Citation Nr: 21025527 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-09 251 DATE: April 28, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include asthma and chronic obstructive pulmonary disorder (COPD), is granted. Entitlement to service connection for a disorder of the nose and throat, to include maxillary sinusitis, allergic rhinitis, and hypertrophy of the right inferior turbinate, is granted. FINDINGS OF FACT 1. The Veteran’s respiratory disorders, to include asthma and COPD, are related to his active duty service. 2. The Veteran’s disorders of the nose and throat, to include maxillary sinusitis, allergic rhinitis, and hypertrophy of the right inferior turbinate, are related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder, to include asthma and COPD, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for disorders of the nose and throat, to include maxillary sinusitis, allergic rhinitis, and hypertrophy of the right inferior turbinate, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1964 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and September 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, May 2020, and September 2020, the Board remanded these matters for further development. These matters have been advanced on the docket pursuant to 38 C.F.R. § 20.902. The Board has recharacterized the Veteran’s claims, as reflected on the title page, to include consideration of all the related disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Service Connection 1. Entitlement to service connection for a respiratory disorder, to include asthma COPD, is granted. 2. Entitlement to service connection for a disorder of the nose and throat, to include maxillary sinusitis, allergic rhinitis, and hypertrophy of the right inferior turbinate, is granted. The Veteran asserts that his respiratory and ear, nose, and throat (ENT) disorders are due to his active duty service, to include as due to exposure to asbestos, heavy second-hand smoke, significant levels of dust, solvents, fumes, and other environmental hazards generated during a dry-dock overhaul of the ship to which he was assigned for sea duty. See December 2011 Veteran lay statement, June 2014 Veteran lay statement, August 2015 VA Form 21-4138, March 2016 Veteran lay statement, June 2016 Appellate Brief, November 2016 VA Form 21-4138. The Board agrees. Service connection may be granted for a disability resulting from disease or injury incurred in active duty service or for aggravation of a pre-existing injury by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regarding the Veteran’s claim for a respiratory disorder, he is currently diagnosed with asthma and COPD. See March 2020 VA examination report. Regarding his ENT claim, the Veteran has current diagnoses of allergic rhinitis, maxillary sinusitis, and hypertrophy of the right inferior turbinate. See February 2016 and March 2020 VA examination reports. To the extent the Veteran has also been diagnosed with an atraumatic deviated septum, that is not considered a disability under VA regulations. Id. See also 38 C.F.R. § 4.97, Diagnostic Code 6502. Thus, element one of service connection is met. Regarding element two, the Board notes that the Veteran’s military occupation specialty was that of a Yeoman. The VA recognizes that Naval personnel serving as Yeoman were likely exposed to asbestos. The Veteran also reports that he was exposed to significant asbestos particles during the dry-dock overhaul of the ship he was assigned to for sea-duty. See May 2014 Veteran lay statement. Accordingly, the Board finds the Veteran was exposed to asbestos during his active duty service. The Veteran also reports that during the period of his active duty service, from 1964 to 1968, he was exposed to significant second-hand smoke inside the skin of the ship. See December 2011 Informal Claim, October 2013 VA Form 21-4138. Additionally, during dry-dock, the Veteran reports that he was not provided with alternative off-ship housing and had to live on the ship during over-haul and was exposed to the significant levels of dust, fumes, smoke, particulate, and solvents that accompany ship over-hauls in the late 1960s. See October 2013 and November 2016 VA Forms 21-4138. The Veteran is competent to report that which comes to him through his senses, such as being exposed to smoke, fumes, and particulate matter; and the Board finds him credible in this regard. 38 U.S.C. § 1154(a). Accordingly, element two of service connection is met. Thus, the crux of this matter is whether there exists a nexus between the Veteran’s in-service exposures and his current respiratory and ENT disorders. There is evidence both for and against the claims. Against the claims for service connection are the opinions of VA examiners rendered in July 2013, February 2016, August 2019, June 2020, December 2020, and January 2021. In July 2013, the Veteran submitted to a VA examination and was diagnosed with asthma. The July 2013 VA examiner opined that it was less likely than not that the Veteran’s asthma was caused by the Veteran’s exposure to second-hand smoke because while asthma may have been caused by second-hand smoke, it may also have been caused by environmental exposures post-service, to include in the Veteran’s employment as a fork-lift operator and truck driver. The Board notes that while the July 2013 examiner opined that exposures as a fork-lift operator or truck driver “could have also” contributed to the Veteran’s development of asthma, he provided no medical rationale for this conclusion, failed to identify what the additional exposures may have been, and additionally utilized overly speculative language. Hood v. Shinseki, 23 Vet. App. 295, 298 99 (2009) (medical opinion is speculative when it uses equivocal language such as could or might, without any other rationale or supporting data); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once the VA undertakes the effort to provide an examination, it must provide an adequate one). Accordingly, the July 2013 VA examiner’s opinion is of no probative value. In February 2016, a VA examiner diagnosed allergic rhinitis, maxillary sinusitis, and hypertrophy of the right inferior turbinate and opined that it was less likely than not that the Veteran’s ENT disorders were due to airborne exposures aboard the dry-docked ship. The February 2016 examiner reasoned that as the Veteran reported his symptoms began in 1987, that it was “inconceivable that symptoms of rhinitis and sinusitis could manifest 20 years after in-service airborne exposures.” The February 2016 VA examiner also opined that it was less likely than not that the Veteran’s asthma was caused by his in-service exposures as there is no credible evidence that remote asbestos, fume, and dust exposure are causes of asthma. However, the Board notes that the Veteran reported in his October 2013 Notice of Disagreement (NOD) that he was receiving treatment for respiratory and sinus problems since his discharge from active duty and this relevant lay assertion was not addressed by the February 2016 VA examiner. Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020). Critically, Dr. C.R., referenced by the February 2016 VA examiner as treating and diagnosing the Veteran with sinusitis and rhinitis, offered a contrary opinion in December 2013 demonstrating that it is indeed conceivable that the Veteran’s exposures in-service resulted in the subsequent development of respiratory and ENT disorders. Thus, it is clear that all procurable and assembled data was not fully considered by the February 2016 VA examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the February 2016 VA examiner’s opinion is of no probative value. In August 2019, a VA examiner confirmed the diagnoses of asthma and maxillary sinusitis. The August 2019 VA examiner opined that as asthma was first diagnosed in 2000 and because sinus disorders were not diagnosed until the late 1990s, it was less likely than not due to the Veteran’s in-service exposures. The Board notes that the Veteran’s in-service treatment for ear infections was not considered, there is evidence of treatment from private providers much earlier in time than cited by the VA examiner, the Veteran’s lay statements regarding continuity of symptoms from service to the present that were not addressed, and private medical opinions that were not considered by the August 2019 VA examiner. See Service Treatment Records (STRs), October 1987 private treatment records, October 2013 NOD, December 2011 letter from Dr. M.A., December 2013 private nexus statement from Dr. C.R., January 2015 private nexus statement from Dr. M.A., July 2015 nexus statement from Dr. C.R. Accordingly, the August 2019 VA examiner’s opinion is of no probative value. See Nieves-Rodriguez, supra. In June 2020, a VA examiner concluded it would require mere speculation to opine that the Veteran’s in-service exposures did or did not result in his current respiratory and ENT disorders and further concluded that a discussion of the evidence cited by the March 2020 VA examiner would be outside the scope of any remand or addendum opinion. An examiner may not invoke the phrase “without resort to mere speculation” as a substitute for the full consideration of all pertinent and available medical facts. Jones v. Shinseki, 23 Vet. App. 382 (2010). Accordingly, the June 2020 VA examiner’s opinion is of no probative value. Finally, the December 2020/January 2021 VA examiner opined that it was less likely than not that the Veteran’s current respiratory and ENT disorders are related to the Veteran’s in-service exposures due to the passage of time between service and the Veteran’s current diagnoses. As noted above, an adequate medical examination must consider the relevant lay and medical evidence and must be well-reasoned. See Miller supra. See also Nieves-Rodriguez, supra. Thus, the December 2020 and January 2021 VA medical opinions are of no probative value. In favor of the claim are multiple private medical statements and a VA practitioner’s nexus statement. In December 2011, Dr. M.A. wrote that there was a “definite possibility” or a “concern with good probability” that the Veteran’s asthma was related to his active duty service environmental exposures. See December 2011 letter from Dr. M.A. As Dr. M.A. used speculative language, the opinion is of no probative value. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a causal relationship); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor’s statement framed in terms such as “could have been” is not probative). In December 2013, Dr. C.R. wrote that the Veteran’s chronic sinusitis and difficulties with his sinuses generally had been worsening progressively with no obvious underlying etiology and it was his opinion, based on treating the Veteran for over a decade and with a reasonable degree of medical certainty, that the Veteran’s current ENT disorders were related to the Veteran’s environmental exposures in service. Dr. C.R. based his opinion on a review of the Veteran’s service treatment records involving ear infections and the Veteran’s lay statements about in-service exposures. The Board finds Dr. C.R.’s opinion to be based on a review of the Veteran’s medical history and the relevant lay statements of record and thus, of great probative weight. In January 2015, Dr. M.A. opined that, based upon a complete review of the Veteran’s medical history and lay statements, that it was more likely than not that the Veteran’s asthma had its onset during the Veteran’s active duty and persisted to the present. The Board finds Dr. M.A.’s medical opinion to be similarly well-reasoned as he properly considered all of the medical and lay evidence of records and is accordingly of great probative weight. In a July 2015 letter, Dr. M.L. wrote that the Veteran’s rhinitis and sinusitis “could be” related to the Veteran’s in-service exposures, though there was no definitive evidence available. As Dr. M.L.’s July 2015 opinion used the speculative language of “could be” it is of no probative value. See Bostain, supra. In March 2020, a VA examiner diagnosed the Veteran with COPD and asthma. The March 2020 VA examiner reviewed the Veteran’s entire claims file, including the Veteran’s lay statements of record, and opined that it was at least as likely as not that the Veteran’s respiratory disorders, including COPD and asthma, had their onset during the Veteran’s active duty service or were otherwise related to his in-service environmental exposures. In support of this opinion, the March 2020 VA examiner considered the Veteran’s reports of in-service exposures, his reports of the onset of symptoms during service, and referenced recent medical publications that determined there was a statistically significant correlation between active duty service combined with environmental hazards, such as those experienced by the Veteran, and the subsequent development of asthma and COPD. The Board finds the March 2020 VA examiner’s opinion to be based on a complete review of the Veteran’s medical history, a consideration of the Veteran’s competent lay statements, and based on recent medical studies. The March 2020 VA examiner’s opinion is, accordingly, of great probative weight. As all of the competent and probative evidence of record is in favor of the claim, the Board finds that element three of service connection, or nexus, is met as to both the Veteran’s respiratory disorder and his ENT disorder claims. Accordingly, and for the reasons set forth above, entitlement to service connection for respiratory disorders, to include asthma and COPD, and ENT disorders, to include allergic rhinitis, maxillary sinusitis, and hypertrophy of the right inferior turbinate, is warranted and the relief sought on appeal is granted in full. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate 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.