Citation Nr: 21021954 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-51 574 DATE: April 14, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure, is remanded. REASONS FOR REMAND The Veteran had active service from March 1978 to February 1982 and from June 1982 to June 1995. This matter was previously denied by the Board in March 2020. Thereafter, the Veteran and the Secretary of VA (parties) agreed to a Joint Motion for Remand (JMR), which was ordered by the U.S. Court of Appeals for Veterans Claims (Court) in December 2020. As discussed below, the Board finds that additional development is warranted, and the matter is remanded. Entitlement to service connection for COPD, to include as due to asbestos exposure, is remanded. In the December 2020 JMR, the parties agreed that the Board’s March 2020 decision failed to ensure compliance with the duty to assist when it relied on an inadequate medical opinion. The Veteran was afforded a VA examination in July 2017, at which time the examiner was asked whether the Veteran had a diagnosis of asbestosis related to his active service, and asbestos exposure therein. However, the examiner was not specifically asked to opine on the etiology of the Veteran’s COPD. Because the Veteran has a diagnosis of COPD and has specifically alleged that his COPD is related to his in-service asbestos exposure, the parties agreed that the July 2017 VA opinion is inadequate, and that, on remand, the Veteran should be afforded a new VA examination and opinion that directly addresses the etiology of his COPD. Thus, in light of the December 2020 JMR, a remand is required for VA to obtain an adequate addendum opinion regarding the Veteran’s claim on appeal. The Board is mindful that the parties’ December 2020 JMR also noted that the Board previously failed to provide an adequate statement of reasons or bases for its decision when it overlooked favorable evidence of record. At the August 2019 Board hearing, the Veteran testified that he sustained a rib fracture during active service, which he believed contributed to his lung disability. In the March 2020 decision, the Board acknowledged the Veteran’s reports of a rib injury during active service but found these reports not credible on the basis that there was no documentation of a rib injury in his service treatment records. However, the parties agreed that in finding the Veteran not credible, the Board overlooked several relevant service treatment records documenting an apparent rib injury. Specifically, in December 1982, the Veteran sought treatment for right side pain resulting from trauma sustained aboard his ship and was assessed with “post traumatic pain and tenderness to R Rib cage.” An x-ray conducted at the Naval Regional Medical Center in Orlando, FL, revealed “minimal cortical irregularity of the posterolateral aspect of the right 9th rib” and “a radiolucent area involving the posterolateral aspect of the right 11th rib,” and the radiologist noted that an undisplaced fracture in those regions could not be excluded. Given that such evidence directly contradicts the Board’s previous finding that a rib fracture was not documented in the service treatment records, the parties agreed that the Board erred when it failed to address this evidence. Given that remand is warranted to obtain an adequate addendum opinion, the evidence discussed immediately above will be properly considered by the Board when the matter returns for adjudication. The matter is REMANDED for the following action: Return the claims file to the VA examiner who provided the July 2017 opinion for an addendum opinion concerning the etiology of the Veteran’s COPD. If the July 2017 VA examiner is not available, an equally qualified examiner may be substituted. If the examiner believes that an in-person examination is needed to provide an informed opinion, then an examination should be scheduled. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, where applicable: • The Veteran had active service from March 1978 to February 1982 and from June 1982 to June 1995. • The Veteran claims that his COPD is a result of asbestos exposure during active service. At the August 2019 videoconference hearing, the Veteran testified that he was exposed to asbestos while working in the boiler room of a Navy ship. Alternatively, he asserted that his COPD was possibly related to reported in-service rib fractures in approximately 1983, when he was thrown against a bar and broke six or seven ribs on his right side. He stated that he did not have any lung problems when he quit smoking over 20 years ago and noted that his condition was getting worse over time with increased shortness of breath and asthma. See VBMS entry with document type, “Hearing Transcript,” receipt date 08/09/2019. • A February 1982 Report of Medical Examination at separation from his first period of active service documents a normal clinical evaluation of the Veteran’s lungs and chest. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #1 in the Subject field, on page 12. • The June 1982 Report of Medical History at entrance to his second period of active service shows the Veteran denied a history of relevant respiratory symptoms, including tuberculosis, asthma, shortness of breath, pain or pressure in chest, and chronic cough. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #1 in the Subject field, on page 14. • In December 1982, the Veteran sought treatment for right side pain resulting from trauma sustained aboard his ship and was assessed with “post traumatic pain and tenderness to R Rib cage.” See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #2 in the Subject field, on page 50. • A December 1982 x-ray conducted at the Naval Regional Medical Center in Orlando, FL, revealed “minimal cortical irregularity of the posterolateral aspect of the right 9th rib” and “a radiolucent area involving the posterolateral aspect of the right 11th rib,” and the radiologist noted that an undisplaced fracture in those regions could not be excluded. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #1 in the Subject field, on page 80. • A July 1988 Report of Medical Examination likewise documents a normal clinical evaluation of the lungs and chest. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #1 in the Subject field, on page 24. • A July 1988 Report of Medical History documents the Veteran’s denial of a history of respiratory symptoms, including tuberculosis, asthma, shortness of breath, pain or pressure in chest, and chronic cough. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #1 in the Subject field, on page 26. • An April 1993 asbestos medical surveillance program screening questionnaire documents the Veteran’s report of exposure to asbestos 11 years prior during his Navy career as a member of an engineering rip-out team onboard the USS Ranger (CV-61) in 1978. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #2 in the Subject field, on page 107. • A May 1993 Report of Medical Examination documents a normal clinical evaluation of the lungs and chest. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #1 in the Subject field, on page 20. • The May 1993 Report of Medical History documents the Veteran’s denial of a history of respiratory symptoms, including tuberculosis, asthma, shortness of breath, pain or pressure in chest, and chronic cough. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #1 in the Subject field, on page 22. • A November 1994 service treatment record shows that the Veteran was treated for early bronchitis. The Veteran reported decreased shortness of breath since yesterday, which was “pretty much gone.” The assessment was questionable bronchitis. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #2 in the Subject field, on page 124. • An April 1995 Report of Medical Examination approximately two months prior to service discharge documents a normal clinical evaluation of the lungs and chest. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #3 in the Subject field, on page 19. • In the April 1995 Report of Medical History, the Veteran denied a history of respiratory symptoms, , including tuberculosis, asthma, shortness of breath, pain or pressure in chest, and chronic cough. See VBMS entry with document type, “STR - Medical,” receipt date 07/03/2008, with “STRs #1 in the Subject field, on page 18. • Post-service VA treatment records from March 2011 document the Veteran’s report of dyspnea with moderate exertion and emphysema. He reported that he had a lung tapped a few weeks ago, and that he had previously smoked one pack per day for approximately 35 years, though he quit 10 years before. Upon respiratory examination, his lungs were clear, without rales, wheezing, or rhonchi. See VBMS entry with document type, “CAPRI,” receipt date 12/22/2015, with “#1 in the Subject field, on pages 33 & 36. • An October 2011 VA treatment record documents that the Veteran was assessed to be a remote smoker who was due for chest CT and possible thoracentesis for pleural effusion. See VBMS entry with document type, “CAPRI,” receipt date 12/22/2015, with “#1 in the Subject field, on pages 46-47. • Private treatment records from May 2012 document severe COPD with a noted etiology secondary to smoking. The Veteran’s past medical history included a chronic loculated effusion, noted to be possibly secondary to trauma. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 06/27/2015, on page 2. • A VA July 2015 new patient visit documents the Veteran’s report of asbestos exposure in 1978 during his Navy career. He also reported a prior injury to his right ribs when he was thrown against a towing ship cage during heavy waves, with multiple broken ribs on three different occasions, but without current problems. See VBMS entry with document type, “CAPRI,” receipt date 12/16/2015, on pages 48-49, and 53. • A December 2015 VA respiratory examination report shows the examiner entered diagnoses of emphysema and loculated effusion of the right lung, status post trauma, both since 2011. See VBMS entry with document type, “C&P Exam,” receipt date 12/16/2015, with “Respiratory” in the Subject field. • The December 2015 examiner also noted that the Veteran did not have a diagnosis of asbestosis. See VBMS entry with document type, “C&P Exam,” receipt date 12/16/2015, with “Medical opinions” in the Subject field. • A January 2016 VA chest CT documents a notation of some soft tissue density nodularity along the right lateral parietal pleura with some small calcific foci in the right parietal pleura which “could be related to asbestos exposure.” See VBMS entry with document type, “CAPRI,” receipt date 06/15/2016, on page 31. • In February 2016, the Veteran was seen for evaluation of pleural effusion. He reported progressively worsening dyspnea on exertion for the past five years to the point where he would get short of breath with regular daily activities, such as drying off when coming out of the shower or carrying anything heavier than groceries. He reported that he started smoking tobacco at age 24 and got up to a pack per day until he quit in 2002 after approximately 34 years. See VBMS entry with document type, “CAPRI,” receipt date 06/15/2016, on pages 14-15. • A July 2017 VA respiratory examination documents diagnoses of asthma and COPD, since 2009. The Veteran reported that he believed his respiratory condition was related to asbestos exposure during active service. He reported several prior lung taps to remove fluid, with the last in 2016, and noted that he smoked a pack per day for approximately 30 years, though he quit 20 years before. The examiner ultimately opined that the Veteran’s respiratory condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, as there was no medical evidence that the Veteran had a diagnosis of asbestosis related to in-service asbestos exposure. The examiner noted further that the Veteran had been diagnosed with COPD, that June 2016 pulmonary function tests (PFTs) documented severe obstruction with bronchodilator response that was consistent with progression of COPD, or asthma/COPD overlap, and that a May 2012 private treatment notation documented that the Veteran’s COPD was secondary to smoking. See VBMS entry with document type, “C&P Exam,” receipt date 07/14/2017. • Private treatment records from September 2017 document the Veteran’s report of chronic right-sided effusion, which had been present for years. He stated that while in the Navy, he was onboard a ship during a storm and was slammed against a metal structure, resulting in several fractured ribs and subsequent effusion. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 09/28/2017. • An August 2019 VA chest CT documented chronic partially loculated right-sided pleural effusion with associated right lower lobe atelectasis, which had increased in size compared to 2016. See VBMS entry with document type, “Medical Treatment Record - Government Facility,” receipt date 08/09/2019, with “#2” in the Subject field, on page 2. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The VA examiner is requested to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s COPD is related to his active service, to include (1) exposure to asbestos and/or (2) the right rib injury the Veteran sustained in service? Please state upon what facts and medical principles you base the opinion(s). A full rationale, including reference to supporting clinical data and/or medical literature as deemed appropriate, must be provided for all medical opinions given. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.