Citation Nr: 21028063 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-32 925 DATE: May 10, 2021 REMANDED Entitlement to service connection for asthma, including as secondary to service-connected asbestosis pleural plaques, COPD, hypoxemia, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected asbestosis pleural plaques, COPD, hypoxemia, is remanded. Entitlement to service connection for an acquired psychiatric disorder, including as secondary to service-connected asbestosis pleural plaques, COPD, hypoxemia, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1954 to June 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2018 and November 2019, the Board remanded this matter for further development. The case has been returned to the Board at this time for further appellate review. Claims for service connection for psychiatric disabilities may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the psychiatric disorder issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for asthma, including as secondary to service-connected asbestosis pleural plaques, COPD, hypoxemia, is remanded. 2. Entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to service-connected asbestosis pleural plaques, COPD, hypoxemia, is remanded. 3. Entitlement to service connection for an acquired psychiatric disorder, including as secondary to service-connected asbestosis pleural plaques, COPD, hypoxemia, is remanded. Pursuant to the November 2019 Board remand, VA examinations addressing whether the Veteran's asthma, OSA, and/or acquired psychiatric conditions were proximately due to or aggravated beyond their natural progression by the Veteran's service-connected asbestosis pleural plaques were obtained in January 2020. Subsequently, the Veteran's service-connected disability was changed from asbestosis pleural plaques to asbestosis pleural plaques, COPD, hypoxemia. Because this recharacterization of the Veteran's service-connected disability may have an impact on the secondary service connection analysis, remand for new VA examinations is warranted. In addition, the Board finds that the January 2020 VA examinations regarding the Veteran's asthma, OSA, and acquired psychiatric conditions are inadequate for the following reasons. First, none of the January 2020 VA examinations contain a sufficient rationale addressing aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of "not due to," "not caused by" and "not related to" are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b)). Second, the January 2020 VA respiratory examination does not address the medical evidence of record suggesting that the Veteran's asthma is related to his in-service asbestos exposure. Third, the January 2020 mental disorders examination (1) only addresses the Veteran's generalized anxiety disorder and does not address any other acquired psychiatric disorder the Veteran has been diagnosed with during the time period on appeal, including depression and adjustment disorder, and (2) did not address the conflicting January 2017 private opinion suggesting that the Veteran's acquired psychiatric disorders are related to his asbestosis pleural plaques. For these reasons, remand for new VA examinations is appropriate. The matters are REMANDED for the following action: 1. Obtain an opinion with a qualified clinician who has not previously opined about the Veteran's claim to determine the nature and etiology of the Veteran's asthma. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's asthma began in or is otherwise caused by the Veteran's active service. In doing so, the examiner should address the Veteran's private treatment records suggesting that the Veteran's asthma is related to his in-service asbestos exposure. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's asthma is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected asbestosis pleural plaques, COPD, hypoxemia. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner is advised that the Veteran is competent to report his symptoms capable of lay observation, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. 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. Obtain an opinion with a qualified clinician who has not previously opined about the Veteran's claim to determine the nature and etiology of the Veteran's obstructive sleep apnea. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea began in or is otherwise caused by the Veteran's active service, including his exposure to asbestos. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's obstructive sleep apnea is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected asbestosis pleural plaques, COPD, hypoxemia. In doing so, the examiner should address the April 2016 private treatment record noting that the Veteran has OSA exacerbated to the severe degree when in supine position and associated with moderate oxygen desaturations. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner is advised that the Veteran is competent to report his symptoms capable of lay observation, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. 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. Obtain an opinion from a qualified clinician who has not previously opined regarding the Veteran's claim to determine whether any acquired psychiatric disorder found during the period on appeal is related to the Veteran's military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should identify all acquired psychiatric disorders found during the period on appeal. In doing so, the examiner should address the diagnoses of anxiety disorder, depression, and adjustment disorder found in the Veteran's medical records. If the examiner finds that any disorder noted in the record is not an accurate diagnosis for the Veteran at any point during the appeal, the examiner should explain in detail why this is so. For each acquired psychiatric disorder identified during the period on appeal, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran's active service. In addition the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder found during the appeal period was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected asbestosis pleural plaques, COPD, hypoxemia. In doing so, the examiner should address the January 2017 private opinion suggesting that the Veteran's acquired psychiatric disorders are more likely than not caused by, secondary to, or related to his service-connected asbestosis pleural plaques. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. 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 M. Elias, 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.