Citation Nr: 21073218 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-15 817 DATE: December 7, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include asbestosis based on asbestos exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In this regard, while a March 2011 rating decision originally denied service connection for asbestosis and a July 2011 rating decision reconsidered such claim in light of a special mandate, the Board observes that new and material evidence related to the claim for asbestosis was received in March 2012 and May 2012, which is within one year of the issuance of the July 2011 rating decision. 38 C.F.R. § 3.156(b). Therefore, the Veteran's original claim is still pending. 1. Entitlement to service connection for a respiratory disorder is remanded. The Veteran asserts that his asbestosis was caused by asbestos exposure at Earl Ammunition Depot in Colt Neck, New Jersey, as buildings containing asbestos were being torn down and reconstructed. See March 2014 Statement. Additionally, he contends that he was exposed to asbestos while serving at Camp Lejeune in North Carolina and at an ammunition depot in Kosanek, New Jersey, as he claimed both had a history of asbestos use and it was in the air and drinking water at these two facilities. See August 2019 VA examination. He asserts that he has difficulty breathing and shortness of breath with coughing. See May 2012 Statement. This appeal was remanded in June 2018 because there was no opinion of record regarding whether the Veteran's asthma was related to his military service. As noted in the June 2018 remand, the Board found that while an April 2015 VA examiner addressed the etiology of the Veteran's asbestosis, no opinion addressing the etiology of his diagnosed asthma had been obtained. Consequently, the claim was remanded to obtain an opinion as to whether the Veteran's asthma had its onset in, or was otherwise related to, his military service. Thereafter, the Veteran underwent another VA examination in August 2019, at which time it was noted that pulmonary function tests did not support a diagnosis of asthma. Consequently, while the examiner opined that the Veteran's respiratory disorder was unrelated to his military service, the rationale only addressed the etiology of his asbestosis. Nonetheless, as asthma was diagnosed during the pendency of the claim, it is considered a current disability for the purpose of service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Further, VA treatment records also show a diagnosis of mild chronic obstructive pulmonary disease (COPD) in 2018. Therefore, the Board remanded this appeal in June 2020 in order to obtain an addendum opinion addressing whether asthma and COPD, which were diagnosed during the pendency of the claim, are related to the Veteran's military service. VA obtained an October 2020 opinion from Dr. A. in which he stated that the Veteran's asbestosis was less likely as not caused by or the result of the Veteran's exposure to contaminated water at Camp Lejeune. While the examiner acknowledged that the Veteran had a diagnosis of asthma, his opinion and rationale were limited to the diagnosis of asbestosis. VA obtained an October 2020 addendum opinion from Dr. C. The opinion checked both boxes indicating that the claimed condition was less likely as not and was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The opinion did not contain rationale to explain either marked boxed. As this opinion is internally inconsistent and contained inadequate rationale, VA requested a clarification from the examiner. VA obtained a February 2021 addendum opinion from Dr. C. The opinion stated that the Veteran's claimed respiratory disorder, to include asbestosis, is at least as likely as not incurred in or caused by the respiratory condition in service. However, the explanation provided does not include a rationale to support this positive opinion, and the opinion is internally inconsistent. The examiner stated that VA records show a diagnosis suggestive of asbestos exposure that the Veteran believes was due from exposure to water at Camp Lejeune. The examiner follows by saying that due to his civilian exposure to asbestosis, this more than likely worsened the condition. He concludes with stating "Thus it is more than likely that his asthma was caused by in service exposure." However, that is followed by a contradictory opinion stating that the Veteran's asthma and COPD are less likely than not incurred in or caused by his military service. As the opinion is internally inconsistent, VA requested clarification from the examiner. VA obtained an April 2021 addendum opinion from Dr. C. The examiner stated that the Veteran's medical records support that any currently diagnosed condition(s) related to the Veteran's claimed respiratory disorder are at least as likely as not incurred in or caused by the respiratory condition in service. The examiner further stated that the Veteran's asthma and COPD were at least as likely as not incurred in or caused by his military service. However, in both circumstances, the examiner does not provide rationale for these opinions beyond reiterating the Veteran's statements that he believes his asbestosis was due to exposure to water at Camp Lejeune and that his asthma/COPD was diagnosed in service. Accordingly, VA requested clarification from the examiner. VA obtained an August 2021 addendum opinion from Dr. C. He stated that the Veteran's respiratory condition, to include asbestosis, is less likely than not incurred in or caused by the respiratory condition in service. The examiner noted 2010 and 2011 records indicating plaques suggestive of asbestos exposure but stated there were no medical records concerning his respiratory conditions were incurred during service. The examiner also stated that the Veteran's asthma and COPD were less than likely incurred in or caused by service, because based on the medical records there was no evidence of COPD or asthma incurred while the Veteran was in service. The examiner did not provide adequate rationale for his conclusions, nor did he address his previously contradictory opinions and explain why his opinion has changed. Therefore, considering the internally inconsistent and conflicting opinions on whether the Veteran's asbestosis, asthma, or COPD, were related to service, remand is required for a new VA examiner opinion. Additionally, the record does not indicate that development was conducted to determine the extent of the Veteran's exposure to asbestos during service. The Veteran contends he was exposed to asbestos at Earl Ammunition Depot in Colt Neck, New Jersey, as buildings containing asbestos were being torn down and reconstructed, and at Camp Lejeune in North Carolina, and at an ammunition depot in Kosanek, New Jersey. The Veteran's service personnel records indicate his primary duty location was Marine Barracks NAD Earle Colts Neck, New Jersey, from September 1967 to September 1968. Therefore, on remand, the AOJ must complete and document efforts to determine the extent of the Veteran's exposure to asbestos. The matters are REMANDED for the following action: 1. Take all appropriate action necessary to develop the record or make formal findings of fact for the record regarding the nature and extent of the Veteran's exposure to asbestos during service. The Veteran has contended he had asbestos exposure while serving at Earl Ammunition Depot in Colts Neck, New Jersey (and/or Marine Barracks NAD Earle Colts Neck, New Jersey), Camp Lejeune in North Carolina, and at an ammunition depot in Kosanek, New Jersey. However, it does not appear the AOJ made any findings regarding the extent or frequency of his actual asbestos exposure, or the probability of his exposure based on the locations served and his miliary occupational specialty. All efforts to verify the reported exposure(s) to asbestos must be documented in the claims file. 2. Following this development, obtain an addendum opinion from a VA examiner other than the VA examiner who provided the October 2020, February 2021, April 2021, and August 2021 opinions regarding the nature and etiology of the Veteran's respiratory disorders. The claims file, including a copy of this Remand, must be made available to the examiner for review. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the record, the examiner is asked to provide a response to the following (rationale must be provided for each opinion given): (a.) Is the Veteran's asbestosis at least as likely as not (a 50 percent or greater probability) related to service, specifically, is it related to any asbestos exposure in service, to include his acknowledged exposure to contaminated water at Camp Lejeune? (b.) Is the Veteran's asthma at least as likely as not (a 50 percent or greater probability) related to service, specifically, is it related to any asbestos exposure in service, to include his acknowledged exposure to contaminated water at Camp Lejeune? (c.) Is the Veteran's COPD at least as likely as not (a 50 percent or greater probability) related to service, specifically, is it related to any asbestos exposure in service, to include his acknowledged exposure to contaminated water at Camp Lejeune? In providing these opinions, the examiner should address the October 2020, February 2021, April 2021, and August 2021 conflicting VA examiner opinions. The examiner should also address the Veteran's statements regarding his claimed asbestos exposure during service, and any development or findings made by the AOJ on asbestos exposure. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.