted.   REASONS FOR REMAND Again, the Veteran served honorably in the United States Navy from September 1963 to June 1968. The Veteran’s certificate of release from active duty (DD214) reflects that the Veteran received the Vietnam Service Medal and a Vietnam Campaign Medal with Device. The DD214 also reflects that the Veteran served on the USS Prichett (DD 561). Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Appellant with appropriate assistance in developing her claims prior to final adjudication. Entitlement to service connection for vascular disease, obstructive sleep apnea (OSA), congestive heart failure (CHF), pulmonary hypertension, arteriosclerotic vascular disease, gastroesophageal reflux disease (GERD), renal disease and/or failure, and hemosiderosis of the liver are remanded. During the pendency of this appeal, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) ruled on Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). In Procopio, the Court held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. In May 2015, the Veteran’s military personnel records were associated with the claims file. The Board notes that the MPRs list the USS Prichett as the assigned vessel during the Veteran’s service in the Vietnam conflict. However, the MPRs do not identify the USS Pritchett’s travels and/or area of operation. Additionally, the Board notes that the deck logs for the USS Prichett are not among the evidence of record. On remand, the agency of original jurisdiction must obtain and review the USS Prichett’s deck logs to determine whether the Veteran served in the 12-mile territorial sea of the Republic of Vietnam and, therefore, is presumed to have been exposed to a herbicide agent. In consultation with the National Academy of Science (NAS), and under 38 U.S.C. § 1116 (b) and 38 C.F.R. § 1.17, the Secretary of VA is required by law to issue a presumption of service connection when sound medical and scientific evidence shows a positive association between a disease and exposure to herbicides. The diseases for which presumptive service connection based on herbicide exposure is available include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. 38 C.F.R. § 3.309 (e). The Board observes that vascular disease, obstructive sleep apnea (OSA), congestive heart failure (CHF), pulmonary hypertension, arteriosclerotic vascular disease, gastroesophageal reflux disease (GERD), renal disease and/or failure, and hemosiderosis of the liver are not among the list of diseases subject to presumptive service connection. However, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In regard to vascular disease, OSA, CHF, pulmonary hypertension, arteriosclerotic vascular disease, GERD, renal disease and/or failure, and hemosiderosis of the liver, the Board is required to consider all theories of entitlement reasonably raised by the evidence. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). In September 2015 and March 2016, the Board observes that the Veteran underwent VA examinations that considered the nature and etiology for vascular disease, obstructive sleep apnea (OSA), congestive heart failure (CHF), pulmonary hypertension, arteriosclerotic vascular disease, gastroesophageal reflux disease (GERD), renal disease and/or failure, and hemosiderosis of the liver. However, the VA examiners did not consider the Veteran’s possible exposure to herbicide agents while aboard the USS Prichett during the Vietnam conflict. In the September 2015 and March 2016 opinions, the VA examiner(s) opined that it was less likely than not that vascular disease, OSA, CHF, pulmonary hypertension, arteriosclerotic vascular disease, GERD, renal disease and/or failure, and hemosiderosis of the liver were secondary to the Veteran’s service-connected asbestosis. Nevertheless, the Board concludes that a supplemental VA physician’s opinion may be necessary to fully address whether service connection is warranted on a direct basis due to possible herbicide agent exposure in during the Vietnam conflict. After the USS Prichett’s deck logs are reviewed to determine whether in Veteran served in the 12-mile territorial sea of the Republic of Vietnam, the AOJ must obtain a supplemental opinion regarding the nature and etiology of any vascular disease, OSA, CHF, pulmonary hypertension, arteriosclerotic vascular disease, GERD, renal disease and/or failure, and hemosiderosis of the liver endured by the Veteran during the appellate period. Consequently, the matters are REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. If available, the AOJ must obtain deck logs for the USS Pritchett during its time in the waters of the Republic of Vietnam during the relevant period. The deck logs should be associated with the claims file. The AOJ should make a determination as to whether the Veteran served within the 12 nautical mile territorial sea of the Republic of Vietnam. 2. Subsequent to the AOJ’s determination on the Veteran’s possible presumptive exposure to herbicide agents, the AOJ should secure a physician’s report on the Appellant’s claims for service connection for vascular disease, obstructive sleep apnea (OSA), congestive heart failure (CHF), pulmonary hypertension, arteriosclerotic vascular disease, gastroesophageal reflux disease (GERD), renal disease and/or failure, and hemosiderosis of the liver. The VA physician is requested to provide an opinion as to the following questions: (a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that any endured vascular disease, obstructive sleep apnea (OSA), congestive heart failure (CHF), pulmonary hypertension, arteriosclerotic vascular disease, gastroesophageal reflux disease (GERD), renal disease and/or failure, and hemosiderosis of the liver are due to the Veteran’s activities in the Navy, to include presumptive exposure to herbicide agents (if it is determined by the AOJ that the Veteran served within 12 nautical miles of the coast of Vietnam). (b) Is it at least as likely as not (i.e. a 50 percent probability or greater) that that vascular disease, obstructive sleep apnea (OSA), congestive heart failure (CHF), pulmonary hypertension, arteriosclerotic vascular disease, gastroesophageal reflux disease (GERD), renal disease and/or failure, and hemosiderosis of the liver were either (i) caused by or (ii) aggravated by the Veteran’s service-connected disabilities, to include asbestosis? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, No. 16-2157, 2019 U.S. App. Vet. Claims LEXIS 994 (June 14, 2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. If there is a clinical basis to doubt the various lay statements found in the claims file, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the lay statements regarding the onset of the vascular disease, obstructive sleep apnea (OSA), congestive heart failure (CHF), pulmonary hypertension, arteriosclerotic vascular disease, gastroesophageal reflux disease (GERD), renal disease and/or failure, and hemosiderosis of the liver. 3. Then, the AOJ should review the record, to include the medical opinion, to ensure that the requested information was provided. If the opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. Then, the AOJ must consider all the evidence of record and readjudicate the entitlement claims for service connection for vascular disease, obstructive sleep apnea (OSA), congestive heart failure (CHF), pulmonary hypertension, arteriosclerotic vascular disease, gastroesophageal reflux disease (GERD), renal disease and/or failure, and hemosiderosis of the liver. If the decision is averse to the Appellant, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the claims to the Board for further consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.