Citation Nr: 21011329 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-10 620 DATE: March 1, 2021 REMANDED The claim of entitlement to service connection for a lung disability (including interstitial lung disease, pulmonary fibrosis, and nodule scarring of the lungs), to include as due to exposure to asbestos, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1972 to December 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In an October 2019 decision, the Board denied service connection for a lung disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s October 2019 decision and remanding the matter for readjudication. The claim of entitlement to service connection for a lung disability (including interstitial lung disease, pulmonary fibrosis, and nodule scarring of the lungs), to include as due to exposure to asbestos, is remanded. The Veteran contends that he has a lung disorder which is due to his military service, because of in-service asbestos and/or hot steam exposure. Specifically, the Veteran’s service personnel records show that he worked as a Navy fireman recruit, a position which has a high probability of asbestos exposure. The Veteran also contends that he was involved in a boiler explosion while working in the engine room of the USS Coral Sea CV-43 in February 1974 off the coast of Vietnam and was subjected to extremely hot steam in an enclosed environment. Notably, while the Veteran’s service treatment records are negative for any complaints regarding the lungs, a September 1972 report of medical history, completed prior to the Veteran’s enlistment, shows a history of asthma. Post-service VA treatment records show an impression of pulmonary fibrosis as early as March 2013, but a March 2013 computed tomography (CT) scan of the Veteran’s lungs shows no evidence of pulmonary fibrosis and, instead, shows five scattered pulmonary nodules which were likely benign. The August 2020 Joint Motion found that the Board erred when it relied on a March 2014 VA respiratory examination in finding that the Veteran did not have a lung disability. A March 2014 VA respiratory examination shows diagnoses of interstitial lung disease from 1974 and pulmonary nodules of the lung from 2013. The examiner also noted the Veteran’s in-service incident in which he inhaled steam for 3 to 4 minutes, as well as Veteran’s inhaler use. The examiner also noted that the Veteran was unable to work in humidity and cool weather due to increased shortness of breath after minimal effort. However, the examiner also found that there was no evidence of “any other pulmonary condition,” that the Veteran was not on medications or inhalers for pulmonary issues, and that the CT scan and pulmonary function tests (PFTs) did not indicate interstitial disease, or pulmonary issues. Specifically, the Joint Motion found that the March 2014 VA opinion is inadequate because it fails to explain what the evidence of record indicates, is unclear whether the Veteran currently uses an inhaler, and is unclear as to the Veteran’s diagnosis. The examination contains two diagnoses from 1974 and 2013, but fails to specify which diagnosis, if any, the Veteran currently has and there is no explanation of what the PFTs suggest. Likewise, the medical opinion’s conclusion that the Veteran does not use an inhaler is contradicted by the examination report. The Joint Motion directed the Board to obtain an adequate medical opinion that is based on Veteran’s medical history and examination evidence. As such, a new VA examination and medical opinion regarding whether the Veteran currently has a lung disability should be obtained that considers the above findings. Also, as noted in the August 2020 Joint Motion, the most recent VA medical records in the claims file are dated in December 2015 and reflect ongoing treatment for a possible lung disability, as a March 2015 CT scan indicates that there was an abnormality and that further attention was needed. Therefore, all outstanding VA treatment records should be obtained on remand. (CONTINUED ON NEXT PAGE) The matter is REMANDED for the following action: 1. Request all outstanding VA treatment records from December 2015 to the present. 2. After completing the above to the extent possible, schedule the Veteran for an appropriate VA examination to identify the current nature and etiology of his claimed lung disability. All necessary testing should be completed. Based on the examination and review of the record, the examiner should provide opinions as to the following: (A) identify any and all lung disorder(s). (B) as to each current lung disorder, opine as to whether it is at least as likely not (50 percent probability or greater) caused by or is otherwise related to the Veteran’s active duty service, to include either in-service asbestos and/or hot steam exposure, and explain why. Attention is invited to the following: the Veteran’s service treatment records which are negative for any complaints regarding the lungs but show a history of asthma prior to the Veteran’s service in a September 1972 report of medical history (see VBMS, document labeled STR – Medical, receipt date 11/5/13, page 5); post-service VA treatment records showing an impression of pulmonary fibrosis as early as March 2013 but later, in a pulmonary CT, finding no evidence of pulmonary fibrosis and, instead, shows five scattered pulmonary nodules which were likely benign (see VBMS, documents labeled CAPRI, receipt date 11/15/13, page 5; CAPRI, receipt date 2/26/14, page 6); and the findings of the March 2014 VA examination showing diagnoses of interstitial lung disease from 1974 and pulmonary nodules of the lung from 2013 as well as the Veteran’s history of use of an inhaler (see VBMS, document labeled C&P Exam, receipt date 3/13/14, pages 1 and 2). The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.