Citation Nr: 21004463 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-21 532 DATE: January 27, 2021 ORDER Entitlement to service connection for asbestosis is granted REMANDED Entitlement to service connection for rheumatoid arthritis (RA) is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the currently diagnosed asbestosis is etiologically related to in-service asbestos exposure. CONCLUSIONS OF LAW The criteria for service connection for asbestosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the U.S. Air Force from August 1963 to August 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 and February 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the claims for further development; they are now returned to the Board for further adjudication. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board initially notes that the September 2019 remand instructed the RO to investigate and make findings with regard to the Veteran’s exposure to asbestos in service. Though the efforts expended in attempting such were suboptimal, the Veteran is not prejudiced, as the RO eventually conceded asbestosis exposure in the performance of duties in service, as a vehicle operator. Moreover, the Board finds, based on the time and circumstances of service, that exposure to asbestos in the construction and maintenance of quarters and vehicles in service is also likely. A February 2020 VA contract examiner credited a 2003 diagnosis of asbestosis reported by a private provider, and conceded such diagnosis. She acknowledged the Veteran’s reports of working in areas where there was asbestos, but found no documentary evidence of asbestos exposure or a diagnosis of asbestosis in service. Nevertheless, she opined positively as to a nexus. Another opinion was sought in September 2020. That contract examiner rejected the 2003 report of a positive chest x-ray, and found based on statement s in the claims file that asbestos exposure was not established in service. Post-service employment, with exposure to asbestos, was also noted. A negative nexus opinion was therefore rendered. The Board finds that while both opinions are lacking, the first because it appears to render contradictory opinions and the second because it considers an incorrect factual basis, the conflicts in the first can be resolved, and at worst result in equipoise. The examiner is correct in stating that at the time of her examination there was no documentation of exposure, or diagnosis in service. However, she appears to have credited the competent lay reports of exposure by the Veteran and conceded actual exposure prior to rendering a positive nexus opinion. Even if the possibility of post-service exposure is credited, it is not possible to distinguish which exposure introduced the fibers resulting in the lung changes. Accordingly, as there is in-service asbestos exposure, an acknowledged current diagnosis, and an d worst equipoise regarding a nexus between the two, service connection for asbestosis is warranted. REASONS FOR REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. Rheumatoid Arthritis In September 2019, the Board remanded this issue to obtain a VA examination. The VA examiner was asked to address whether the Veteran’s RA was caused or aggravated by service. The Board requested that the examiner discuss the in-service reference to early RA of the left hand and wrist. In February 2020, the Veteran was afforded multiple VA orthopedic examinations. However, the examiner failed to address the notation of possible early RA in a May 1967(?) x-ray of the left hand and wrist, as directed. The examiner instead incorrectly stated there was no indication of RA in service treatment records . Additionally, the examiner referenced pre-existence of RA, which is contradicted by the evidence of record and application of the presumption of soundness. RA was not noted on examination for entry into active duty. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Therefore, remand is required for an opinion which addresses the directives of the Board and the actual evidence of record. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for VA arthritis examination; the claims folder must be reviewed in conjunction with the examination. The examiner must state whether a diagnosis of rheumatoid arthritis is warranted and if so, opine as to whether such is at least as likely as not caused or aggravated by service. The in-service reference to early RA of the left hand and wrist on a May 1967 x-ray must be discussed. The Veteran is considered sound on entry onto duty except for conditions noted on examination at that time. 3. Thereafter, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.