Citation Nr: 21003282 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-58 728A DATE: January 21, 2021 REMANDED Entitlement to dependency and indemnity compensation (DIC) benefits based upon service connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran had active service from May 1983 to May 2003. The Veteran died in August 2014, and the appellant is his surviving spouse. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a September 2020 virtual hearing, and a transcript of the hearing has been associated with the claims file. Following the hearing, the appellant and her attorney submitted an additional medical opinion evidence along with a waiver of initial consideration of such evidence by the agency of original jurisdiction (AOJ); therefore, the Board has properly considered it herein. Entitlement to dependency and indemnity compensation (DIC) benefits based upon service connection for the cause of the Veteran’s death is remanded. Within a November 2020 brief, the appellant’s attorney asserted the most recent March 2018 VA opinion is inadequate because the examiner failed to address whether the Veteran’s pulmonary fibrosis was the result of exposure to exhaust, fumes, and solvents while performing duties as a helicopter repairman for over 19 years. VA’s duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Following a review of the record, and as discussed below, the Board finds that a remand is necessary regarding the appellant’s claim on appeal in order to obtain an adequate addendum medical opinion. Specifically, the Board finds that an addendum opinion is warranted to properly reconcile the conflicting nexus opinion evidence of record, consider the raise theory that the Veteran’s pulmonary fibrosis was a result of his in-service exposures due to his duties as a helicopter repairman, as well as considers all relevant evidence, including the most recent November 2020 private opinion and the supporting medical literature referenced therein. As noted above, there are multiple conflicting nexus opinions of record. First, an October 2014 private nexus opinion by Dr. Jessica W. Burgert states that “it is difficult to know exactly what fumes/chemicals/other substances [the Veteran] came in contact with over the years (other than jet fuel and alcohol fumes as he reported).” She opined that “it is certainly possible” that the Veteran’s lung disease that caused his death “could have been due in whole or in part from the exposures he had during his time in active duty with the United States military.” Notably, this opinion is speculative in nature and it does not provide a good rationale to support the doctor’s conclusion. Similarly, a December 2014 private nexus opinion by Dr. Sonal Arora states that there was “no evidence of secondary causes from auto-immune process, exposure history at home, or environmental history locally” therefore Dr. Arora hypothesized that the Veteran’s “service history is likely to be contributing to his end stage pulmonary fibrosis.” As above, this opinion does not provide a rationale for the conclusion reached. In November 2016, VA obtained a medical opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner provided a supporting rationale based upon a review of the claims file that there was no evidence in the Veteran’s service treatment records or medical records of a diagnosis of or treatment for pulmonary fibrosis during active service, and there was no evidence that the Veteran’s treatment of recurring upper respiratory infections (URIs) with chest pain and diagnoses including fingernail clubbing, patchy areas of ground-glass opacity predominantly in the lung periphery, differential nonspecific interstitial pneumonitis, and emphysematous changes would have predisposed the development of his later diagnosed pulmonary fibrosis. In February 2018, VA obtained the Veteran’s Social Security Administration (SSA) disability records. Therein, a July 2010 treatment note documents that the Veteran was a “very incomplete historian.” Within these records, it shows he reported that he worked at the aircraft hangar and had extensive exposure to paint fumes and possibly asbestos. He reported the strongest fume exposure occurred was while he was painting an aircraft floor. In August 2010, it was noted that the Veteran was initially seen for pneumonia and after extensive pulmonary work-up was found to have fibrotic lung disease and traction bronchiectasis, which was most consistent with UIP (usual interstitial pneumonia) radiographically and a possible component of NSIP (nonspecific interstitial fibrosis and inflammation). In December 2010, the Veteran was noted to have biopsy-proven pulmonary fibrotic lung disease secondary to “likely” an autoimmune connective tissue disorder with elevation in aldolase. In April 2011, a physician wrote that the Veteran had been diagnosed with pulmonary fibrosis “most likely secondary to connective tissue disorder, most likely myositis based on the autoimmune serologies.” In March 2018, after receipt of the above SSA records, VA obtained an addendum medical opinion from the same examiner who rendered the November 2016 VA opinion discussed above. The examiner again opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner supported the negative opinion by a review of service treatment records, which he concluded provided no supporting evidence for the claim. The examiner acknowledged that there was noted in-service treatment for URI, chest pain, and clubbing on various occasions, and stated that it was not uncommon for an individual to develop clubbing from smoking tobacco, which is also a well-known risk factor in the development of COPD/emphysema that was shown on a June 2002 CT chest scan. The examiner also stated that although pulmonary fibrosis symptoms included clubbing, chest discomfort, and infection, the service treatment records noted the Veteran’s diagnosis of costochondritis, which was not uncommon for an individual with chest discomfort. The examiner also stated that clubbing is a physical finding seen in individuals who have low amounts of oxygen in the blood stream for a long period of time, with the most common cause being chronic lung disease, and that service treatment records documented a diagnosis of COPD/emphysema (chronic lung disease), but they were silent for evidence of a diagnosis of pulmonary fibrosis, nonspecific interstitial pneumonitis, or pulmonary fibrosis. As such, the examiner concluded that the Veteran’s diagnosed conditions noted while in service are not precursors to the Veteran’s later-diagnosed pulmonary fibrosis, as COPD/emphysema is a separate and unrelated condition to pulmonary fibrosis diagnosed many years after military discharge. Most recently, in conjunction with the November 2020 attorney brief, the appellant and her attorney submitted a November 2020 private medical nexus opinion from Dr. Ian H. Newmark, who concluded that it is at least as likely as not that the Veteran’s pulmonary fibrosis started in service and was at least as likely as not caused by his in-service exposure to exhaust, fumes, and solvents while performing his duties as a helicopter repairman. Dr. Newmark noted that during his time in service, the Veteran experienced frequent chest pain and was seen on multiple occasions for upper respiratory symptoms. Chest CT scans in June 2002 and July 2002 showed emphysematous changes, patchy areas of ground glass opacity, and findings consistent with chronic interstitial lung disease, although a pulmonary function test (PFT) in July 2002 showed normal findings. Dr. Newmark stated that due to these test results, the Veteran’s chest complaints were not further investigated during his active duty, which lead to a missed assessment of his condition and a late diagnosis of pulmonary fibrosis in 2010. However, Dr. Newmark stated that it is important to note that, in light of imaging results consistent with chronic interstitial changes and emphysema (consistent with COPD), a normal PFT does not exclude a diagnosis of pulmonary fibrosis/interstitial lung disease. He noted that it is true that PFTs in patients with idiopathic pulmonary fibrosis typically show a restrictive pattern including small lung volumes and increased expiratory flow rates resulting from a reduction in pulmonary compliance due to diffuse fibrosis; however, when pulmonary fibrosis and COPD coexist, as in the Veteran’s case, pulmonary volumes are compensated, and a smaller than expected reduction or even normal lung volumes can be found. Dr. Newmark stated that this phenomenon clearly explains why the Veteran had imaging findings showing chronic inflammatory changes and emphysema, but with a normal PFT. Thus, based on these imaging findings, and without any pre-service history of pulmonary disease, Dr. Newmark concluded that it is at least as likely as not that the Veteran’s pulmonary fibrosis and COPD started while he was still in the military. He further noted that a diagnosis for pulmonary fibrosis is commonly delayed because many of the symptoms are shared with many other pulmonary and cardiovascular conditions; therefore, without specific screenings for this disease, pulmonary fibrosis is largely considered an exclusion diagnosis that is often reached after a patient has a long history (even years) with symptoms. He stated that several risk factors accounted for the development of the Veteran’s pulmonary fibrosis during his time in service, to include a 20-year history of exposure to jet fuel exhaust, welding fumes and solvents, and concluded that the Veteran’s in-service imaging findings strongly support that his pulmonary fibrosis, which ultimately resulted in his death, started while he was on active duty. Therefore, it is at least as likely as not that the Veteran’s pulmonary fibrosis had its onset during his time in service. At the September 2020 virtual hearing the appellant testified that during his 20 years of active service, the Veteran was exposed to several factors that could have caused his lung disease. First, she noted that he served as a Crew Chief Blackhawk Mechanic and in several medevac units, which exposed him to cleaning chemicals that, at that time, presented unknown effects of exposure. Second, she testified that with all of his deployments, including to Saudi Arabia in 1997, the Veteran was around burn pits, where medical waste, human waste, and food waste was burned and inhaled by those nearby. Third, she stated that the Veteran’s housing was filled with asbestos and lead paint, which could also be a contributing factor. Additionally, she reported that during his ninth year of service, in approximately 1992, the Veteran had imaging tests done, including x-rays and MRIs, which showed three three-millimeter nodes in his lungs that progressively increased in size, and that later, several doctors had given estimates about the onset of the Veteran’s condition being when he was still in active service. The Board has reviewed the Veteran’s service treatment records for documentation of the imaging testing reported by the appellant during the September 2020 hearing. While service treatment records document that a November 1991 chest x-ray was completed on the Veteran and a June 1992 chest x-ray was conducted following the Veteran’s assessment of a URI earlier that month, there is no indication that the results of these or other contemporaneous imaging tests revealed nodules in the Veteran’s lungs as reported by the appellant. The matter is REMANDED for the following action: Return the claims file to the VA examiner who provided the November 2016 and March 2018 opinions for an addendum medical opinion to address whether it is at least as likely as not that the Veteran’s immediate cause of death by pulmonary fibrosis was incurred in or caused by his active service. If the previous VA examiner is unavailable, an equally qualified VA examiner may be substituted. The examiner is asked to review the claims file, including this remand, in rendering the requested addendum opinion. To assist the examiner, the Board has included the following relevant facts and evidence: • The Veteran had active service from May 1983 to May 2003. His military occupational specialty was a helicopter repairman. • The Veteran died in August 2014. His death certificate documents that the immediate cause of death is listed as pulmonary fibrosis. See VBMS entry with document type, “VA 21-534EZ Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child,” receipt date 10/29/2014, on page 10. • In an October 2014 private nexus opinion by Dr. Jessica W. Burgert stated that “it is difficult to know exactly what fumes/chemicals/other substances [the Veteran] came in contact with over the years (other than jet fuel and alcohol fumes as he reported).” She opined that “it is certainly possible” that the Veteran’s lung disease that caused his death “could have been due in whole or in part from the exposures he had during his time in active duty with the United States military.” See VBMS entry with document type, “VA 21-534EZ Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child,” receipt date 10/29/2014, on pages 14-15. • A December 2014 private nexus opinion by Dr. Sonal Arora states that there was “no evidence of secondary causes from auto-immune process, exposure history at home, or environmental history locally” therefore Dr. Arora hypothesized that the Veteran’s “service history is likely to be contributing to his end stage pulmonary fibrosis.” See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 11/05/2015, on page 2. • A November 2016 VA examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner provided a supporting rationale based upon a review of the claims file that there was no evidence in the Veteran’s service treatment records or medical records of a diagnosis of or treatment for pulmonary fibrosis during active service, and there was no evidence that the Veteran’s treatment of recurring upper respiratory infections (URIs) with chest pain and diagnoses including fingernail clubbing, patchy areas of ground-glass opacity predominantly in the lung periphery, differential nonspecific interstitial pneumonitis, and emphysematous changes would have predisposed the development of his later diagnosed pulmonary fibrosis. See VBMS entry with document type, “Medical Opinion,” receipt date 11/29/2016. • SSA records document the Veteran’s July 2010 report that he worked at the aircraft hangar and had extensive exposure to paint fumes and possibly asbestos. He reported his strongest fume exposure reported was while he was painting an aircraft floor. See VBMS entry with document type, “Medical Treatment Records - Furnished by SSA,” receipt date 02/16/2018, on page 46. • In August 2010, it was noted that the Veteran was initially seen for pneumonia and after extensive pulmonary work-up was found to have fibrotic lung disease and traction bronchiectasis, which was most consistent with UIP (usual interstitial pneumonia) radiographically and a possible component of NSIP (nonspecific interstitial fibrosis and inflammation). See VBMS entry with document type, “Medical Treatment Records - Furnished by SSA,” receipt date 02/16/2018, on page 40. • In December 2010, the Veteran was noted to have biopsy-proven pulmonary fibrotic lung disease secondary to “likely” an autoimmune connective tissue disorder with elevation in aldolase. See VBMS entry with document type, “Medical Treatment Records - Furnished by SSA,” receipt date 02/16/2018, on page 34. • In April 2011, a physician wrote that the Veteran had been diagnosed with pulmonary fibrosis “most likely secondary to connective tissue disorder, most likely myositis based on the autoimmune serologies.” See VBMS entry with document type, “Medical Treatment Records - Furnished by SSA,” receipt date 02/16/2018, on page 28. • In March 2018, the same VA examiner from November 2016 again opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner supported the negative opinion by a review of service treatment records, which he concluded provided no supporting evidence for the claim. The examiner acknowledged that there was noted in-service treatment for URI, chest pain, and clubbing on various occasions, and stated that it was not uncommon for an individual to develop clubbing from smoking tobacco, which is also a well-known risk factor in the development of COPD/emphysema that was shown on a June 2002 CT chest scan. The examiner also stated that although pulmonary fibrosis symptoms included clubbing, chest discomfort, and infection, the service treatment records noted the Veteran’s diagnosis of costochondritis, which was not uncommon for an individual with chest discomfort. The examiner also stated that clubbing is a physical finding seen in individuals who have low amounts of oxygen in the blood stream for a long period of time, with the most common cause being chronic lung disease, and that service treatment records documented a diagnosis of COPD/emphysema (chronic lung disease), but they were silent for evidence of a diagnosis of pulmonary fibrosis, nonspecific interstitial pneumonitis, or pulmonary fibrosis. As such, the examiner concluded that the Veteran’s diagnosed conditions noted while in service are not precursors to the Veteran’s later-diagnosed pulmonary fibrosis, as COPD/emphysema is a separate and unrelated condition to pulmonary fibrosis diagnosed many years after military discharge. See VBMS entry with document type, “CAPRI,” receipt date 03/20/2018. • In November 2020, Dr. Ian H. Newmark concluded that it is at least as likely as not that the Veteran’s pulmonary fibrosis started in service and was at least as likely as not caused by his in-service exposure to exhaust, fumes, and solvents while performing his duties as a helicopter repairman. Dr. Newmark noted that during his time in service, the Veteran experienced frequent chest pain and was seen on multiple occasion for upper respiratory symptoms. Chest CT scans in June 2002 and July 2002 showed emphysematous changes, patchy areas of ground glass opacity, and findings consistent with chronic interstitial lung disease, although a pulmonary function test (PFT) in July 2002 showed normal findings. Dr. Newmark stated that due to these test results, the Veteran’s chest complaints were not further investigated during his active duty, which lead to a missed assessment of his condition and a late diagnosis of pulmonary fibrosis in 2010. However, Dr. Newmark stated that it is important to note that, in light of imaging results consistent with chronic interstitial changes and emphysema (consistent with COPD), a normal PFT does not exclude a diagnosis of pulmonary fibrosis/interstitial lung disease. He noted that it is true that PFTs in patients with idiopathic pulmonary fibrosis typically show a restrictive pattern including small lung volumes and increased expiratory flow rates resulting from a reduction in pulmonary compliance due to diffuse fibrosis; however, when pulmonary fibrosis and COPD coexist, as in the Veteran’s case, pulmonary volumes are compensated, and a smaller than expected reduction or even normal lung volumes can be found. Dr. Newmark stated that this phenomenon clearly explains why the Veteran had imaging findings showing chronic inflammatory changes and emphysema, but with a normal PFT. Thus, based on these imaging findings, and without any pre-service history of pulmonary disease, Dr. Newmark concluded that it is at least as likely as not that the Veteran’s pulmonary fibrosis and COPD started while he was still in the military. He further noted that diagnosis for pulmonary fibrosis is commonly delayed because many of the symptoms are shared with many other pulmonary and cardiovascular conditions; therefore, without specific screenings for this disease, pulmonary fibrosis is largely considered an exclusion diagnosis that is often reached after a patient has a long history (even years) with symptoms. He stated that several risk factors accounted for the development of the Veteran’s pulmonary fibrosis during his time in service, to include a 20-year history of exposure to jet fuel exhaust, welding fumes and solvents, and concluded that the Veteran’s in-service imaging findings strongly support that his pulmonary fibrosis, which ultimately resulted in his death, started while he was on active duty. Therefore, it is at least as likely as not that the Veteran’s pulmonary fibrosis had its onset during his time in service. See VBMS entry with document type, “Third Party Correspondence,” receipt date 11/02/2020, on pages 5-16. • At the September 2020 virtual hearing, the appellant testified that during his twenty years in active service, the Veteran was exposed to several factors that could have caused his lung disease. First, she noted that he served as a Crew Chief Blackhawk Mechanic and in several medevac units, which exposed him to cleaning chemicals that, at that time, presented unknown effects of exposure. Second, she testified that with all of his deployments, including to Saudi Arabia in 1997, the Veteran was around burn pits, where medical waste, human waste, and food waste was burned and inhaled by those nearby. Third, she stated that the Veteran’s housing was fills with asbestos and lead paint, which could also be a contributing factor. Additionally, she reported that during his ninth year of service, in approximately 1992, the Veteran had imaging tests done, including x-rays and MRIs, which showed three three-millimeter nodes in his lungs that progressively increased in size, and that later, several doctors had given estimates about the onset of the Veteran’s condition being when he was still in active service. See VBMS entry with document type, “Hearing Transcript,” receipt date 09/30/2020. • The Board has reviewed the Veteran’s service treatment records for documentation of the imaging testing reported by the appellant during the September 2020 hearing. While service treatment records document that a November 1991 chest x-ray was completed on the Veteran and a June 1992 chest x-ray was conducted following the Veteran’s assessment of a URI earlier that month, there is no indication that the results of these or other contemporaneous imaging tests revealed nodules in the Veteran’s lungs as reported by the appellant. See VBMS entry with document type, “STR - Medical,” receipt date 06/11/2003, with “1991-92 imaging results” in the Subject field. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence Following a review of the claims file, the examiner is asked to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s immediate cause of death by pulmonary fibrosis was incurred in or caused by his active service from May 1983 to May 2003. A complete supporting rationale for all opinions must be provided, with reference to relevant evidence of record and/or medical principles, as appropriate, including the recent November 2020 private medical opinion and the supporting medical literature cited therein. If the VA examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the VA examiner must provide the reasons why an opinion would require speculation. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.