Citation Nr: 21062799 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-12 534 DATE: October 12, 2021 REMANDED Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for varicose veins is remanded. REFERRED CLAIMS In the November 2020 decision, the Board of Veterans' Appeals (Board) denied, in relevant part, the Veteran's claims seeking entitlement to service connection for a cardiovascular disability and type II diabetes mellitus. The Veteran has appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and it remains pending on the Court's docket. In the July 2021 appellate brief, the Veteran's representative indicated that newly obtained evidence suggested that the Veteran's service aboard the USS R.L. Wilson, USS Biddle, and USS Milwaukee may have exposed the Veteran to herbicide agents under the parameters of the newly enacted 38 U.S.C. § 1116A. The representative further alleged that this presumption could assist the Veteran in securing service connection for a cardiovascular disability and type II diabetes mellitus. However, the Veteran has not filed a supplemental claim seeking readjudication of these claims, and as such, they are REFERRED to the Agency of Original Jurisdiction (AOJ) for appropriate action, to include forwarding the Veteran the proper standardized claims application. See 38 C.F.R. § 20.904(b) (formerly 19.9(b)); see also Military-Veterans Advocacy v. Sec'y of Veterans Affairs, 7 F.4th 1110, 1145 (Fed. Cir. 2021) (invalidating the portion of 38 C.F.R. § 3.2500(b) that bars filing supplemental claims during the pendency of a judicial appeal). REASONS FOR REMAND The Veteran served on active duty from October 1970 to July 1976. These matters come before the Board on appeal from a May 2010 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In September 2017, the Veteran presented sworn testimony before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. Although the Board regrets the continued delay in the adjudication of these claims, a remand is necessary to ensure that there is a complete record upon which to decide the claims. Initial Considerations In various documents of record, the Veteran has alleged that his claimed disabilities are the result of in-service exposure to asbestos, dioxins (including Agent Orange), ionized radiation, polychlorinated biphenyl (PCB), and multiple other carcinogenic chemicals during his active duty service while stationed at Treasure Island, and aboard the USS R.L. Wilson, USS Biddle, and USS Milwaukee. In the November 2020 decision, the Board extensively explained why the Veteran's claimed exposure to ionizing radiation lacked probative evidentiary support in the record. In the November 2020 decision, the Board stated that "based on the Veteran's service record, there is no presumed exposure to [herbicide agents] during active service and no other evidence in his service record of herbicide [agent] exposure." Since then, additional service department records were received in February 2021, and in the July 2021 appellate brief, the Veteran's representative alleged for the first time that the USS R.L. Wilson, USS Biddle, and/or USS Milwaukee came within 12 nautical miles off the shore of the Republic of Vietnam, which would render the Veteran as presumptively exposed to herbicide agents, including Agent Orange, during his service abord these naval vessels, if proven true. Upon remand, the RO is requested to undertake appropriate development to determine whether the Veteran's service aboard the USS R.L. Wilson, USS Biddle, and/or USS Milwaukee constitutes qualifying Blue Water service for the purposes of applying the provisions of 38 U.S.C. § 1116A and determining presumptive exposure to herbicide agents. This development is necessary to clarify the veracity and nature of the Veteran's claimed in-service exposure to herbicide agents. In the July 2021 appellate brief, the Veteran's representative raised the possibility that the Veteran's respiratory disability and varicose veins might be secondary to his type II diabetes mellitus and claimed cardiovascular disability. However, these conditions have been REFERRED to the RO for appropriate action, supra, and since service connection is not currently in effect for these disabilities, VA's duty to assist in developing this theory of entitlement has not been triggered. Respiratory Disability Regarding his claimed asbestos exposure, VA has conceded that the Veteran was likely exposed to asbestos during his service aboard his military vessels. The Veteran has taken issue with the RO's characterization of his in-service exposure to asbestos as being minimal based on his military occupational specialty as a Weapons Officer. Of course, the true quantity and degree of the Veteran's in-service asbestos exposure is unknowable, as this was not measured at the time of his active duty service. See May 2020 correspondence from the Navy and Marine Corps Public Health Center. Given the Veteran's vague lay reports that he was exposed, at times, to asbestos in the engine and boiler rooms of the USS Wilson and USS Biddle, and that he slept inches away from asbestos-wrapped pipes on these ships, the Board agrees that the Veteran was exposed to asbestos during his active duty service. At the September 2017 Board hearing, the Veteran testified that he occasionally brushed against asbestos-containing insulated pipes, causing fibers to fall from the ceiling; however, there is no probative evidence that the Veteran's in-service duties required significant handling of asbestos-containing products or that he was frequently exposed to airborne loose or disturbed asbestos fibers or particulates on a routine and persistent basis. As such, the Board agrees with the RO's determination that his likely in-service asbestos exposure was minimal in nature. In the November 2020 decision, the Board remanded the Veteran's claim seeking service connection for a respiratory disability, in relevant part, for a VA medical opinion addressing whether his documented pulmonary nodules and restrictive ventilatory dysfunction (RVD) were incurred in or otherwise etiologically related to his active duty service, to include asbestos exposure. A VA examination was conducted, and medical opinions were issued in December 2020. In the July 2021 appellate brief, the Veteran's representative argued that the December 2020 VA examination was inadequate because the VA examiner's negative medical opinion was based solely on the absence of physical findings at the conducted VA examination, without consideration of the other respiratory diagnoses of records. Contrary to the Veteran's allegations, the December 2020 VA examiner provided medical opinions addressing whether the Veterans pulmonary nodules and RVD were related to the Veteran's active duty service, to include asbestos exposure, and the medical opinions were supported by plausible medical rationales. Regarding the Veteran's pulmonary nodules, the December 2020 VA examiner explained that the Veteran was recognized as having been exposed to a minimal degree of asbestos during service, and the diagnosed pulmonary nodules had not changed in size since 2014 and were assumed to be benign, as no biopsies had been conducted. She stated that recent radiographs showed no other pulmonary disease. Relying on quoted medical literature, the VA examiner noted there was no significant relationship between pulmonary nodules and cumulative asbestos exposure or between pulmonary nodules and the presence of asbestos-related benign diseases. Based on this medical literature, the VA examiner concluded that it was less likely than not that the Veteran's pulmonary nodules were related to his in-service asbestos exposure. Regarding the Veteran's RVD, the December 2020 VA examiner explained that the Veteran was recognized as having been exposed to a minimal degree of asbestos during service, and multiple pulmonary function tests (PFTs) showed mild RVD. She stated that earlier PFTs showed intrinsic RVD while more recent PFTs showed extrinsic RVD. Citing medical literature, the VA examiner explained that extrinsic RVD occurs when alveolar volume is reduced due to compression by mass effect (such as a tumor, blood, or effusion). The VA examiner explained that the Veteran's mild RVD was likely due to the multiple pulmonary nodules identified on the Veteran's chest computed tomography, which were already determined by the VA examiner to be unrelated to the Veteran's in-service asbestos exposure. The Board finds the December 2020 VA examiner's medical opinion to be fully informed and thorough in assessing an etiological relationship between the Veteran's pulmonary nodules and in-service asbestos exposure. Regarding the Veteran's RVD, the VA examiner provided a thorough explanation regarding the cause of the Veteran's extrinsic RVD, but she did not address whether the referenced intrinsic RVD was etiologically related to the Veteran's in-service asbestos exposure, and a remand is required for an addendum medical opinion addressing this inquiry. Additionally, since the December 2020 VA examination, the Veteran has submitted private treatment records showing he appeared at his local emergency department in April 2021 with complaints of fever, fatigue, sweats, and shortness of breath. A chest computed tomography was conducted and revealed multifocal bilateral pulmonary infiltrates, tiny left pleural effusions, and no pulmonary masses. The Veteran was diagnosed with bilateral pneumonia and asbestosis; however the diagnosing physician did not explain why the diagnostic testing showed asbestosis as opposed to the pulmonary nodules and mild RVD already documented in the record. Upon remand, an addendum medical opinion shall be obtained to address whether this new pulmonary diagnosis is etiologically related to the Veteran's in-service asbestos exposure. Lastly, if the RO's evidentiary development confirms that the Veteran was exposed to herbicide agents due to qualifying service under 38 U.S.C. § 1116A, the VA examiner is requested to address whether any of the Veteran's current respiratory disabilities are the result of presumed in-service exposure to herbicide agents. Varicose Veins In the November 2020 decision, the Board remanded the Veteran's claim seeking service connection for varicose veins for additional evidentiary development, to include a VA medical opinion addressing whether the Veteran's current varicose veins were etiologically related to the Veteran's active duty service, to include certain claimed exposures. Following an in-person assessment, the December 2020 VA examiner issued a negative nexus opinion. The VA examiner acknowledged the Veteran's minimal in-service asbestos exposure, but stated there was no confirmation in the record that the Veteran was exposed to dioxins, radiation, or other chemicals and contaminants. The VA examiner explained that the medical literature did not demonstrate a causal relationship between asbestos exposure and varicosities. The VA examiner explained that the record contained documentation of body mass indexes in the overweight and obese categories, and obesity was a recognized etiology of varicose veins and was the likely cause of the Veteran's current disability. In May 2021, the Veteran filed a statement challenging the factual basis underlying the VA examiner's medical opinion citing obesity as the most likely cause of his varicose veins. The Veteran argued that at the time of his December 2006 varicose vein procedures he was not obese and weighed between 175 and 183 pounds, well within normal weight standards. A review of the August 2006 treatment records from the Veteran's private vascular provider confirm that he weighed 175 pounds and was 5'11" in height. In this regard, the VA medical opinion appears to be based on an inaccurate factual premise; however there is no relevant information regarding the Veteran's weight between his service separation and 2006a gap of 30 yearsand thus, it remains plausible that the Veteran could have suffered obesity prior to 2006, when the Veteran's varicose veins were first identified in the record. Accordingly, the Board finds that an addendum VA medical opinion is required for the VA examiner to address the Veteran's contention that he was not overweight at the time of his 2006 varicose vein procedures and/or to ascertain further information from the Veteran regarding his weight history from service until 2006. If the RO's evidentiary development confirms that the Veteran was exposed to herbicide agents due to qualifying service under 38 U.S.C. § 1116A, the VA examiner is requested to address whether the Veteran's current varicose veins are the result of presumed in-service exposure to herbicide agents. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to verify whether the USS R.L Wilson (June 1970), USS Biddle (July 1973 to March 1975), and USS Milwaukee (July 1975 to July 1976) were within 12 nautical miles of the Republic of Vietnam while the Veteran was serving aboard the ships. 2. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the nature and etiology of the Veteran's current respiratory disability. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to undertake the following action: (a.) Review the medical opinions of the December 2020 VA examiner regarding the Veteran's current pulmonary nodules and RVD, and then address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's intrinsic RVD (as documented earlier in the appellate period according to the December 2020 VA examiner) is etiologically related to the Veteran's in-service asbestos exposure. (b.) Review the Veteran's April 2021 private emergency department records and the diagnosis of bilateral pneumonia and asbestosis. Following review of these records, confirm the validity of these diagnoses and opine whether they are at least as likely as not (50 percent probability or greater) the result of the Veteran's in-service asbestos exposure? (c.) If the RO determines that the Veteran is presumed to have been exposed to herbicide agents due to qualifying service under 38 U.S.C. § 1116A, is it at least as likely as not (50 percent probability or greater) that any respiratory disability during the appellate period (RVD, pulmonary nodules, and/or the April 2021 diagnoses) are etiologically related to the Veteran's presumed in-service herbicide agent exposure. 3. Obtain an addendum VA medical opinion from an appropriate VA examiner regarding the nature and etiology of the Veteran's varicose veins. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to undertake the following action: (a.) After reviewing the opinions of the December 2020 VA examiner, address the Veteran's contention that he was not overweight at the time of his 2006 varicose vein procedures. If more information is required regarding the Veteran's historical weight between service discharge and 2006, the VA examiner is requested to take appropriate efforts to obtain this information from the Veteran. (b.) Then, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's varicose veins are etiologically related to in-service exposure to asbestos. (c.) If the RO determines that the Veteran is presumed to have been exposed to herbicide agents due to qualifying service under 38 U.S.C. § 1116A, is it at least as likely as not (50 percent probability or greater) that the Veteran's varicose veins are etiologically related to his presumed in-service exposure to herbicide agents? 4. The RO is requested to ensure that all medical opinions issued by the VA examiners are accompanied by complete rationales based on each examiner's clinical experience and medical expertise; established medical principles; and/or citations to the electronic claims file, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.