Citation Nr: 21011360 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-31 364 DATE: March 1, 2021 REMANDED Entitlement to service connection for a respiratory disease, to include asthma and interstitial lung disease, is remanded. REASONS FOR REMAND The Veteran had honorable active service with the United States Navy from November 1968 to August 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board remanded the claim for development and expanded the issue to include all respiratory disabilities. See Remand BVA or CAVC received April 2018. Then in July 2020, the Board remanded the claim again for development, to include an adequate opinion. See BVA Decision received July 2020. In August 2020, the Veteran was afforded a new VA examination. After a Supplemental Statement of the Case (SSOC), the claim is back before the Board. Entitlement to service connection for a respiratory disability. The Veteran seeks service connection for a respiratory disability, to include asthma and pulmonary fibrosis or interstitial lung disease. He alleges that his pre-existing asthma was aggravated during service and that other current respiratory diagnoses represent pathology that was superimposed on the condition during service, including by environmental exposures. The Veteran contends that his respiratory conditions were aggravated during service by exposure to asbestos and chipped red paint. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Asthma was not noted on the Veteran’s service entrance examination. However, asthma is a disease that is not evident when it is not symptomatic. Here, the Veteran has consistently acknowledged, and his service treatment records show, a history of having and receiving treatment for asthma since childhood. For example, in January 1969, the Veteran was noted with asthma since childhood. He had an examination during service showing bilateral wheezing after exertion. See STR-Medical received July 2012. Since the presumption of soundness has been rebutted, the key issue in this claim is whether the VA can rebut the presumption of aggravation with clear and unmistakable evidence that the Veteran’s respiratory condition (asthma) did not worsen beyond its normal progress during active service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). While the Veteran had a new VA examination in August 2020, the examiner stated that there was no clear and unmistakable evidence that the Veteran’s asthma did increase in severity during service or as a result of his service. See C&P Exam dated in August 2020. This statement by the examiner reverses the standard set. The August 2020 VA examiner also stated that there was no evidence for an increase in the severity of asthma during service due to the natural progression of the disease. The examiners statements appear to be inconsistent with the Veteran’s documented treatment for asthma during service. See STR-Medical received July 2012. As well as the Veteran’s statements that his conditions worsened. The Board also noted that the examiner did not discuss the Veteran’s documented treatment for wheezing and asthma during service or provide any reason why this treatment during service does not show aggravation. See C&P Exam dated in August 2020. The Board reiterates, that a pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Since the examiner did not apply the correct legal standard summarized above a remand is required to obtain an adequate opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board also notes the Veteran has contended that his respiratory condition (pulmonary fibrosis or interstitial lung disease) was due to the exposure to red paint and asbestos during service. He specifically reported that he was chipping red paint to preserve a ship. He stated he was on a Navy vessel and he slept near asbestos wrapped pipes. He reported not wearing any protection for his breathing during his work. See NOD received July 2013; Form 9 received August 2014. As the claims file does not contain a complete record of the Veteran’s service personnel records, relevant to his claim of exposure, further development is needed. On remand, the RO is directed to undertake all appropriate development to obtain the Veteran’s service personnel records from all periods of service from November 1968 to August 1970. In conclusion, a remand of this claim is required to obtain an adequate VA opinion and to obtain service personnel records to satisfy the duty to assist the Veteran. The matters are REMANDED for the following action: 1. Take all appropriate actions to attempt to obtain all potentially missing service personnel records. Please note that the Veteran had service from November 1968 to August 1970. 2. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Also, contact the Veteran and the representative of record in order to obtain outstanding VA or non-VA treatment records regarding the issue on appeal. For example, the Veteran reported to the VA examiner in October 2019, that he received inhaler medications and other treatment for asthma and pulmonary fibrosis. Request the Veteran to provide an authorization for release of any relevant private treatment. Document all attempts to obtain any treatment and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 4. After completing the above development, request an opinion from a VA medical expert to determine the nature and etiology of the Veteran’s current respiratory disability, including both asthma, and interstitial lung disease or pulmonary fibrosis. Following a full review of the claims file, and after reviewing this remand order, the examiner should answer the following question: (a.) Was the Veteran’s current respiratory disability (described as asthma), which concededly was noted during service, clearly and unmistakably NOT aggravated by active service? Please consider the Veteran’s treatment during service for asthma documented in the service treatment records in January 1969 and also please consider the separation examination dated in August 1970. A lack of aggravation may be shown by evidence that either: 1. clearly and unmistakably shows that the Veteran’s asthma did not worsen during service; OR 2. clearly and unmistakably shows that any increase in the Veteran’s asthma was only due to the natural progression of the disability. “Clear and unmistakable” evidence, means evidence that cannot be misunderstood or misinterpreted, but instead leads to an undeniable conclusion. 5. Then, as noted in number 4, the examiner should answer the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s respiratory condition, including pulmonary fibrosis or interstitial lung disease, is etiologically related to or caused by his service? Please consider, that the Veteran has contended that he chipped red paint to preserves ships without any protection and that he was regularly exposed to asbestos on a Navy vessel. 6. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.