Citation Nr: 21064749 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-26 799 DATE: October 21, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) for the purpose of retroactive benefits on the basis of substitution is granted. Entitlement to service connection for chronic bronchitis for the purpose of retroactive benefits on the basis of substitution is granted. Entitlement to service connection for pulmonary hypertension for the purpose of retroactive benefits on the basis of substitution is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as chronic adjustment disorder, for the purpose of retroactive benefits on the basis of substitution is granted. REMANDED Entitlement to service connection for sleep apnea for the purpose of retroactive benefits on the basis of substitution is remanded. FINDINGS OF FACT 1. The Veteran's COPD was at least as likely as not the result of in-service asbestos exposure. 2. The Veteran's chronic bronchitis was at least as likely as not proximately due to his COPD. 3. The Veteran's pulmonary hypertension was at least as likely as not proximately due to his COPD. 4. The Veteran's chronic adjustment disorder was at least as likely as not proximately due to his COPD. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD for the purpose of retroactive benefits on the basis of substitution have been met. 38 U.S.C. §§ 1131, 5107, 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.1010. 2. The criteria for service connection for chronic bronchitis for the purpose of retroactive benefits on the basis of substitution have been met. 38 U.S.C. §§ 1131, 5107; 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.1010. 3. The criteria for service connection for pulmonary hypertension for the purpose of retroactive benefits on the basis of substitution have been met. 38 U.S.C. §§ 1131, 5107; 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.1010. 4. The criteria for service connection for an acquired psychiatric disorder, diagnosed as chronic adjustment disorder, for the purpose of retroactive benefits on the basis of substitution have been met. 38 U.S.C. §§ 1131, 5107; 5121A; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from June 1980 to June 1984 and in the Army from July 1986 to June 1989. He died in October 2020. The Appellant is his surviving spouse. She has been substituted for the Veteran to process his pending claims to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and the Appellant appeared at a hearing before the undersigned in June 2019. A transcript of the hearing is of record. In September 2019, the Board remanded the issues on appeal for further development, which will be discussed in more detail, as necessary, below. 1. Entitlement to service connection for COPD for the purpose of retroactive benefits on the basis of substitution is granted. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Prior to his death, the Veteran asserted his well-documented COPD was the result of asbestos exposure during his active service in the Navy from June 1980 to June 1984. Subsequent to the Board's June 2019 remand, the Agency of Original Jurisdiction (AOJ) conceded the Veteran's military occupational specialty in the Navy has a high probability of asbestos exposure; therefore, the Board finds the in-service injury element of the Veteran's claim has been established. The only issue that remains is whether a nexus between the in-service asbestos exposure and the Veteran's COPD. In May 2014, the Veteran submitted an opinion from a private physician, M.M., M.D., that suggests a nexus between in-service asbestos exposure and COPD. M.M., M.D., discussed both the Veteran's history of smoking and in-service asbestos exposure and explained that the Veteran's COPD was likely caused by a combination of both. M.M., M.D., reported that no medical professional would be able to arrive at a precise etiology because it is not possible to parse out the percentages for each factor for causation purposes, ultimately concluding the most accurate nexus statement would be "that it is more likely than not that the Veteran's COPD was caused by both his smoking and his exposure to asbestos." In September 2019, the Board remanded the Veteran's claim for a new opinion, finding M.M., M.D., failed to adequately explain why it would be speculative for a medical professional to consider one of the Veteran's exposures a more likely causative factor. The AOJ obtained a new opinion in March 2020, but the March 2020 VA examiner merely stated there was no evidence the Veteran had been diagnosed as having asbestosis and did not otherwise address COPD, as requested, rendering that opinion inadequate to make an informed decision on the Veteran's claim. Yet, in May 2020, a VA treating physician noted the Veteran's COPD was "more likely than not" the result of his in-service exposure given the severity of his condition at that time, providing more support for the May 2014 opinion authored by M.M., M.D. Given the inadequacy of the March 2020 VA examiner's opinion and the fact that both providers who provided nexus opinions for COPD opined that it is "more likely than not" that in-service asbestos exposure played at least some causative role in the development of the Veteran's COPD, the Board finds the Veteran's COPD was at least as likely as not the result of in-service asbestos exposure. Undoubtedly, further medical inquiry could be undertaken in this regard. Yet, the Court of Appeals for Veterans Claims has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, at worst, evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Accordingly, resolving reasonable doubt in favor of the claimant, the Board finds service connection for COPD is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 532 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). 2. Entitlement to service connection for chronic bronchitis for the purpose of retroactive benefits on the basis of substitution is granted. 3. Entitlement to service connection for pulmonary hypertension for the purpose of retroactive benefits on the basis of substitution is granted. 4. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as chronic adjustment disorder, for the purpose of retroactive benefits on the basis of substitution is granted. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. The May 2014 opinion authored by M.M., M.D., explains the Veteran's chronic bronchitis and pulmonary hypertension were caused by his COPD, citing medical literature to support the conclusion provided in this regard. M.M., M.D., also confirmed the findings of VA providers who determined the Veteran's adjustment disorder was due, in part, to his COPD, as conceded by the AOJ in the November 2013 rating decision that led to the present appeal. There is no negative evidence regarding any of these secondary service connection claims. See Mariano, 17 Vet. App. at 312. Thus, the evidence establishes the claimed chronic bronchitis, pulmonary hypertension, and adjustment disorder are at least as likely as not proximately due to the now service-connected COPD. Resolving reasonable doubt in favor of the claimant, the Board finds service connection for chronic bronchitis, pulmonary hypertension, and adjustment disorder is warranted secondary to COPD. See Wise, 26 Vet. App. at 532. REASONS FOR REMAND Unfortunately, it appears the issue of service connection for sleep apnea was omitted from the Board's prior remand of the Veteran's appeal. As a result, the AOJ did not take any additional development action regarding that claim. The claim was also not addressed in the May 2014 opinion the Veteran submitted from M.M., M.D. The Board finds an opinion is necessary to ensure compliance with VA's duty to assist since there is evidence relating sleep apnea to the Veteran's pulmonary disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: Obtain an opinion regarding the issue of service connection for sleep apnea. The selected examiner must provide an opinion addressing whether the Veteran's sleep apnea was at least as likely as not proximately due to, or aggravated by, his service-connected COPD and/or chronic bronchitis. The opinion must address causation and aggravation separately to be deemed adequate. A mere conclusion regarding aggravation without a separate rationale is not sufficient. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation above the baseline level of disability. The examiner must be further advised the Veteran was competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner's report must include a complete rationale for all conclusion reached therein. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.