Citation Nr: 21073030 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-24 443 DATE: December 7, 2021 REMANDED Entitlement to service connection for a lung disorder, to include pulmonary fibrosis, chronic obstructive pulmonary disease (COPD), and/or asbestosis is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a gastric disorder, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a liver disorder is remanded. Entitlement to service connection for bronchitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1963 to October 1989. The Veteran passed away in January 2020. The appellant, the Veteran's surviving spouse, was granted substitution for the Veteran's pending claims by the Agency of Original Jurisdiction (AOJ) in February 2021. 1. Entitlement to service connection for a lung disorder, to include pulmonary fibrosis, COPD, and/or asbestosis; and entitlement to service connection for bronchitis In July 2018, the Board remanded the claims for entitlement to service connection for a lung disorder and bronchitis to the AOJ for additional development which included obtaining VA opinions as to whether bronchitis or a diagnosed lung disorder were caused by or incurred as a result of in-service exposure to asbestos. The Board observes that the Veteran's service treatment records document in-service exposure to asbestos. Additionally, the Veteran's service treatment records document numerous complaints of and treatment for chronic cough and bronchitis. Although the AOJ obtained VA opinions regarding the Veteran's bronchitis and lung disorder in August 2021, the VA examiner did not address whether the Veteran's lung disorder or bronchitis were related to his in-service asbestos exposure. Moreover, the opinions did not discuss the numerous in-service complaints of chronic cough documented in the service treatment records. Accordingly, remand for a new VA opinion is warranted. 2. Entitlement to service connection for obstructive sleep apnea In compliance with the Board's July 2018 Remand, the AOJ obtained a VA opinion addressing the etiology of the Veteran's obstructive sleep apnea. In support of his claim, the Veteran submitted a lay statement from his wife noting that she observed him snore since November 1965. Although the AOJ obtained a VA opinion pertaining to the etiology of the Veteran's obstructive sleep apnea in August 2021, the VA examiner did not address or consider this pertinent evidence in the opinion provided. Further, the August 2021 VA opinion was premised only on the finding that the Veteran's service treatment records were negative for findings of sleep apnea during service. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Because the VA opinion was based solely on a lack of evidence of sleep apnea in the service treatment records, and failed to adequately consider the competent lay statement of record, a new VA opinion is warranted. 3. Entitlement to service connection for hypertension A VA opinion addressing the etiology of the Veteran's hypertension was obtained in August 2021. The VA examiner opined that the Veteran's hypertension was not related to his active duty service because the Veteran's blood pressure was only found to be "elevated once" during his active duty service. However, review of the service treatment records reveals numerous findings of elevated blood pressure, as there are multiple findings of diastolic blood pressure of 90 mm. or greater, which meets VA's regulatory definition of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) ("the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90 mm.). Accordingly, the August 2021 examiner's conclusion that there was only one instance of elevated blood pressure in the service treatment records is inaccurate, and a new VA opinion is required. The examiner also opined that the Veteran's hypertension was not related to his service-connected diabetes mellitus, type II, because "HTN is a separate entity entirely from the DM and unrelated to it." The examiner then noted that diabetes is a risk factor for high blood pressure, but surmised that a risk factor does not equate with causation. However, the examiner did not discuss or consider whether the Veteran's hypertension was aggravated by his service-connected diabetes. Accordingly, a new VA examination addressing aggravation is required. 4. Entitlement to service connection for a gastric disorder, to include as secondary to a service-connected disability; and entitlement to service connection for a liver disorder In its July 2018 Remand, the Board requested that the Veteran be provided with a VA opinion to determine the etiology of his gastric and liver disabilities, and noted that a December 2008 private medical opinion indicated that all of the Veteran's disabilities had their onset during military service. In August 2021 VA opinions, the examiner concluded that the Veteran's gastric disorder and liver disorder were not related to his active duty service because "[t]here is no literature that supports AO exposure as the cause of a gastric disability" and because "[t]here is no medical literature supporting AO exposure as a causative etiology" for a liver disorder. The examiner did not provide an opinion as to whether the Veteran's gastric disorder or liver disorder had their onset during active duty service, as requested by the Board's July 2018 Remand. Accordingly, remand for a new VA opinion is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders). Additionally, the Board observes that an August 2009 private medical treatment record reflects a finding that the Veteran's gastric ulcer was most likely caused by H. Pylori and the blood thinners that he was prescribed. Review of the records show that the Veteran was prescribed both Plavix and Aspirin at that time. Accordingly, an opinion as to whether the Veteran's gastric ulcer was caused or aggravated by a service-connected disability for which these medications were prescribed is indicated. The matters are REMANDED for the following action: 1. Obtain new VA opinions by an appropriate physician to determine the etiology of the Veteran's bronchitis and lung disabilities, diagnosed in the record as interstitial fibrosis, COPD, and asbestosis. To the extent possible, the examiner should be different from the August 2021 examiner. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the report. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's bronchitis and/or any of his lung disorders were incurred in, or caused by, his active duty service, to include in-service exposure to asbestos, which is documented in the service treatment records. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran's lay statements. The examiner is also asked to address the numerous reports of bronchitis and chronic cough documented in the service treatment records. The examiner is advised that the Veteran's reports of observable symptomatology are probative evidence. 2. Obtain a new VA opinion by an appropriate physician to determine the etiology of the Veteran's obstructive sleep apnea. To the extent possible, the examiner should be different from the August 2021 examiner. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the report. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's obstructive sleep apnea was incurred in, or caused by, his active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the lay statements regarding in-service and post-service symptomatology. Specifically, the examiner is asked to address the Veteran's wife's lay statement that he snored since active duty service. Also, the examiner is advised that a lay person is competent to report observable symptomatology. 3. Obtain a new VA opinion by an appropriate physician to determine the etiology of the Veteran's hypertension. To the extent possible, the examiner should be different from the August 2021 examiner. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the report. Based upon a complete review of the evidence of record, the VA examiner must provide the following opinions: (a.) Is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's hypertension was incurred in, or caused by, his active duty service? (b.) Is at least as likely as not that the Veteran's hypertension was proximately due to or aggravated by any service-connected disability, to include diabetes mellitus, type II? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that hypertension was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner must consider and discuss the service treatment records which document numerous instances of blood pressure with diastolic readings of 90 mm. or greater, which meets VA's definition of hypertension under the pertinent regulations. 4. Obtain a new VA opinion by an appropriate physician to determine the etiology of the Veteran's gastric disorder. To the extent possible, the examiner should be different from the August 2021 examiner. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the report. Based upon a complete review of the evidence of record, the VA examiner must provide the following opinions: (a.) Is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's gastric disorder was incurred in, or caused by, his active duty service? (b.) Is at least as likely as not that the Veteran's gastric disorder was proximately due to or aggravated by any service-connected disability, to any disability for which he was prescribed Plavix and Aspirin? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the gastric disorder was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner must consider and discuss the pertinent evidence of record, including the private medical opinions noting the onset of the Veteran's gastric disorder in active duty service and the medical finding that the Veteran's gastric disorder was caused, in part, by the blood thinners that he was prescribed. 5. Obtain a new VA opinion by an appropriate physician to determine the etiology of the Veteran's liver disorder. To the extent possible, the examiner should be different from the August 2021 examiner. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the report. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's liver disorder was incurred in, or caused by, his active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss the pertinent evidence of record, including the private medical opinion noting the onset of the Veteran's liver disorder in active duty service. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.