Citation Nr: 21064813 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-20 157 DATE: October 21, 2021 ORDER Entitlement to service connection for asthma is granted. Entitlement to service connection for calcified pulmonary plaques is granted. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for rhinitis is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The evidence of record supports a finding that the Veteran's asthma had in-service onset. 2. The evidence of record supports a finding that the Veteran's calcified pulmonary plaques are related to asbestos exposure while in service. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for calcified pulmonary plaques have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Navy from February 1964 to September 1967. A September 2018 Board decision denied reopening a claim for a service connection for asbestosis, reopened a claim for service connection for a lumbar disability, and denied service connection for a lumbar disability. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court), to the extent it denied reopening a claim for service connection for asbestosis and denied service connection for a lumbar disability. In July 2019, the Court issued an order that partially vacated the Board's September 2018 decision and remanded the above matters for adjudication consistent with the June 2019 Joint Motion for Partial Remand (JMPR) by the parties. The Board issued a decision in December 2019 reopening the claim for service connection for a respiratory disability and remanded the above matters consistent with the JMPR in order to obtain VA opinions. These matters were remanded by the Board in December 2019, and again in July 2020 for new medical opinions. Entitlement to service connection for respiratory disorders other than bronchitis. The Veteran is in receipt of a service-connection award for bronchitis, effective since September 30, 1967. The Veteran contends that he developed other lung disorders as a result of exposure to asbestos. See, e.g., June 2013 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board initially notes that in addition to service-connected bronchitis (a type of chronic obstructive pulmonary disease (COPD) (see Dorland's Illustrated Medical Dictionary (32nd ed. 2012)), the Veteran has also been noted to have asthma. Such was specifically diagnosed on examination at an April 2021 respiratory examination. Although a nexus opinion addressing whether asthma was incurred in service was not provided by the examiner, it was specifically noted within the report that onset of the disability was in 1967, during the Veteran's period of active duty service. Service treatment records confirm the presence of asthma during service, which was not present prior to entry. Insofar as the Veteran's current service-connection award for bronchitis does not include asthma, the Board resolves all doubt in the Veteran's favor and finds that such should be recognized as a service-connected disability. The Veteran has also been diagnosed as having calcified plaques on the lung. The Veteran asserts such are related to in-service asbestos exposure. The Board finds no reason to call into question the Veteran's reports of working with and breathing in asbestos during service. In June 2017, VA received a letter from the Veteran's pulmonologist, Dr. K.J. She reported that the Veteran had shown her a manual, which he was provided in service regarding his duties as a boiler technician. Notably, this manual explained how to mix asbestos powder into a paste to cover exposed pipes on ships. Dr. K.J. noted that the Veteran's lung function showed a range of 70% to 77% of predicted output on three separate metrics of lung performance. Dr. K.J. also noted that the Veteran's most recent chest x-ray (CXR) showed calcification along the left hemidiaphragm with no additional calcified plaques or pleural disease noted. Dr. K.J. discounted the Veteran's tobacco use as a causal contributor, observing that the Veteran's only tobacco exposure was during his military tour of duty, and, presumably, would not have played a significant role in his development of a respiratory disorder. Following the Board's most recent remand, the Veteran was examined in January 2021. The January 2021 examiner reasoned that the Veteran's calcified plaque on the left hemidiaphragm was at least as likely as not incurred in or caused by service because asbestos exposure is a risk factor for development of pulmonary ground glass opacities seen on imaging such as chest x-ray and CT chest scans. The examiner cited the Veteran's CT chest impression from February 2019, which showed centrilobular ground glass opacities within the lateral right lung and left upper lobe, which were of indeterminate etiology, but were likely infectious/inflammatory in nature. The examiner also referenced a nursing note from October 2014, which documented potential asbestos exposure while working on a naval ship during active military service. Upon review of the record, the evidence favors a finding that the Veteran's current calcified pulmonary plaques are related to in-service asbestos exposure. There are no other diagnoses of any asbestos-related lung diseases, to include asbestosis, in the treatment records. To this extent, the benefit sought on appeal is granted. (Continued on Next Page) REASONS FOR REMAND Entitlement to service connection for sinusitis. Entitlement to service connection for rhinitis. In its July 2020 remand of the Veteran's service-connection claim for a respiratory disability, the Board highlighted the fact that May 2015 and January 2018 VA treatment records documented that the Veteran had diagnoses of sinusitis and allergic rhinitis, respectively. The Board instructed the AOJ to obtain medical opinions addressing the etiology of all identified respiratory disabilities, and to specifically consider these sinusitis and rhinitis diagnoses. No opinions were obtained on remand prior to recertification to the Board. These matters are therefore remanded to ensure compliance with the Board's prior remand instructions. Stegall v. West, 11 Vet. App.268 (1998). Entitlement to service connection for a low back disability is remanded. As a preliminary matter, the Board acknowledges that this matter has been remanded previously for additional medical opinions, but that development has not been adequately completed. Here, the Veteran has contended that his lumbar spine disability is the result of a fall while in service. See July 2020 Statement in Support of Claim. Although the January 2021 examiner opined against a relationship between the Veteran's fall, the examiner did not provide adequate reasons or bases in support of the opinion, instead generally attributing the Veteran's back conditions (including lumbar disc bulge, annular tear, and/or compression) to joint aging and chronic overuse of the low back over a duration of many years, without providing reasons why joint aging and chronic overuse were more likely etiologies than an in-service fall. A May 1965 service treatment record shows that the Veteran was treated for a fall down a ladder (and against a hatch), fracturing his left scapula and injuring his right elbow (abscess with cellulitis). A March 1966 service treatment record shows that the Veteran "reportedly fell down stairs [...] and was found [] lying in an alley [...] with considerable discomfort on being moved and [was] brought to [the hospital] by ambulance." An August 1966 record shows that the Veteran underwent a left elbow operation (recession of his left radial head), as a result of an injury he suffered approximately seven months prior to admission after he was "pushed down stairs [...] fracturing the radial head [of his left elbow]." A March 1968 VA Request for Information associated with an original disability claim records that the Veteran alleged that he suffered a "back injury [...] and fractured arm" in February 1966 while aboard his ship. A March 1968 VA Application for Compensation or Pension records the Veteran's assertion that in February 1966 he injured his back falling from a 30-foot ladder in February 1966. The Board asks the examiner to consider the May 2010 examination report, noting motorcycle accidents in 2005 and 2007, the Veteran's belief that his back injury began while in service, when he fell 16 to 20 feet and landed between two deck plates, and his report of a history of back problems since service, with worsening in 2004, and treatment with physical therapy. The matters are REMANDED for the following action: 1. Obtain a medical opinion addressing the etiology of the Veteran's sinusitis and rhinitis disabilities. The claims file should be sent to, and reviewed by an appropriate clinician. Upon review of the record, the clinician should respond to the following: (a.) Is it at least as likely as not (approximately 50 percent probability) that the Veteran's sinusitis and/or rhinitis had onset in, or are otherwise related to the Veteran's period of active duty service, to specifically include in-service exposure to asbestos? If any disability more consistent with seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen, healing without residuals, this should be made clear. In providing a response, the reviewing clinician should assume as true that the Veteran was exposed to asbestos during service in performance of his duties as a boilerman. All opinions should be supported by a medical explanation or rationale. If in the opinion of the reviewing clinician, responses to the question above cannot be provided without an in-person or virtual examination or interview, such should be scheduled. 2. Obtain a medical opinion from a different clinician than the April 2020 and January 2021 examiners. The entire claims file must be provided to the reviewing clinician. All opinions must be supported with clear conclusions and supporting rationales. The clinician is asked to: (a.) Identify any lumbar disability found during the appeal period, to specifically include a lumbar disc bulge, annular tear, and/or compression. If these disabilities are part of the same underlying pathology or are a result of separate pathologies, the examiner should clarify this. (b.) For each lumbar disability identified, opine whether it is at least as likely as not (approximately 50 percent probability) that such disability began during service, or is related to an in-service event, injury, or disease, to specifically include: (1) the Veteran's May 1965 fall from a ladder, resulting in a left scapula fracture and right elbow injury (abscess with cellulitis) and (2) the Veteran's March 1966 fall down stairs, resulting in a left elbow operation (recession of his left radial head). For purposes of this decision, please assume as true the Veteran injured his back during these falls during service. In so doing, the reviewing clinician must consider: i. the March 1968 VA Request for Information associated with an original disability claim, which records that the Veteran alleged that he suffered a "back injury [...] and fractured arm" in February 1966 while aboard his ship. ii. the March 1968 VA Application for Compensation or Pension, which records the Veteran's assertion that in February 1966 he injured his back falling from a 30-foot ladder in February 1966. iii. the May 2010 examination report, noting motorcycle accidents in 2005 and 2007, the Veteran's belief that his back injury began while in service, when he fell 16 to 20 feet and landed between two deck plates, and his report of history of back problems since service, with worsening in 2004, and treatment with physical therapy. All opinions should be supported by a medical explanation or rationale. If in the opinion of the reviewing clinician, responses to the question above cannot be provided without an in-person or virtual examination or interview, such should be scheduled. 3. Thereafter, and after any additional adjudication deemed necessary, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, 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.