Citation Nr: 21014697 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-38 754A DATE: March 15, 2021 ORDER The claim for service connection for mesothelioma is denied. REMANDED The claim for service connection for cataracts is remanded. The claim for service connection for diverticulitis is remanded. The claim for an enlarged prostate is remanded. The claim for urinary tract infections is remanded. FINDING OF FACT The medical evidence does not establish that the Veteran is diagnosed with mesothelioma. CONCLUSION OF LAW The criteria for service connection for mesothelioma are not met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy on active service from January 1964 to January 1966. He had a year and three months of other service and, after his discharge in 1966, he served in the United States Navy Reserve, completing multiple periods of active and inactive duty until his retirement in 1995. Service personnel records show the Veteran served in Vietnam, and that he was awarded the Combat Action Ribbon. He is therefore recognized as a Vietnam combat Veteran. This appeal arises before the Board of Veterans Appeals (Board) from an August 2017 rating decision of the United States Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. During the pendency of this appeal, service connection was granted for sleep apnea with chronic obstructive pulmonary disorder by a December 2020 rating decision and evaluated as 50 percent disabling, effective in July 2017. Because the claims for service connection has been granted for these claimed conditions, they are no longer for consideration in this appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (Where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). As discussed in greater detail below, the Board finds that the agency of original jurisdiction has not fulfilled the duty to notify and assist the Veteran in substantiating his claims for VA benefits as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). However, as the medical evidence demonstrates the Veteran has not been diagnosed with mesothelioma, the Board finds it may proceed with adjudication in this claim only. The other claims are the subject of a remand immediately following this decision. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Mesothelioma The Veteran and his representative argue that the Veteran manifests mesothelioma which is the result of his exposure to asbestos during active service. The Board concedes his exposure to asbestos. However, the Board finds that mesothelioma is not a condition which is subject to lay diagnosis; i.e., competent medical evidence is required to diagnose this disability, and, if present, whether it is due to in-service asbestos exposure. Unfortunately, the medical evidence does not support his assertions. VA treatment records and VA examination reports do not show that the Veteran is diagnosed with mesothelioma. The 2020 VA examiner for respiratory conditions diagnosed chronic obstructive pulmonary disease status-post asbestos exposure. In addition, he was also diagnosed with sleep apnea, resulting from service-connected posttraumatic stress disorder. Service connection was granted for these conditions, as reflected in the December 2020 rating decision. However, the examiner reported that mesothelioma was not found to be present. There are no other findings, statements, or opinions finding that the Veteran is diagnosed with mesothelioma currently or throughout the time period under appeal. The preponderance of the evidence is against a finding that the Veteran has, during the pendency of this claim, had a diagnosis of mesothelioma. Absent a diagnosis of mesothelioma, service-connection for mesothelioma cannot be warranted. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the benefit of the doubt rule does not apply; the preponderance of the evidence is against the claim; service connection for mesothelioma must be denied. The Board observes that certain regulations provide presumptions for disease resulting from exposure to herbicides, such as Agent Orange, and to asbestosis, as well as in the case of certain chronic diseases, including mesothelioma. As noted above, the Veteran served in Vietnam. As such he is presumed to be exposed to herbicides, including Agent Orange. In addition, VA accepts his exposure to asbestos. However, in the matter of this claim, the Board need not further discuss the application of these regulations, as there is no diagnosis of the claimed condition, mesothelioma. REASONS FOR REMAND The Veteran argues his cataracts are the result of his service-connected diabetes mellitus or, in the alternative, the result of aggravating by his exposure to asbestos. He reports getting dust, including asbestos, in his eyes in the same working conditions in which he was exposed to asbestos. In addition, he asserts he has diverticulitis, prostate problems, and urinary tract infections that are the result of his service-connected diabetes or, in the alternative, the result of his military service. However, the Board is frustrated in its analysis by an incomplete evidentiary record. In pertinent part, the Veteran was not notified that certain critical evidence, namely, private clinical findings and service records, had not been obtained. First, VA treatment records refer to private computed tomography, magnetic resonance imaging, and colonoscopy test results that are pertinent to the Veteran’s claims for gastrointestinal and genitourinary disorders, that have not been obtained. In addition, it is noted that the Veteran is treated privately for his eye conditions, to include bilateral pterygium, cataracts, and blepharitis. The absence of these test findings and treatment records frustrates appellate review. Second, the medical record currently before the Board reveals conflicts between what is reported in VA treatment records and the conclusions of the 2020 VA examiner and the agency of original jurisdiction in its 2020 supplemental statement of the case. The Board observes that the conflict may be the result of what appears to be an as-yet-unsettled set of symptoms and impairment. For example, the 2020 supplemental statement indicates that denial of service connection for the claimed diverticulitis, enlarged prostrate, and urinary tract infections was based on findings that these the conditions had not been diagnosed. However, this is in direct contradiction to VA treatment records showing the Veteran was treated with antibiotics for suspected and presumed diverticulitis and for benign prostatitic hypertrophy, including with Terazosin in 2019 and Tamsulosin in 2020. Moreover, 2016, 2017 and 2020 VA examinations show findings of a voiding dysfunction resulting from diabetes mellitus. Such manifestations, including obstructed voiding, weakened stream, and frequent voiding can also be the result of an enlarged prostate. Further VA review, including of the private medical treatment records and clinical test results, with additional medical opinion is necessary to resolve the conflict between VA examination findings and the diagnoses presented in the VA treatment records. Third, the Veteran’s service treatment records are incomplete. Service personnel records indicate the Veteran performed numerous periods of active duty, and of active and inactive duty for training from 1968 through 1995. There is no record that the Veteran was informed that his service records are incomplete, or that he was given the opportunity to himself identify and obtain records, including those he believes are relevant, and submit them on his own. Accordingly, the 2020 VA examination opinions and findings are not probative, and remand is required to cure the above defects. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); and Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The matters are REMANDED for the following action: 1. Make all appropriate efforts to obtain any outstanding relevant private treatment records, to include the private computed tomography, magnetic resonance imaging, and colonoscopy test results noted in the VA treatment records. If the records cannot be obtained, notify the Veteran and his representative and give them an opportunity to obtain them and provide copies to VA. 2. Make all appropriate efforts to obtain the Veteran’s complete service treatment records for his active and reserve military service. Ensure that all appropriate avenues to obtain these records are engaged, to include writing to the Veteran’s reserve units of assignment to ask that they provide any copies of the Veteran’s service treatment records in their possession. If the records cannot be obtained, notify the Veteran and his representative give them an opportunity to obtain the records and provide copies to VA. 3. Ensure that all outstanding VA treatment records are obtained. 4. Send the Veteran’s claims file to the appropriate eye specialist for a records review examination. If it is determined that another VA examination should be conducted, schedule the Veteran for an eye VA examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether the Veteran has any eye disorder to include cataracts and blepharitis that is at least as likely as not caused or aggravated by the service-connected diabetes mellitus or other service-connected disability or, in the alternative is at least as likely as not caused or aggravated by active service to include exposure to herbicides and asbestos, by an injury or disease during active reserve duty or by an injury during inactive reserve duty. The Veteran’s relevant lay statements as to aggravation of his eye condition by asbestos during active service must be discussed. A full and complete rationale for all opinions expressed is required. 5. Send the Veteran’s claims file to the appropriate specialist in gastrointestinal conditions for a records review examination. If it is determined that another VA examination should be conducted, schedule the Veteran for gastrointestinal VA examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether the Veteran has any gastrointestinal disorder to include diverticulitis that is at least as likely as not caused or aggravated by the service-connected diabetes mellitus or other service-connected disability or, in the alternative is at least as likely as not caused or aggravated by active service to include exposure to herbicides and asbestos, by an injury or disease during active reserve duty or by an injury during inactive reserve duty. The Veteran’s relevant lay statements must be discussed. A full and complete rationale for all opinions expressed is required. 6. Send the Veteran claims file to the appropriate specialist in genitourinary conditions for a records review examination. If it is determined that another VA examination should be conducted, schedule the Veteran for genitourinary VA examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether the Veteran has a genitourinary disorder including prostate and or urinary tract disorders that are at least as likely as not caused or aggravated by the service-connected diabetes mellitus or other service-connected disability or, in the alternative, is at least as likely as not caused or aggravated by active service to include exposure to herbicides and asbestos, by an injury or disease during active reserve duty or by an injury during inactive reserve duty. The Veteran’s relevant lay statements must be discussed. A full and complete rationale for all opinions expressed is required. 7. Then, readjudicate the claims on appeal. If any matter remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board for further consideration, if otherwise in order. John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bakke, Lila J. 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.