Citation Nr: 21074552 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 09-05 848A DATE: December 15, 2021 REMANDED Service connection for an eye disability, to include as due to asbestos exposure, ionizing radiation, or as secondary to service-connected disabilities, is remanded. Service connection for a respiratory disability, to include as due to asbestos exposure, ionizing radiation, or as secondary to service-connected disabilities, is remanded. A compensable rating for service-connected eczema is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1974 to August 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2007 and August 2018 rating decisions. The Board remanded these matters in June 2020 along with several other service connection claims that were granted in April and September 2021 rating decisions. As an initial matter, the Veteran appears to allege a relationship between all claimed disabilities and ionizing radiation in service (which is confirmed by his service records). However, it remains unclear whether the Veteran has any eye or respiratory conditions consistent with radiogenic diseaseas defined in 38 C.F.R. § 3.311 (i.e., "a disease that may be induced by ionizing radiation")that would trigger specific development requirements under that section. Consequently, both service connection claims on appeal require medical clarification to determine whether 38 C.F.R. § 3.311 applies to this appeal. 1. Service connection for an eye disability, to include as due to asbestos exposure, ionizing radiation, or secondary to service-connected disabilities, is remanded. The prior remand ordered a VA examination to determine whether a vision disability might be related to service, including ionizing radiation, asbestos exposure, or other toxins. However, a May 2021 VA examination report and medical opinion (along with an August 2021 addendum opinion) did not specifically address these exposures and made only a general finding that the Veteran's eye condition (diagnosed as bilateral cataract formation) is unrelated to an in-service event because (1) it "appears to be the type that would normally form as a consequence of age" and (2) cataract formation in people over 60 is medically common. The examiner also did not discuss the significance of a January 1975 service record noting a swollen left eyelid, even though the August 2021 addendum explicitly identified symptoms like "bulging of the eyes" as a known consequence of hypothyroidism. Moreover, the Veteran's November 2021 brief alleges that the Veteran's cataracts are specifically related to asbestos exposure via "tears in the eyes" breaking down the retina. It also alleges that hypothyroidism and cataracts have been associated in medical literature dating back to 1928. In both cases, the Veteran cites "attached" medical literature that appears to be missing from the record, though basic search results online appear to confirm the existence of at least some literature consistent with those assertions. Finally, the Veteran was recently granted service connection for hypertension, which is commonly associated with cataracts, raising a question as to whether the two are related in this case as well. In light of the above, the Board finds that medical clarification is needed. 2. Service connection for a respiratory disability, to include as due to asbestos exposure, ionizing radiation, or secondary to service-connected hypertension is remanded. The prior remand ordered a VA examination report to determine the nature and etiology of the Veteran's claimed respiratory disease, and to specifically address whether they might be related to asbestos, ionizing radiation, and other toxin exposures in service. While the March 2021 VA examination and opinion obtained on remand acknowledged the existence of certain respiratory diseases that can be associated with asbestos and other toxin exposures, the examiner based a negative opinion on the fact that service records are silent for any respiratory issues and a February 1, 2006 record that purportedly attributed his asthma and shortness of breath to hypertension medication. It is unclear whether the examiner conducted a thorough review of the record, as, contrary to their findings, service records do include June and July 1976 records showing chest pain that lasted several months and were ultimately diagnosed as bronchitis. Moreover, the relevant portion of the February 2006 record they cite appears to be a summary of subjective reports rather than a professional etiological finding. Specifically, the Veteran reported wheezing that began after starting an angiotensin receptor blocker (ARB) for hypertension and said a prior doctor felt the two were related. However, he also reported continued breathing issues that were relieved by Albuterol (an asthma inhaler) even after stopping that treatment. Therefore, this matter requires additional clarification. 3. A compensable rating for service-connected eczema is remanded. The prior remand specifically ordered a VA examination to be conducted during an active eczema flare if possible and, if not, for the VA examiner to describe the presentation of this disability during flare-ups. Nothing in the March 2021 VA examination report obtained on remand indicates whether the examination was conducted during a flare-up or whether the examiner's assessment of eczema was an estimation of its presentation during a flare-up. Consequently, a new examination is needed. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal, TO INCLUDE BUT NOT LIMITED TO records of treatment for hypertension, shortness of breath, or vision conditions prior to February 2006, particularly when the Veteran began having breathing issues after starting ARBs during his time living in Texas or Kansas. 2. Schedule the Veteran for an in-person or telehealth (whichever is appropriate) examination by an ophthalmologist to determine the nature and cause of any eye or vision disabilities. Based on a review of the record, examination of the Veteran (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS), and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all vision or eye disabilities found or documented in the record, reconciling all findings with conflicting evidence in the record. (b.) Please also indicate whether the Veteran has any eye or vision disabilities (including but not limited to cataracts) consistent with VA's definition of a "radiogenic disease," i.e., one which may be induced by ionizing radiation.\ (c.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that any eye or vision disabilities (including cataracts) are related to the Veteran's military service, TO INCLUDE conceded asbestos and ionizing radiation exposure therein? The examiner MUST SPECIFICALLY discuss the alleged exposures, along with any other relevant service records (including but not limited to a January 1975 record noting a swollen left eyelid). (d.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that any eye or vision disabilities (including cataracts) are CAUSED BY OR PROXIMATELY DUE TO his service-connected hypertension or hypothyroidism? In so finding, the examiner should specifically consider and discuss the following: i. the significance of medical literature the Veteran referenced indicating a relationship between cataracts and hypothyroidism dating back to literature from 1928; ii. the likelihood that cataracts would have developed ABSENT comorbid hypertension or hypothyroidism; AND iii. whether the development of cataracts was reasonably foreseeable given his comorbid hypertension or hypothyroidism. (e.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that any eye or vision disabilities (including, but not limited to, cataracts) are WORSENED BEYOND THEIR NATURAL PROGRESSION TO ANY DEGREE AND FOR ANY AMOUNT OF TIME BY his service-connected hypertension or hypothyroidism? All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. 3. Schedule the Veteran for an in-person or telehealth (whichever is appropriate) examination by a pulmonologist, respiratory disease specialist, or other appropriate physician to determine the nature and cause of any respiratory diseases. Based on a review of the record, examination of the Veteran (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS), and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Please diagnose all respiratory disability entities found, including his documented asthma. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (b.) Please also indicate whether any diagnosed respiratory conditions (including asthma) that are consistent with VA's definition of "radiogenic disease," i.e., one which may be induced by ionizing radiation. (c.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that any respiratory disease (including asthma) is related to the Veteran's military service, TO INCLUDE conceded asbestos exposure and ionizing radiation therein? The examiner must also specifically consider and discuss the significance of service records suggesting a months-long course of bronchitis in 1976. (d.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that any respiratory disease (including asthma) is CAUSED BY OR PROXIMATELY DUE TO his service-connected hypertension or any current or former hypertension medications? The examiner should specifically consider and discuss the February 1, 2006 record noting a subjective history of wheezing and asthma symptoms that began after starting ARB medication for his hypertension, but continued even after stopping such treatment. The examiner should also consider the following in making his determination: i. The likelihood that asthma would have developed ABSENT his comorbid hypertension and any current or former associated medications; AND ii. Whether development of asthma was reasonably foreseeable given his comorbid hypertension and any current or former associated medications. (e.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that any respiratory condition (including asthma) is WORSENED BEYOND ITS NATURAL PROGRESSION TO ANY DEGREE AND FOR ANY AMOUNT OF TIME BY his service-connected hypertension or any current or former hypertension medications (as suggested in the February 1, 2006 record indicating asthma symptoms began after he started using ARB medication but continued even after stopping them)? All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. 4. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by a dermatologist or other appropriate physician to determine the current severity of his service-connected eczema. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS AND HOW IT VARIES WITH FLARE-UPS), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. If the examination is not being conducted during an active flare-up of eczema, the examiner MUST ASK THE VETERAN TO DESCRIBE HIS PRESENTATION DURING SUCH FLARE-UPS and consider such reports to provide an estimation of the extent and coverage of his eczema lesions AND any associated treatment changes during flare-ups. The examiner should also indicate whether any treatment for eczema is similar to systemic corticosteroids or immunosuppressive therapy, either under normal circumstances or during flare-ups. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. 5. If appropriate (i.e., if there is any medical indication that the Veteran has a radiogenic respiratory, eye, or vision disability), arrange for development pursuant to 38 C.F.R. § 3.311. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.