Citation Nr: 21028078 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-47 897 DATE: May 10, 2021 ORDER The appeal of service connection for bilateral hearing loss is dismissed. The appeal of service connection for tinnitus is dismissed. Entitlement to service connection for a respiratory disorder, manifested by pleural plaquing and asthma due to asbestos exposure, is granted. REMANDED Entitlement to service connection for sleep apnea with limb movements to include as due to herbicide exposure and asbestos exposure is remanded. FINDINGS OF FACT 1. Service connection for bilateral hearing loss was granted in a January 2021 Rating Decision and there is no longer a case or controversy as to that issue. 2. Service connection for tinnitus was granted in a January 2021 Rating Decision and there is no longer a case or controversy as to that issue. 3. The Veteran's respiratory disorder, manifested by pleural plaquing and asthma, is related to asbestos exposure during service. CONCLUSIONS OF LAW 1. The Board lacks jurisdiction over the issue of service connection for bilateral hearing loss because that issue has been rendered moot on appeal. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The Board lacks jurisdiction over the issue of service connection for tinnitus because that issue has been rendered moot on appeal. 38 U.S.C. § 7105; 38 C.F.R.) § 19.55. 3. The criteria for entitlement to service connection for a respiratory disorder, manifested by pleural plaquing and asthma due to asbestos exposure, 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 had active service from May 1969 to February 1973. He is a Veteran of the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). The Veteran filed a VA Form 20-0996 Decision Review Request: Higher Level Review on March 1, 2021. However, this opt-in to the Appeals Modernization Act (AMA) is invalid, as his appeal had already been certified to the Board and placed on its docket. Thus, it will continue in the Legacy system. The Veteran and his wife testified before the undersigned Veterans Law Judge in March 2021. During the hearing, the Veteran indicated that his asbestosis claim had been withdrawn and he did not want it to be withdrawn. Therefore, the VLJ took jurisdiction of the claim and heard testimony pertaining to it. Due to the favorable finding in a March 2020 rating decision that the Veteran has a diagnosis of asthma, the Board therefore recharacterize the Veteran's claim as noted: Entitlement to service connection for a respiratory disorder manifested by pleural plaquing due to asbestos exposure and asthma. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus A January 2021 Rating Decision granted entitlement to service connection for bilateral hearing loss with a 10 percent evaluation effective November 5, 2020, and for tinnitus with a 10 percent evaluation effective November 5, 2020. As the benefit sought on appeal has been granted, the appeal must be dismissed for lack of jurisdiction and because there remains no case or controversy as to the issue of service connection for hearing loss and tinnitus. Consequently, the claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Any subsequent disagreement with the "downstream" elements flowing from this allowance (i.e., initial evaluations and effective dates) must be separately filed, pursued, and docketed. 3. Entitlement to service connection for a respiratory disorder manifested by pleural plaquing due to asbestos exposure and asthma The Veteran's claim for service connection for asbestosis was denied in a June 2015 rating decision. On November 20, 2019, the Veteran submitted a VA Form 20-0995 Supplemental Claim seeking to reopen his claim due to the newly enacted Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. A special review of the Veteran's file was mandated in November 2019. A March 2020 rating decision denied service connection for asbestosis finding the evidence submitted was not new and relevant. The RO identified the favorable findings set forth below: 1. The Veteran has a diagnosis of asthma. 2. Exposure to herbicides was conceded based on service on the Republic of Vietnam's inland waterways. 3. Exposure to herbicides was conceded based on service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. The RO did not address herbicide exposure in relation to the Veteran's claim. Certain specified diseases are presumed to be associated with herbicide exposure. Notwithstanding that presumption, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The availability of presumptive service connection for some conditions based on exposure to herbicide does not preclude direct service connection for other conditions based on such exposure. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Veteran has a diagnosis of asthma thus meeting the first element required to establish service connection. The Veteran claims that his respiratory disorder is related to service, including herbicide exposure and exposure to asbestos. Service treatment records note multiple complaints of a sore throat in 1972 and 1973. A March 2009 chest X-ray indicates "reticulonodular interstitial thickening in the lungs," which has a chronic appearance. Interstitial density is somewhat greater in the left chest and there is mild bilateral pleural thickening laterally, but not the lung bases. The report indicated that this is probably a chronic appearance, but CT scan would be recommended for further evaluation. A July 2014 primary care note indicating that the Veteran complained of a chronic cough for several years, that worsened in the last 6 months. The Veteran stated that it feels like a "tickle in the throat," with small amounts of expectoration. March 2015 chest X-ray results indicated a 5 mm nodular opacity and a CT scan was recommended. The CT scan noted nodular and "partially calcified bilateral pleural plaques most compatible with prior asbestos exposure." The main pulmonary artery was noted as ectatic, "a finding which may be associated with pulmonary arterial hypertension." May 2015 pulmonary function testing (PFT) indicated that spirometry and lung volumes are consistent with a mild obstructive ventilatory defect. There is significant improvement in the spirometry after inhaled bronchodilator. The diffusing capacity is mildly reduced. The results indicated that the Veteran has multiple respiratory conditions with asthma predominantly responsible for the limitation in pulmonary function. A May 2015 pulmonary consult note indicated that the Veteran presented for consultation due to pleural plaques reported on chest CT scan. The Veteran reported "wheezing and shortness of breath" while walking, sometimes just in his house. During service he was a boilerman and worked with asbestos. The physician noted abnormal pulmonary function testing (PTF) "questionably secondary to underlying low grade asthma." The Veteran was afforded a VA examination for respiratory conditions in June 2015. The examiner noted the March 2015 chest X-ray and CT scan results and PFT results. The examiner indicated a May 2015 diagnosis of asthma and a March 2015 diagnosis of bilateral pleural plaques consistent with prior asbestos exposure. The examiner noted the intermittent use of inhalational bronchodilator therapy and inhalational anti-inflammatory medication. The Veteran reported that he has "asbestos on his lungs" and that he has a cough and experiences dyspnea. He stated that he uses an inhaler, which helps. The examiner noted that the Veteran's MOS of Boiler Technician is highly probable for asbestos exposure. The examiner opined that the Veteran's asbestosis was less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner stated that the Veteran's medical records document that he was being treated for asthma. Although his CT scan of the chest indicated pleural plaquing ("likely secondary to asbestos exposure"), based on the Veteran's history, review of available medical records and current examination findings, the examiner found there was no objective clinical evidence of active disease. The June 2015 rating decision denied service connection based on the findings of the examiner, which the RO interpreted as a finding that the medical evidence failed to show that asbestosis had been clinically diagnosed. During the March 2021 hearing, the Veteran testified that the ship he served on was all wrapped with asbestos, "I mean everything." The ship was built in the 1940s. He stated that the ship was so old that asbestos and everything would just flake off around them all the time. He stated that "They cut the pole out and everything else to get into it. "And what it would do, it was just like snowflakes coming down all the time on you." He stated that the ship was decommissioned in 1975. The Veteran stated that he was diagnosed with asbestosis and is being treated by the VA for it. He has two inhalers that he uses multiple times during the day and prescription medication. He stated that he takes 17 pills per day. He stated that he believes he has had it since service. He did not have symptoms prior to service. His voice is raspy and he stated that he "spit up a lot of fluids from it as well." He stated his voice was raspy during service. He stated each year it gets worse. He believes that his service treatment records mention asbestos. His wife stated that it was after service that they diagnosed it, and it has worsened. She stated he has a chronic cough now, where he constantly coughs through the day. The Veteran indicated that he sold cars for 37 years after service. He testified that he is no longer able to work due to asbestosis and sleep apnea. His wife stated that he was unable to continue working because he could not do the walking and "it was too much for his breathing." The Board finds that the Veteran has a current disability of a respiratory disorder manifested by pleural plaques due to asbestos exposure, and asthma. The Board also finds that asbestos exposure has been established based on the Veteran's service records, medical records and testing diagnosing pleural plaques which indicate asbestos exposure, and the Veteran's lay statements and testimony. Thus, the first two elements required to establish service connection have been met. As to the final element required to establish service connection, a nexus between the Veteran's disability and service, the Board finds that the June 2015 examiner's opinion and rationale are inadequate as the examiner did not adequately address evidence that is favorable to the Veteran and his opinion is based on an inaccurate factual premise. In addition, the opinion is internally inconsistent. The examiner did not adequately address the March 2015 imaging tests and diagnosis of pleural plaques which indicate asbestos exposure, the diagnosis of asthma, or the findings of the Pulmonary Function Tests (PFTs). The examiner apparently ruled out active asbestosis disease with little explanation, but did not address the Veteran's current respiratory disorder, as evidenced by the medical evidence of pleural plaques, the asthma diagnosis, the Veteran's lay statements and testimony, and his use of inhalers to treat symptoms. The examiner also did not adequately address the high probability of exposure to asbestos due to the circumstances of the Veteran's service and his MOS. Nor did the examiner specifically address any relationship between the Veteran's asbestos exposure and his asthma. However, the examiner diagnosed both pleural plaques due to asbestos exposure and asthma without differentiating whether the asthma was associated with the pleural plaques and without such differentiation, the Board finds that it must give the Veteran the benefit of the doubt and find that it is associated with the pleural plaques. Mittleider v. West, 11 Vet. App. 181 (1998). In addition, the examiner did not adequately address symptoms reported by the Veteran including coughing, raspy voice, dyspnea or his lay statements. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For these reasons, the Board finds that the June 2015 examiner's opinion is entitled to low probative value and is outweighed by the other evidence of record. Considering the diagnosis of pleural plaques and asthma, the circumstances of his service including an MOS having a high probability of asbestos exposure, the Veteran's lay statements and testimony, the Board finds that the evidence of record is at least in relative equipoise that exposure to asbestos in service caused the Veteran's respiratory disorder, manifested by pleural plaquing and asthma. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's respiratory disorder, manifested by pleural plaquing and asthma, is related to his service. Service connection is therefore warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea with limb movements to include as due to herbicide exposure and asbestos exposure is remanded The Veteran was diagnosed with sleep apnea pursuant to an April 2015 sleep study and he was prescribed a CPAP machine. Therefore, the first element required to establish service connection, a current diagnosis, is established. The Veteran has asserted that his sleep apnea symptoms began during service. There are no notations of a sleep disorder in the Veteran's service treatment records. However, there is a notation in the Veteran's enlistment examination in May 1979 that at 5'7" and 228 pounds, he was 32 pounds overweight. He was found not qualified for military service but apparently qualified under a medically remedial enlistment program. The Veteran's weight was recorded as 250 pounds in his discharge examination in February 1973. An October 2014 pulmonary diagnostic study consult noted the Veteran presented with complaints of non-restful sleep. He was referred by his primary physician for "concerns of snoring and choking." He stated that he dozes off during the daytime. He stated he does not feel rested after sleep. He described having a cough with sleep. His BMI was noted as 52.93. His neck size was reported as 20.5 inches. The April 2015 sleep study indicated severe obstructive sleep apnea/hypopnea syndrome. The study noted moderate snoring, and fragmented sleep with multiple awakenings. The study indicated 24 awakenings. Low oxygen saturation was noted at 70 percent. Periodic limb movement index was 138. CPAP use was attempted but was not tolerated. During the January 2021 hearing, the Veteran stated that during service other service members would awaken him due to his snoring and respiratory difficulty. He stated that his first wife complained and his current wife also complains and will go into the other room to sleep. He stated that he noticed symptoms of sleep apnea just after service and his symptoms have continued over the years and worsened. His wife testified that he only slept a couple of hours at a time. He gets very irritable very easily because he's tired. Usually when he falls asleep his body is constantly in motion. His legs are twitchy, his arms are twitchy. He "tosses and turns constantly." So there is never really a restful sleep. The Veteran testified that he awakens a lot during the night. He is currently being treated for sleep apnea. He stated that he underwent a sleep test and was diagnosed with severe sleep apnea. He was provided with a CPAP machine, which he finds very difficult to wear due to his constant motion during the night; it gets tangled and he is unable to have it stay on for longer than 5 or 10 minutes. He was also prescribed medication but it hasn't helped, even when it was increased. The Veteran has asserted that his sleep apnea is related to military service, including exposure to herbicide agents and asbestos. Herbicide agent exposure has been established through favorable findings in a March 2020 rating decision. The Board also finds that asbestos exposure has been established based on the Veteran's MOS, service records, medical records showing pleural plaques, hearing testimony, and the Veteran's lay statements. The Veteran has not been afforded a VA examination for sleep apnea to include as due to exposure to herbicide agents and asbestos. The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. The Board finds that the Veteran's claim meets the threshold requirements of McLendon v. Nicholson, 20 Vet. App. 79 (2006), and therefore VA's duty to assist has been triggered. The Board finds that remand is warranted for an appropriate VA examination and opinion regarding the etiology of the Veteran's sleep apnea with limb movements. The matters are REMANDED for the following action: Schedule the Veteran for an examination with an appropriate examiner to address the nature and etiology of the Veteran's sleep apnea with limb movements. a. The examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused by, or related to military service, to include as due to herbicide agent exposure. b. The examiner should provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea with limb movements was caused by, or related to military service, to include as due to asbestos exposure. In providing the above opinions, the VA examiner must presume the Veteran was exposed to herbicide agents during service. The examiner should take into account that even though a disability is not on the list of diseases associated with exposure to herbicide agents, service connection may be based on proof of direct causation. The examiner must also presume that the Veteran was exposed to asbestos during service. In addition, the Veteran's testimony and lay statements must be considered in addition to the other evidence of record. The VA examination report must include a complete rationale for all opinions expressed. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.