Citation Nr: 21066926 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-24 579 DATE: November 2, 2021 ISSUES 1. Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for a disorder of the central nervous system that affects movement and causes tremors, to include Parkinson's Disease. REMANDED 1. Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), is remanded. 2. Entitlement to service connection for a disorder of the central nervous system that affects movement and causes tremors, to include Parkinson's Disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from November 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in August 2015 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. In May 2018, February 2020, and March 2021 the Board remanded this matter for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that additional VA examinations are necessary. See Stegall v. West,11 Vet. App. 268, 271(1998); Barr v. Nicholson,21 Vet. App. 303, 307(2007). The Board also notes that in its March 2021 remand the issue of entitlement to service connection for extreme joint pain was also remanded. Following the last Board remand, the issue was granted in full, and therefore, is no longer on appeal before the Board. Last, the Board notes that while the Veteran filed a claim for entitlement to service connection for Parkinson's Disease, the scope of the claim includes any disability that may reasonably be encompassed by the description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board has rephrased the issue to include any disability of the central nervous system that affects movement and causes tremors, to include Parkinson's Disease, as reflected above. 1. Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), is remanded. As noted in the Board's previous remand, as it relates to the Veteran's claimed COPD, the Veteran contends that this may be due to his exposure to toxins, solvents and other petroleum products while working on aircraft while stationed in Thailand. See Board hearing transcript, pp.31-33. The Board also notes that his Veteran's DD-214 indicates that he was an aircraft repairman. He also testified that began experiencing breathing problems shortly after his discharge from service. The Veteran underwent a VA examination of his COPD in November 2020 and in May 2021. As with the November 2020 examination, the May 2021 examination report does not clearly identify whether the Veteran has a current diagnosis a lung disability, and, for any disability present during the period on appeal, fails to provide a nexus opinion. The May 2021 VA examination noted a current diagnosis of chronic interstitial lung disease of the lower lungs with imaging and reported the onset to be in-service with symptoms of shortness of breath and difficulty breathing. The examiner concluded, "COPD was not diagnosed on day of exam due to no remarks made on the chest x-ray regarding diagnosis of COPD." The May 2021 examiner opined that the claimed condition was "less likely than not incurred in or caused by in-service injury, event, or illness," and noted that during service, exposure to toxins, solvents, and other petroleum products was acute only and that there is no evidence of chronicity of care and "symptoms are only subjective." Although the examiner noted that symptoms were subjective, the examiner did report that the objective exam was remarkable for interstitial lung disease. Confusingly, the examiner in the May 2021 report went on to opine that the claimed condition clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that "[t]emporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing COPD. A thorough review of medical literature fails to support that the pre-existing condition was permanently aggravated by service." Given the May 2021 examination report, the Board remands this matter for an additional VA examination to be conducted by a specialist pulmonary physician. The examiner is directed to clarify the Veteran's pulmonary diagnosis during the period on appeal. The Board notes that service connection may even be warranted for a disability that resolved during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). Moreover, the Board notes that the United States Court of Appeals has held that pain in the absence of a presently diagnosed condition can cause functional impairment which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, even when no diagnosis is found, the examiner should consider the Veteran's asserted symptoms and any functional impairment, as such may qualify as a disability for VA purposes. Therefore, for any and each lung disability identified upon remand, a nexus opinion must be furnished. In addition to a nexus opinion, the examiner must clarify whether such lung disability clearly and unmistakably pre-existed the Veteran's service, and if so, whether such pre-existing lung disability clearly and unmistakably was not aggravated due to service. Such opinions must be supported by thorough rationale that considerations the facts and record, the Veteran's medical and military history, and medical knowledge and literature. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner is advised that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. Further, a significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis, but that such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements. Last, the examiner is also reminded that under Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) presumption is not the sole method for showing causation, and thereby establishing service connection. See also Stefl v. Nicholson, 21 Vet. App. 120 (2007). 2. Entitlement to service connection for a disorder of the central nervous system that affects movement and causes tremors, to include Parkinson's Disease, is remanded. The Veteran asserts that his claimed Parkinson's Disease is related to his service. At the Veteran's August 2015 Board hearing before the undersigned, the Veteran's spouse testified that the Veteran's sleeping quarters was near the perimeter of the Korat Royal Thai Air Force Base (RTAFB) and that he also worked as a security officer near the perimeter. As with the Board's prior remands, the Board once again remands this matter for a VA examination to clarify the Veteran's diagnosis and/or disability, and for each disability identified, a nexus opinion must be furnished. The Veteran was last afforded a VA examination in May 2021. The VA examiner reported that "[t]here is no evidence of diagnosis of Parkinson's disease in the C-file at this time." Yet, the VA examiner reported severe stooped posture, balance impairment, and bradykinesia or slowed motion. The examiner further reported moderate loss of automatic movements and speech changes. No tremors were noted at time of examination. However, as noted in the prior Board remand, the file indicates, and the Veteran asserts, tremors. See VAMC notes from July 2016, September 2017 and November 2017. While the May 2021 VA examiner did not note a diagnosis of Parkinson's Disease, the examiner answered yes to the question, "Does the Veteran's Parkinson's impact his or her ability to work?" and stated that the Veteran has missed 2-4 weeks of work in the last 12 months, that his ability to communicate is impacted, and that he is unable to ambulate very well. Overall, the examiner concluded that there was no diagnosis confirmed because the Veteran simply has not yet been diagnosed with Parkinson's disease, but that there were symptoms present during the examination. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, and provided the following rationale: "[d]uring service, Parkinson's disease was acute only. There is no evidence of chronicity of care and symptoms are subjective only. A nexus has not been established." Given the May 2021 examination report, the Board remands this matter for an additional VA examination to be conducted by a specialist physician (neurologist). The examiner is directed to clarify the Veteran's diagnosis during the period on appeal. The Board notes that service connection may even be warranted for a disability that resolved during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). Moreover, as stated above, the Board again notes that the United States Court of Appeals has held that pain in the absence of a presently diagnosed condition can cause functional impairment which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, even when no diagnosis is found, the examiner should consider the Veteran's asserted symptoms and any functional impairment, as such may qualify as a disability for VA purposes. Therefore, for any and each disability identified upon remand, a nexus opinion must be furnished. Any opinions furnished must be supported by thorough rationale that considerations the facts and record, the Veteran's medical and military history, and medical knowledge and literature. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner is once again advised that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. Further, a significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis, but that such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements. Last, the examiner is again reminded that under Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) presumption is not the sole method for showing causation, and thereby establishing service connection. See also Stefl v. Nicholson, 21 Vet. App. 120 (2007). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Thereafter, schedule the Veteran for a VA examination by a pulmonary specialist physician to determine the nature and etiology of any lung disability, to include COPD. The examiner should review the entire claims file, to include a copy of this remand, and opine as to the following: a.) Identify any and all lung disabilities, to include any diagnosis of COPD. The examiner should consider the Veteran's asserted symptoms and any functional impairment, as such may qualify as a disability for VA purposes even when no diagnosis is found. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, if there is no clinical diagnosis for a lung disability, identify all the pain/symptoms that result in any functional impairment of earning capacity. b.) For each disability identified in a.) (to include all symptoms that result in functional impairment of earning capacity), did the disability clearly and unmistakably preexist the appellant's period of active-duty service? If so, is the preexisting disability clearly and unmistakably NOT aggravated in service? c.) For any respiratory disorder found to have not preexisted service, the examiner must provide an opinion regarding whether the respiratory disability (to include all symptoms that result in functional impairment of earning capacity) at least as likely as not (i.e., probability of 50 percent or greater) had its onset in service or is otherwise related to service, to include any conceded exposure to Agent Orange while working on the perimeter of the Korat Royal Thai Airforce Base (as conceded in the Board's June 2021 decision)? In rendering the opinion, consideration should be given to the Veteran's environmental exposures during service, to include chemicals. See June 2021 Board decision (conceding Agent Orange exposure in service); see August 2015 hearing transcript; see October 2014 lay statement. The examiner is again reminded that under Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) presumption is not the sole method for showing causation, and thereby establishing service connection. See also Stefl v. Nicholson, 21 Vet. App. 120 (2007). If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner should also be aware that in rendering an opinion, it must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 3. After completing directive (1.), schedule the Veteran for a VA examination by a neurologist to determine the nature and etiology of any disorder of the central nervous system that affects movement and causes tremors, to include Parkinson's Disease. The examiner should review the entire claims file, to include a copy of this remand, and opine as to the following: a.) Identify any and all disorders of the central nervous system that affects movement and causes tremors, to include Parkinson's Disease. The examiner should consider the Veteran's asserted symptoms and any functional impairment, as such may qualify as a disability for VA purposes even when no diagnosis is found. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, if there is no clinical diagnosis for a lung disability, identify all the pain/symptoms that result in any functional impairment of earning capacity. b.) For each disability identified in a.) (to include all symptoms that result in functional impairment of earning capacity), the examiner must provide an opinion as to whether the respiratory disability (to include all symptoms that result in functional impairment of earning capacity) at least as likely as not (i.e., probability of 50 percent or greater) had its onset in service or is otherwise related to service, to include conceded exposure to herbicides while working on the perimeter of the Korat Royal Thai Air Base (conceded in the Board's June 2021 decision)? In rendering the opinion, consideration should be given to the Veteran's environmental exposures during service, to include chemicals. See June 2021 Board decision (conceding Agent Orange exposure in service); see August 2015 hearing transcript; see October 2014 lay statement. The examiner is again reminded that under Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) presumption is not the sole method for showing causation, and thereby establishing service connection. See also Stefl v. Nicholson, 21 Vet. App. 120 (2007). If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner should also be aware that in rendering an opinion, it must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 4. Ensure that the examination reports are adequate. If deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide the Veteran and his Attorney with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.