Citation Nr: 21023167 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 09-43 611 DATE: April 20, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for thrombocytopenia is denied. Entitlement to service connection for a respiratory disability is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for thoracolumbar spine disability is remanded. Entitlement to special monthly compensation based on aid and attendance is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his right ear hearing loss is at least as likely as not related to in-service noise exposure. 2. The preponderance of the evidence is against finding that thrombocytopenia began during active service, or is otherwise related to an in-service injury or disease. 3. Resolving reasonable doubt in the Veteran’s favor, the Veteran has a respiratory disability as a result of his in-service exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for thrombocytopenia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a respiratory disorder, to include asbestosis, are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to January 1968. The Veteran also served in the Navy reserve with various periods of active duty training and inactive duty training; the Veteran most recently served on active duty from January 1991 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2007 to January 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified, sitting in New Orleans, Louisiana, before the undersigned Veteran Law Judge via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. This case has been before the Board several times. In a December 2015 Joint Motion for Partial Remand, the parties agreed that the issue of entitlement to new and material evidence was not submitted to reopen a claim for radiculopathy of the lower extremities needed to be remanded by the Court. The Court ordered this issue to be remanded in a December 2015 Court Order. This issue has since been reopened by the Board and is now before the Board for adjudication on its merits. Service Connection 1. Entitlement to service connection for right ear hearing loss The Veteran contends that his right ear hearing loss is due to his noise exposure during service. Specifically, he claims that his hearing loss is due to working around heavy and loud equipment during desert Shield/Storm and also from being near ship guns while on a Navy vessel during the Vietnam war. The Board concludes that the Veteran has a current disability that is related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The December 2020 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) shows that the Veteran’s right ear hearing loss is considered to be a disability under 38 C.F.R. § 3.385. Auditory thresholds for three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are greater than 26 decibels. The Board acknowledges that the December 2020 examiner opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner explained that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. The examiner found that there was no report of complaints or treatment for hearing decrease in service treatment records or at separation. The Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As noted above, noise exposure has been conceded and has served as one of the reasons for the RO’s grant of entitlement to service connection for the Veteran’s left ear hearing loss. After careful consideration of all procurable and assembled date, the Board finds that a reasonable doubt arises regarding service origin of his hearing loss. When reasonable doubt arises, such doubt will be resolved in favor of the claimant. Specifically, reasonable doubt doctrine is applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. Here, the records show that the Veteran served on Desert Storm/Shield and during the Vietnam on a navy vessel. Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s right ear hearing loss is related to noise exposure during service. Accordingly, the Board finds that service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for thrombocytopenia The Veteran contends he has thrombocytopenia due to exposure to oilwell smoke or is an undiagnosed illness. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of thrombocytopenia, and evidence shows that he was exposed to chemicals and smoke during Desert Storm/Shield, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of thrombocytopenia began during service or is otherwise related to an in-service injury, event, or disease. The September 2017 examiner who conducted the Hematologic and Lymphatic Conditions Disability Benefits Questionnaire noted that the Veteran had a high platelet count in Arkansas in 2006 and had a bone marrow biopsy showing essential thrombocytosis. The examiner noted that he had thrombocytosis dating back to 2004. Bone marrow at that time was suggestive of essential thrombocytosis, but it was not officially diagnosed. The Veteran’s diagnosis was not until more than 10 years after separation from service. Following an examination, a May 2015 examiner opined that it was less likely than not that thrombocythemia was due to service in Southwest Asia as it is not known to be caused by environmental exposures. The examiner further noted that essential thrombocytosis was an idiopathic condition of unknown etiology. Based on a review of the evidence of record, the examiner opined that it was less likely than not that the Veteran’s thrombocytosis was related to service. The examiner explained that incidence of essential thrombocythemia is increased in African Americans, females, and older individuals. Some cases, especially when diagnosed in adolescence may be familial. A review of the medical literature showed no causal relationship between military service or herbicide or other chemical exposures. The examiner included several medical articles supporting her opinion. The examiners noted that the Veteran has a current diagnosis. Therefore, the Board finds that his increase platelet levels are not due to an undiagnosed illness. The examiner also noted that the etiology of thrombocytosis is not known. These examiners’ opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his thrombocythemia is related to an in-service injury, event, or disease (specifically oilwell smoke exposure). The Veteran, in this case, is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the examiner’s opinions. Entitlement to service connection for thrombocytopenia is not warranted. 3. Entitlement to service connection for asbestosis The Veteran contends that he has developed a lung disability as a result of asbestos exposure in service. Service connection means that a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303 (a). The Board notes there are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1, and opinions of the Court and General Counsel provide guidance in adjudicating these claims. VA’s M21-1 provides the following non-exclusive list of asbestos-related diseases/abnormalities: fibrosis, including asbestosis or interstitial pulmonary fibrosis; tumors; pleural effusions and fibrosis; pleural plaques, mesotheliomas of pleura and peritoneum; and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). See M21-1, part IV, Subpart ii, Chapter 2, Section C, Topic 2(b). However, service connection is not automatic, and a probative medical nexus opinion is still required. The M21-1 also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2(d). The M21-1 provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Diagnostic indicators include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 2(g). Here, the Veteran has a current diagnosis of a respiratory disorder. A January 2021 Respiratory Disability Benefits Questionnaire noted diagnoses for chronic obstructive pulmonary disease and elevation of right hemidiphragn with right basilar atelectasis. A May 1997 physician noted that the February 1997 chest x-ray showed that the Veteran had minimal irregular opacities throughout both bases. The examiner opined that the chest x-ray changes were due to asbestosis. An October 2008 treatment record notes a diagnosis of asbestosis. As to in-service incurrence, the Board concedes asbestos exposure due to the Veteran’s military occupation, Personnelman (PN) on a Navy ship during the Vietnam War. As to a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service, there a few opinions included in the record. In a May 1997 letter, Dr. G. explained that he had reviewed the occupational history of the Veteran which included working for Kaiser Aluminum from 1974 to 1979 and from 1979 to May 1981. The examiner noted that the Veteran served in the U.S. Navy from 1966 to 1968, working as an administrative supervisor and was exposed to asbestos in boiler rooms. The examiner noted that the Veteran February 1997 chest x-ray showed minimal irregular opacities throughout both bases. The examiner opined, to a reasonable degree of medical certainty, that the Veteran had chest x-ray changes which were due to asbestosis which he acquired through his occupational exposure to asbestos. In an October 2008 treatment record, a private physician diagnosed the Veteran with asbestosis based on the chest x-rays that showed interstitial fibrosis in lower lung zone. An October 2009 treatment records notes minimal interstitial fibrosis in the lower lung zones, possible early pleural plaques. The physician concluded that the Veteran had asbestos exposure. The January 2021 examiner opined that it was less likely than not that the Veteran’s lung disability was related to asbestos exposure as the there was not enough evidence to support a diagnosis of asbestosis. The May 1997 physician found that the Veteran had asbestosis that was due to occupational exposure to asbestos that includes exposure to asbestos in the Navy. The Board acknowledges that he may also have been exposed to asbestos during his work in a shipyard after service for Kaiser Aluminium. Despite this, the physician found that the Veteran was exposed to asbestos both in the Navy and while working for Kaiser Aluminium. The Board will resolve reasonable doubt in the Veteran’s favor. The Board finds that service connection is warranted because he has a diagnosis of asbestosis that is related to service. As the claim is being granted in full, it is not necessary to discuss the Veteran’s other theories of entitlement which include exposure to chemical during Desert Storm/Shield. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The September 2017 examiner opined that it did not appear that the Veteran’s right shoulder disability was directly related to his military service. The examiner did not discuss the Veteran’s report of a rotator cuff tear during service. For this reason, a remand is needed for an addendum opinion. 2. Entitlement to service connection for right lower extremity radiculopathy is remanded. 3. Entitlement to service connection for left lower extremity radiculopathy is remanded. The issues of entitlement to service connection for right and left lower extremity radiculopathy have been found to be secondary to a thoracolumbar spine disability. See July 2016 opinion. The issue of entitlement to thoracolumbar spine disability is being remanded below. The issues of entitlement to service connection for lower extremity radiculopathy cannot be resolved until the matter involving service connection for thoracolumbar spine has been adjudicated. The Board finds that the Veteran’s claims are inextricably intertwined, and therefore will be addressed together. Harris v. Derwinski, 1 Vet. App. 180 (1991). 4. Entitlement to service connection for thoracolumbar spine disability is remanded. 5. Entitlement to service connection for a cervical spine disability is remanded. The Veteran claims that he has degenerative bone disease due to unexplained Gulf War syndrome. The April 2015, September 2017, March 2018 examiners addressed traumatic arthritis but did not discuss whether this arthritis could be related to Southwest Asia exposures. An addendum opinion is needed to address this theory of contention. 6. Entitlement to special monthly compensation based on aid and attendance is remanded. The Veteran claims that he is entitled to special monthly compensation based on aid and assistance for service-connected disabilities. The Board acknowledges that the Veteran is receiving special monthly compensation based on housebound status since November 2009; however, the benefit of special monthly compensation based on aid and assistance is the greater benefit. Therefore, this issue of entitlement to special monthly compensation based on aid and attendance is not moot. The Veteran was afforded an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance in December 2019. The examiner found that the Veteran’s syncope, neuropathy, and degenerative joint disease limited the Veteran’s activities and functions. The Veteran needed assistance when bathing and tending to other hygiene needs. He was unable to prepare his own meals. He was also unable to buy groceries due to his disabilities. The issues of degenerative joint disease have been remanded. Therefore, the issue of a need of aid and attendance is inextricably intertwined, and therefore will be addressed together. In addition, an addendum opinion should also be provided as to the etiology of the Veteran’s syncope and whether the Veteran is in need of aid of attendance based solely on service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right shoulder disability is at least as likely as not related to shoulder injury in service, including the Veteran’s report of a rotator cuff tear and wearing a sling during service. The examiner is advised that the Veteran is competent to report injuries and symptoms in service, regardless of the contents of the service treatment records, and that the Veteran’s reports must be considered. The rationale for any opinions should also be provided. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s thoracolumbar spine disability and cervical spine disability are at least as likely as not related to exposures in Southwest Asia, including due to an undiagnosed illness. The Veteran claims to have a bone disease due to exposure while serving in Southwest Asia. A rationale must be included. (Continued on the next page)   3. After the above has been completed, an addendum opinion is needed from an appropriate clinician regarding the etiology of the Veteran’s syncope and whether the etiology of his syncope is a service-connected disability. The clinician should also opine as to whether the Veteran is in need of aid of attendance based solely on service-connected disabilities. 4. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.