Citation Nr: 21024870 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-41 819 DATE: April 26, 2021 REMANDED Entitlement to service connection for a respiratory disability other than adenocarcinoma of the lung prior to May 19, 2011 is remanded. REASONS FOR REMAND The Veteran had active service from June 1954 to February 1957. The Veteran died in March 2014, and the appellant has filed the claim as the Veteran’s surviving spouse. Regarding the procedural history of this matter, the Veteran’s original claim for service connection for respiratory disabilities was denied in a 1996 rating decision and was later requested to be reopened in March 2003. In a November 2011 rating decision, entitlement to service connection for adenocarcinoma of the lung (claimed as upper respiratory problems due to asbestos exposure in service), was granted, effective June 4, 2011. In a December 2011 rating decision, the effective date for this disability was adjusted to May 19, 2011. In January 2012, the Veteran asserted that his claim was still active and that it was a separate issue from his grant of service connection for adenocarcinoma of the lung. However, a January 2012 rating decision incorrectly characterized the Veteran’s January 2012 submission as a new claim for an earlier effective date for the grant of service connection for a respiratory disability. Upon appeal, a June 2019 Board denial of the issue continued this same mischaracterization. The Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court), and a July 2020 Joint Motion for Partial Remand (JMPR) noted that the matter was previously mischaracterized by VA and the matter was remanded to the Board. Thereafter, the matter was most recently remanded by the Board in December 2020 in order for initial adjudication of this matter by the Agency of Original Jurisdiction (AOJ). However, as discussed below, remand is again warranted for additional development. Entitlement to service connection for a respiratory disability other than adenocarcinoma of the lung prior to May 19, 2011 is remanded. As noted above, this matter was most recently remanded by the Board in December 2020 for initial adjudication of the claim of entitlement to service connection for a respiratory disability other than adenocarcinoma of the lung prior to May 19, 2011 consistent with the parties’ July 2020 JMPR. Thereafter, in February 2021, the RO obtained a medical opinion by a medical professional. Significantly, however, the resulting opinion was focused on whether the Veteran’s adenocarcinoma of the lung was related to active service, including asbestos exposure, rather than the relevant issue of entitlement to service connection for a respiratory disability other than adenocarcinoma of the lung prior to May 19, 2011. Additionally, in March 2021, the Veteran’s attorney resubmitted a prior February 2019 private opinion by Mark B. Shoag, M.D., which relates the Veteran’s post-service lung disorders to his in-service asbestos exposure. Therein, Dr. Shoag stated the following: Since 1954, [the Veteran] has experienced chronic waxing and waning of respiratory disorders. Some medical treatment was for infectious processes while others were for obstructive disease, such as emphysema and bronchitis. Regardless, [the Veteran] does have an extensive pulmonary history since his time in the service and was ultimately diagnosed with lung cancer due to asbestos exposure which caused his death. Since the 1970s, chest x-rays have noted interstitial lung disease. It is undisputed that [the Veteran] was exposed to asbestos coated pipes while in the service and chips of paint that likewise carry asbestos exposure. It is clear that symptoms for his lung condition are an interstitial lung disease caused from asbestos exposure and that oftentimes the development of the post-exposure lung cancer takes decades to present. Consequently, it is much more likely than not that [the Veteran’s] lung disorders are related to his asbestos exposure while in the service. Notably, it does not appear that this private opinion was previously considered by the RO in the context of the appellant’s claim. Given the inadequate February 2021 VA medical opinion and the relevant February 2019 private nexus opinion, the Board finds that remand is warranted to obtain an addendum medical opinion which properly considers the specific issue on appeal in light of the relevant evidence of record, including the February 2019 private nexus opinion. The matters are REMANDED for the following action: Provide the claims file to a qualified VA examiner for an addendum medical opinion concerning the claim of entitlement to service connection for a respiratory disability (other than adenocarcinoma of the lung) prior to May 19, 2011. 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 served on active duty from June 1954 to February 1957. • The death certificate shows the Veteran died in March 2014 due to herpes encephalitis. Other significant conditions contributing to death but not resulting in the underlying cause given were metastatic lung cancer, sepsis, pneumonia, and varicella. See VBMS entry with document type, “Death Certificate,” receipt date 04/24/2014 (items 34 & 35). • At the time of the Veteran’s death, he was service connected for adenocarcinoma of the lung. • The Veteran’s surviving spouse believes that the Veteran had a respiratory disability due to asbestos exposure other than adenocarcinoma of the lung prior to his May 2011 diagnosis. • The Veteran’s DD Form 214 indicates he worked in the Navy as a boiler operator, and the Veteran previously reported working with pipes covered with asbestos. As such, VA has conceded asbestos exposure based upon the Veteran’s military occupational specialty and his recollection of his in-service duties. • Service treatment records show that in September 1954, the Veteran was seen with complaints of chills and fever. Physical examination was negative except for a temperature of 102 degrees. A chest x-ray showed bronchopneumonia in the right lower lung field. See VBMS entry with document type, “STR – Medical,” receipt date 06/12/1957, p. 12. • A February 1957 Report of Medical Examination from service discharge shows that clinical evaluation of the lungs and chest was normal. See VBMS entry with document type, “STR – Medical,” receipt date 06/18/1957, p. 6. • A February 1958 VA examination report shows that physical examination of the respiratory system was negative with no abnormal breath sounds. The examiner documented the shape of chest was normal. A chest x-ray was normal. See VBMS entry with document type, “C&P Exam,” receipt date 02/19/1958, p. 5 (x-ray), 7. • A September 1959 Report of Medical Examination more than two years following service discharge shows that clinical evaluation of the lungs and chest was normal. See VBMS entry with document type, “STR – Medical,” receipt date 06/18/1960, p. 6. • A September 1959 Report of Medical History shows that the Veteran denied a history of asthma, shortness of breath, pain or pressure in chest, and chronic cough. He also denied a history of coughing up blood. See VBMS entry with document type, “STR – Medical,” receipt date 06/18/1960, p. 8 (items 20 & 21). • A June 1973 treatment record shows that the Veteran had a positive PPD test. The Veteran had no known contact and reported he had a negative PPD two years ago. A chest x-ray shows blunting of the costophrenic angles due to adhesions and flattening of the diaphragms and an increase in the AP diameter of the chest. The impression was pulmonary emphysema. See VBMS entry with document type, “Medical Treatment Record – Government Facility,” receipt date 02/07/2012, pp. 5 & 10 (x-ray). • A February 1974 VA treatment record shows the Veteran had complaints of upper respiratory tract infection, which had started about two days prior. The examiner documented rales scattered in both lungs. The working diagnosis was upper respiratory tract infection. See VBMS entry with document type, “Medical Treatment Record – Government Facility,” receipt date 08/12/2004, p. 1. • A May 1976 VA hospitalization summary shows diagnoses of dumping syndrome, hyperpigmentation, hirsutism, and status post vagotomy and pyloroplasty in 1972. In this record, it was documented that the Veteran smoked 1 pack per three days. A review of systems shows that for the respiratory system, the Veteran reported paroxysmal nocturnal dyspnea and three pillow orthopnea with times one per week nocturnal sweats. The examiner wrote that the Veteran had shortness of breath at 5 to 6 blocks and could climb one flight of stairs. The Veteran reported chest pains 10 to 12 times per week and was frequently awakened at night with pain sinking into his chest. Physical examination showed decreased breath sounds in all fields without rales or rhonchi. See VBMS entry with document type, “Medical Treatment Record – Government Facility,” receipt date 06/10/1976, pp. 2 5. • A February 1993 chest x-ray shows that the lungs were clear with no pulmonary disease identified. There was no evidence of pleural effusion. See VBMS entry with document type, “Medical Treatment Record – Government Facility,” receipt date 08/28/2003, p. 35. • A September 1994 chest x-ray showed the lungs were clear. A January 1995 chest x-ray shows old fibrotic changes in both lungs. Findings suggested chronic bronchitis, COPD with possible acute bronchitis superimposed. There was no evidence of pneumonia. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 11/20/1996, with “#2” in the subject field, p. 11 (January 1995) & 13 (September 1994). • A July 1996 private treatment record shows that the Veteran complained of difficulty breathing and shortness of breath at night. The examiner documented that the Veteran was having a COPD exacerbation and wrote “Smoking cessation.” See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 06/30/2003, with “#1” in the subject field, p. 75. • A March 2003 private treatment record documented the Veteran had experienced bronchitis the prior month. Diagnoses of COPD and tobacco abuse were entered. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/07/2003, p. 6. • A January 2009 VA examination report shows the Veteran reported a history of pneumonia while in service and that he was having respiratory symptoms at least two to three times a week during the wintertime. His main complaints were shortness of breath and dyspnea on exertion. Pulmonary function testing was performed at that time. The examiner concluded that the Veteran’s pulmonary function tests were within normal limits and did not show any indication of a respiratory disability consistent with the type caused by asbestos exposure. See VBMS entry with document type, “C&P Exam,” 01/16/2009. • At an April 2010 Board hearing, the Veteran testified that he was a boilermaker on the USS Hamel and that during active service, he was constantly sick with respiratory infections, which had continued since discharge. See VBMS entry with document type, “Hearing Testimony,” receipt date 04/12/2010. • A May 19, 2011 PET/CT study showed hypermetabolic left lower lung mass with hypermetabolic left posterior hilar lymphadenopathy consistent with malignancy. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 11/09/2011, pp. 2 3. • A June 2011 private medical record shows that the Veteran had been referred for surgical evaluation of a left lower lobe mass. The examiner documented the Veteran had a non-productive cough, no hemoptysis. The Veteran denied chest pain or shortness of breath. The Veteran reported he had been exposed to asbestos while in the Navy. He also reported he had smoked for 60 years and that during the past three years, he had reduced his smoking from 1 pack per day to 7-8 cigarettes daily. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 10/31/2011, p. 3. • A July 2011 private medical record shows the Veteran was diagnosed with stage 2 adenocarcinoma of the left lower lobe. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 10/31/2011, p. 12. • A July 2011 VA examination report documented relevant diagnoses of chronic obstructive pulmonary disease (COPD) and adenocarcinoma of the lung. The VA examiner opined that COPD was due to many years of smoking. Additionally, she noted that prior to the diagnosis of lung cancer, the Veteran had no findings consistent with asbestos-related lung disease, which findings she laid out in the examination report. The examiner noted the Veteran’s recent diagnosis of adenocarcinoma of the lung and that studies investigating a causal relationship between asbestosis and bronchogenic carcinoma have “demonstrated a clear association between these two entities.” She added that it had been found that asbestos exposure is associated with a relative risk of lung cancer of 3.5, which risk is markedly increased if there is a history of co-existing exposure to tobacco smoke. The examiner addressed other factors and concluded that the increased risk of bronchogenic carcinoma in persons exposed to asbestos made it as likely as not that the Veteran’s lung disease of bronchogenic carcinoma was related to asbestos exposure in service. The examiner’s opinion and discussion laid out in the examination report is very detailed as to how she reached this conclusion. See VBMS entry with document type, “C&P Exam,” receipt date 07/13/2011. • In 2011, the Veteran was awarded service connection for adenocarcinoma of the lung as of May 19, 2011 based on the date such diagnosis was made. • To reiterate, the Veteran’s surviving spouse believes that the Veteran had a respiratory disability due to asbestos exposure other than adenocarcinoma of the lung prior to the date adenocarcinoma was found in May 2011. • A February 2019 private opinion by Mark B. Shoag, M.D., relates the Veteran’s “post-service lung disorders” to his in-service asbestos exposure. Therein, Dr. Shoag stated that “[s]ince 1954, [the Veteran] has experienced chronic waxing and waning of respiratory disorders. Some medical treatment was for infectious processes while others were for obstructive disease, such as emphysema and bronchitis. Regardless, [the Veteran] does have an extensive pulmonary history since his time in the service and was ultimately diagnosed with lung cancer due to asbestos exposure which caused his death. Since the 1970s, chest x-rays have noted interstitial lung disease. It is undisputed that [the Veteran] was exposed to asbestos coated pipes while in the service and chips of paint that likewise carry asbestos exposure. It is clear that symptoms for his lung condition are an interstitial lung disease caused from asbestos exposure and that oftentimes the development of the post-exposure lung cancer takes decades to present. Consequently, it is much more likely than not that [the Veteran’s] lung disorders are related to his asbestos exposure while in the service.” See VBMS entry with document type, “Correspondence,” receipt date 02/05/2019, at page 7. • A February 2021 medical opinion by a VA examiner incorrectly focused on whether the Veteran’s adenocarcinoma of the lung was related to his active duty, including asbestos exposure, rather than the relevant issue of entitlement to service connection for a respiratory disability other than adenocarcinoma of the lung prior to May 19, 2011. See VBMS entry with document type, “C&P Exam,” receipt date 02/27/2021. • 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. Following a review of the evidence of record, including as listed above, the VA examiner is requested to answer the following questions: 1. Is it at least as likely as not (a 50 percent probability or greater) that prior to May 19, 2011, the Veteran had a respiratory disability other than adenocarcinoma of the lung that is related to his presumed exposure to asbestos while on active duty from June 1954 to February 1957. Please state upon what facts and medical principles/medical literature you base the opinion. 2. Are any of the lung disabilities other than adenocarcinoma of the lung related to cigarette smoking? 3. The examiner is also asked to comment on the February 2019 private nexus opinion and whether the conclusions Dr. Shoag reached are supported by the evidence. 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.