Citation Nr: 21021750 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-05 321 DATE: April 13, 2021 REMANDED Entitlement to service connection for a respiratory disability, to include asbestosis, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from September 1965 to September 1969. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the claim for service connection for PTSD, the Board remanded the claim in September 2019 and November 2020 for further development. The claim is now returned to the Board for further appellate review. Regarding the respiratory claim, the September 2019 Board decision denied service connection. In November 2020, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion by the parties to vacate the September 2019 Board decision to the extent it denied service connection for a respiratory disability, and the Court remanded the claim back to the Board for further appellate review. 1. Entitlement to service connection for a respiratory disability, to include asbestosis The Veteran claims he has a respiratory disability, to include asbestosis, due to his active service. His DD Form 214 shows he served in the U.S. Navy as a shipfitter pipefitter (SFP) from July 1965 to July 1969. VA has acknowledged that this occupational specialty involved minimal asbestos exposure. See M21-1, IV.ii.1.I.3.d. This estimate of minimal exposure may be an underestimate since the rating involves assembly and disassembly of insulated piping systems, especially by shipfitters aboard older vessels using asbestos insulation. Chest x-rays taken during his active service in September 1965, November 1966, July 1967, and January 1969 were all negative. See STR at p.9, 11, 13, 15 of 28. His separation examination report shows his chest x-ray was within normal limits. See id. at p.2. No chest complaints are shown in service. Post-service, the first record of complaint is an August 2009 private medical record showing diagnosed asthma and chronic bronchitis. See Records, received April 2015 at p.11 of 37. A February 2013 private treatment record showing diagnosed emphysema and nicotine dependence. See Records, received April 2015 at p.7 of 10; see also CAPRI, received February 2021 at p.55 of 79 (emphysema). A February 2020 VA chest CT report shows an impression of a small pleural plaque on left upper lobe that “could be from an old, healed infection or trauma. Asbestos exposure is an additional consideration but would typically have multiple calcified plaques.” See CAPRI, received May 2020 at p.5 of 48. An October 2020 x-ray report shows COPD was found. See Examination report, received January 27, 2021 at p.1. The Veteran was afforded an October 2015 VA examination. The examiner noted diagnoses of emphysema and COPD with dates “unsure.” The examiner opined that it is less likely than not that the Veteran’s “respiratory issues” were caused by his service, including minimal asbestos exposure due to his occupational specialty. The examiner reasoned in part that the Veteran had a long 49-year history of tobacco use, and that it is more likely than not that his respiratory issues are due to persistent tobacco use. See also CAPRI, received February 2016 at p.79 of 221. The October 2015 examination report also listed asbestosis in the diagnosis section, but it is unclear whether the examiner intended to diagnose asbestosis, as opposed to merely listing it as a claimed condition. As noted above, the examiner attributed the Veteran’s “respiratory issues” to smoking for 49 years. At the same time, however, the examiner did note that a February 2006 medical record showed the Veteran reported post-service asbestos exposure from 1986 to 1992. The Board is cognizant that even if the Veteran had post-service asbestos exposure, he may nonetheless prove entitlement to service connection for asbestosis. Any post-service asbestos exposure does not preclude service connection based on in-service asbestos exposure. The Joint Motion by the parties shows they agreed that the VA examiner failed to clarify whether the Veteran has asbestosis that was caused by his active service. Therefore, the Board will remand the claim for a new VA medical opinion to clarify whether the Veteran has a current asbestosis disability, and if so, whether it was caused by his active service. In addition, on remand, the AOJ should search for VA chest x-ray reports or other chest imaging reports dated in June 5, 2000, and February 14, 2006 that were referenced by the October 2015 VA examiner so they may be associated with the claims file (as noted by the parties in their joint motion for partial remand). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran claims he has PTSD due to his active service. He reported in stressor statements that he witnessed wounded soldiers and body parts while serving in the Vietnam area, and that his ship, the USS Sutter County, LST-1150, came under enemy fire. See Forms 21-0781, December 2014 (two separate forms of same date) and January 2020. Most recently, in November 2020, the Board remanded the claim so that a new VA examination be performed or a medical opinion could be obtained to address whether the Veteran has PTSD due to his active service, and also to address the Veteran’s 2014 diagnosis of an adjustment disorder. A February 2021 VA medical opinion shows the examiner diagnosed an unspecified neurocognitive disorder that had an onset in 2015, and that the Veteran’s cognitive decline was suggestive of frontal temporal dementia, which is a slow progression due to degeneration of nerve/brain cells that cannot be impacted by an experience or stressor. The Board acknowledges that the Veteran’s representative noted in his March 2021 brief that the VA examiner did not specifically address the PTSD diagnostic criteria. The Board also acknowledges that although the examiner referenced the two prior VA examinations from 2015 and 2019, the examiner did not address the Veteran’s diagnosed adjustment disorder from 2014, or his diagnosed major depressive disorder and a trauma and stress-related disorder in 2015, which stress-related disorder diagnosis was later changed to PTSD. See Records, received December 4, 2020 at p.8-9 of 149, and p.1-27 of 27 (two sets), January 19, 2021 at p.8 of 40, and January 28, 2021 at p.1 of 10; CAPRI, received September 2018 at p.88. Therefore, the Board finds the claim should be remanded for a new VA examination, and that the examiner should address the PTSD diagnostic criteria, as well as the private treatment records in the file dated since 2015 showing treatment for an adjustment disorder, a major depressive disorder, and trauma and stress-related disorder, later changed to PTSD. In addition, there is no record in the file that the claimed stressors were ever developed for verification. Therefore, on remand, the AOJ should seek verification of the Veteran’s reported stressors – including his report of witnessing and transporting wounded soldiers and seeing body parts, and his report that his ship, the USS Sutter County came under enemy fire in the around Vietnam theater sometime between 1968 and 1969. The matters are REMANDED for the following action: 1. Associate with the claims file any VA chest x-ray records or other chest or lung radiology reports dated on June 5, 2000, and February 14, 2006 (which were referenced by the October 2015 VA examiner). After the above development has been completed, obtain a new VA medical opinion based on a review of the entire claims file, including this remand, to clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran currently has asbestosis that was caused by his active service – including conceded minimal asbestos exposure based on his occupational specialty as a shipfitter pipefitter (SFP). Also ask the VA examiner to address whether the Veteran has emphysema or COPD due to his active service. Direct the VA examiner’s attention to an August 2009 private treatment record showing diagnosed asthma and chronic bronchitis, a February 2013 private record showing diagnosed emphysema, and a February 2020 VA chest CT scan report noting that a left lobe pleural plaque could possibly be due to asbestos exposure, and an October 2020 chest x-ray report indicating COPD. See Records, received April 2015 at p.11 of 37; Records, received April 2015 at p.7 of 10; CAPRI, received February 2021 at p.55 of 79 (emphysema); CAPRI, received May 2020 at p.5 of 48; Examination report, received January 27, 2021 at p.1 (chest radiology). An examination is necessary if required by the examiner to form an opinion. Explain to the VA examiner that regardless of whether the Veteran had any post-service civilian occupational asbestos exposure, service connection may still be awarded for asbestosis if there is a current asbestosis diagnosis and a nexus to asbestos exposure during service. Any post-service asbestos exposure does not preclude service connection based on in-service asbestos exposure. Any opinion must be accompanied by a complete rationale. 2. Seek to verify the Veteran’s stressors he reported in December 2014 and January 2020 Forms 21-0781 of witnessing wounded soldiers being transported, and witnessing body parts, while serving in the Vietnam theater between 1968 and 1969, and that his ship, the USS Sutter County LST-1150, came under enemy fire. See Forms 21-0781, March 2012, December 2014 (two separate forms of same date), and January 2020. 3. After the above development in paragraph (3) has been completed, afford the Veteran a new VA examination to address the nature and etiology of his claimed acquired psychiatric disorder – to include PTSD. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should opine as to whether it is “at least as likely as not” that any acquired psychiatric disorder identified on examination is related to the Veteran’s active service. Ask the VA examiner to specifically address the DSM-V diagnostic criteria for PTSD. Also, ask the VA examiner to address the Veteran’s diagnosed adjustment disorder in 2014, major depressive disorder diagnosed in 2015, and trauma or stress-related disorder diagnosed in 2015, later changed to PTSD. The examiner should clarify whether the Veteran currently has, or ever had, any of these diagnosed disorders at any time since 2014, and if so, whether it is at least as likely as not caused by his active service. Direct the VA examiner’s attention to records of diagnosed adjustment disorder in 2014, major depressive disorder diagnosed in 2015, and trauma or stress-related disorder diagnosed in 2015, later changed to PTSD. See Records, received December 4, 2020 at p.8-9 of 149, and p.1-27 of 27 (two sets), January 19, 2021 at p.8 of 40, and January 28, 2021 at p.1 of 10; CAPRI, received September 2018 at p.88. Any opinion must be accompanied by a complete rationale and address the PTSD diagnostic criteria, as well as the private treatment records in the file dated since 2015 showing treatment for an adjustment disorder, a major depressive disorder, and trauma and stress-related disorder, later changed to PTSD. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Juliano, 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.