Citation Nr: 21024915 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-09 371 DATE: April 26, 2021 ORDER Entitlement to service connection for throat polyps is denied. REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure, is remanded. Entitlement to service connection for a heart condition is remanded. Entitlement to service connection for bladder cancer is remanded. FINDING OF FACT The Veteran did not have a current disability related to throat polyps during the pendency of this claim. CONCLUSION OF LAW The criteria for establishing service connection for throat polyps have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from July 1956 to March 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2019; however, the transcript for this hearing was unavailable due to technical difficulties and the Appellant, acting at the time as fiduciary, declined a new hearing. The Veteran died in December 2020, and his surviving spouse has been substituted as the Appellant in this case. The Appellant in this case has indicated she only requested to be substituted for the appeal of the denial of service connection for COPD. Because the Appellant has not expressly withdrawn the remaining issues on appeal, they are addressed in this decision. If the Appellant wishes to withdraw the remaining appeal issues other than service connection for COPD, she is advised that she must submit a written statement to VA expressly stating she wishes to withdraw the remaining issues from the appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While service connection may be granted for a disability that resolves prior to the adjudication of the claim, a current disability must be established during the pendency of the claim or recently prior to filing the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Entitlement to service connection for throat polyps In September 2019, the Veteran submitted a disability benefits questionnaire pertaining to conditions of the nose, throat, larynx, and pharynx. The Board notes the physician reported not having reviewed any records in the preparation of the disability benefits questionnaire. The Veteran’s private physician identified neoplasms of the pharynx, and noted the date of diagnosis was unknown. The physician reported the Veteran had undergone excision of a benign lesion at an unknown date, and noted no current residual conditions or complications due to the neoplasm or its excision. The physician opined that the throat polyps were as likely as not related to the Veteran’s exposure to lead and other chemicals during his time stripping and painting ships in service. The Board notes the Veteran submitted his claim for service connection for throat polyps in May 2016. The private records the Veteran submitted do not contain any mention of treatment for throat polyps or complaints related to the Veteran’s throat. The Veteran’s VA treatment records note a remote history of surgery to remove throat polyps in 1990. In July 2009, the Veteran reported a progressive difficulty in swallowing, particularly solid foods, for which he was seeking treatment from a private physician, but a February 2010 VA treatment note indicated this symptom had resolved. He complained of a difficulty swallowing food again in February 2011, and although dysphagia remained on his VA problem list until December 2016, the Veteran did not again complain of this symptom or any other throat symptoms at any point after February 2011. After review of the evidence of record, the Board finds that service connection is not warranted for throat polyps, as there was no current disability during the appeal period. Although the private physician gave a positive etiology opinion, the physician did not review any records regarding the throat polyps or their excision, and was unaware of when this procedure took place. Further, the VA and private treatment records contemporary to the pendency of this claim do not contain complaints of or treatment for throat polyps. The dysphagia noted on the Veteran’s VA problem list until December 2016 did not coincide with any discussion with his health care providers regarding a difficulty swallowing since February 2011, and even at that point in time, the records do not indicate a connection between the difficulty swallowing solid foods and the throat polyps the Veteran was treated for in 1990. Therefore, the Board finds that there is no current disability related to throat polyps, and service connection is denied. REASONS FOR REMAND 1. Entitlement to service connection for COPD, to include as due to asbestos exposure, is remanded. First, the Board notes the Veteran’s service personnel records indicate he commenced a 24-month shore tour in June 1959, assigned to a small auxiliary floating dry dock (“USS AFDL-48”) in Long Beach, California. Although the personnel records do not reflect what duties the Veteran was assigned during service, and although the Veteran’s in-service ratings were associated with minimal asbestos exposure, he reported being assigned to a shipyard for an extended period of time, where he was exposed to asbestos as well as paint, smoke, fumes, and fuel. Resolving any reasonable doubt in favor of the Veteran, the Board concedes asbestos exposure during service, as well as exposure to paint, smoke, fumes, and fuel. In February 2017, the Veteran attended a VA respiratory conditions examination. The examiner opined the Veteran’s COPD was less likely as not related to his service, as COPD is not caused by asbestos exposure, and because the instance of bronchopneumonia documented in the Veteran’s service treatment records resolved with treatment and there were no further sequelae noted during service. The VA examiner attributed the COPD to the Veteran’s history of smoking tobacco. In September 2019, the Veteran submitted a disability benefits questionnaire completed by his private physician. The physician opined that the Veteran’s COPD was as likely as not related to his service, as the spraying of asbestos contributed to its development. The private physician did not address the Veteran’s history of smoking tobacco as a risk factor and did not provide a rationale explaining how asbestos exposure is related to COPD. As these two medical opinions are in direct conflict regarding whether asbestos exposure can lead to COPD, a remand is necessary to obtain a new opinion reconciling the conflicting evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA is not permitted to base decisions on its own unsubstantiated medical conclusions); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). 2. Entitlement to service connection for bladder cancer is remanded. The medical opinions in the record regarding the etiology of the Veteran’s bladder cancer provide an inadequate basis for deciding this claim, and a remand is necessary to obtain an adequate opinion fully addressing the Veteran’s particular circumstances. A May 2016 opinion letter from the Veteran’s private physician states that it is “plausible” the bladder cancer could be related to working around asbestos during service. This opinion provides no further rationale, and is insufficient for determining this claim. In February 2017, the Veteran was afforded a VA genitourinary examination. The examiner opined the bladder cancer was less likely as not related to service, because asbestos is not a common risk factor for bladder cancer, whereas tobacco use is the most common risk factor associated with this type of cancer. The examiner noted that any possible contribution of asbestos exposure to the development of the bladder cancer is possible at most, and it is less likely as not that asbestos would be the main causative factor. However, the examiner did not provide any rationale for this conclusion beyond noting that tobacco is the most common risk factor. In September 2019, the Veteran submitted a disability benefits questionnaire completed by his private physician. The physician opined the paint, asbestos, and other chemicals the Veteran was exposed to during service are known risk factors for bladder cancer, particularly the solvents used in the stripping process. However, the physician reported having reviewed no records in the preparation of the questionnaire, and did not address the Veteran’s history of tobacco usage. Therefore, these opinions are inadequate, and a remand is necessary to obtain an opinion addressing the development of bladder cancer in the context of the Veteran’s exposures and medical history. See Barr, 21 Vet. App. at 311. 3. Entitlement to service connection for a heart condition is remanded. The only opinion in the record regarding a nexus between the Veteran’s heart conditions and his service is a September 2019 disability benefits questionnaire completed by the Veteran’s private physician. While the physician opined that lead-based paint has been shown to contribute to heart disease, the physician did not discuss which, if any, of the identified heart conditions, including myocardial infarction, coronary artery disease, stable angina, and hypertensive heart disease, were caused by the Veteran’s exposure to paint in service. As there is an indication the Veteran’s heart conditions may be related to service, a remand is necessary to obtain an opinion regarding their etiology. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician to determine whether the diagnosis of COPD was related to the Veteran’s military service. Following review of the claims file, the examiner should opine whether it was at least as likely as not (50 percent or greater probability) that the disability began in or was otherwise caused by the Veteran’s active service, to include conceded exposure to asbestos, paint, fuel, fumes, and smoke. The examiner is also asked to address the February 2017 and September 2019 medical opinions, and attempt to reconcile the conflicting information regarding whether asbestos exposure can lead to COPD. In providing the requested opinions, the examiner should specifically address the Veteran’s lay statements in the record regarding working in a shipyard, as well as the service treatment record showing treatment for bronchopneumonia, which notes a patchy infiltration in the right mid and left basilar lung fields on the chest x-ray. The examiner should be informed that VA’s guidelines indicate the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, and an asbestos-related disease can develop from brief exposure to asbestos. If the examiner finds that the Veteran’s COPD was related to his history of smoking and not to his exposure to asbestos, paint, smoke, and fuel fumes in service, the examiner must provide a cogent rationale, based on the Veteran’s particular circumstances, for why the COPD would be more likely due to smoking than the in-service exposures. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Forward the claims file to an appropriate clinician to determine whether the diagnosis of bladder cancer was related to the Veteran’s military service. Following review of the claims file, the examiner should opine whether it was at least as likely as not (50 percent or greater probability) that the disability began in or was otherwise caused by the Veteran’s active service, to include conceded exposure to asbestos, paint, fuel, fumes, and smoke. The examiner should specifically address the Veteran’s lay statements in the record regarding working in a shipyard and the various exposures he experienced. The examiner should be informed that VA’s guidelines indicate the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of the disease, and that genitourinary cancers (except prostate) are associated with asbestos exposure. If the examiner finds that the Veteran’s bladder cancer is more likely related to post-service risk factors, such as a history of smoking, the examiner must provide a cogent rationale, based on the Veteran’s particular circumstances, for why the Veteran’s bladder cancer would have been more likely related to the post-service factors than the in-service exposures. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Forward the claims file to an appropriate clinician to determine whether any identified heart condition, to include myocardial infarction, coronary artery disease, stable angina, and hypertensive heart disease, was related to the Veteran’s military service. Following review of the claims file, the examiner should opine whether it was at least as likely as not (50 percent or greater probability) that the disability began in or was otherwise caused by the Veteran’s active service, to include conceded exposure to asbestos, paint, fuel, fumes, and smoke. The examiner should specifically address the Veteran’s lay statements in the record regarding working in a shipyard and the various exposures he experienced. The examiner must also address the September 2019 DBQ from the Veteran’s private physician that suggested that exposure to lead-based paint can contribute to heart disease. The examiner should address any other pertinent evidence of record as well. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.