Citation Nr: 21028157 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-38 414A DATE: May 10, 2021 ORDER Entitlement to service connection for asthma and chronic obstructive pulmonary disease (COPD), claimed as a respiratory disorder, is denied. Entitlement to service connection for bronchiectasis is denied. REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. Prior to his death, the Veteran did not have a diagnosis of asbestosis or any other asbestos-related disease; his diagnosed asthma and COPD were not present in service and there is no evidence relating them to any incident of service to include exposure to asbestos. 2. The Veteran was not shown to have bronchiectasis prior to his death. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder to include asthma and COPD are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for bronchiectasis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to September 1983. In August 2016, he testified at a Board hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. The case was remanded by the Board in August 2018 for additional development. During the pendency of the appeal, VA was notified of the Veteran's death in December 2018; the appellant is his surviving spouse and has been substituted as the claimant to complete the processing of the claims under the provisions of 38 U.S.C. § 5121A. Service Connection Prior to his death, the Veteran sought service connection for respiratory disorders, to include asthma, COPD, and bronchiectasis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as "chronic" by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There are no specific statutory or regulatory criteria governing claims of entitlement to service connection for residuals of asbestos exposure and applicable criteria provide no presumption of service connection for asbestos exposure claims. In general, VA must determine whether military records demonstrate evidence of asbestos exposure during service; whether there was pre-service, post-service, occupational, or other asbestos exposure; and whether there is a relationship between asbestos exposure and the claimed disease. However, there are certain established procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). These guidelines note that the inhalation of asbestos fibers can produce fibrosis and tumors, with interstitial pulmonary fibrosis, i.e., asbestosis, being the most common disease. A clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea, end-respiratory rales over the lower lobe, compensatory emphysema; clubbing of the fingers at late stages; and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancer of the gastrointestinal tract. VA also recognizes some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. respiratory disorders, to include asthma, COPD, and bronchiectasis The Veteran asserts that his current respiratory disorder is related to asbestos exposure as a result of his in-service duties. See statements dated in September 2012 and December 2013. He states that he was tasked with maintaining equipment in the engine and boiler rooms and that he was exposed to dust from welding, cutting metal, brazing, and paint removal. His DD Form 214 confirms his military occupational specialty (MOS) as communications engineer aboard the USS Inchon. Therefore, his account of in-service asbestos exposure is credible and consistent with the circumstances of his service. 38 U.S.C. § 1154(a). The claims file also includes evidence that the Veteran was possibly exposed to occupational hazards during his post-service employment while working at a textile plant. See April 1984 VA examination report. In addition, VA and private treatment records also note he was a longtime smoker for most of his adult life. Although the Veteran quit smoking in 2003, he admitted to having resumed in 2017 despite developing asthma and COPD. See office visit followup record from R. Rao, M.D., dated June 14, 2012 and VA outpatient treatment record dated June 7, 2018. Service treatment records show the Veteran was evaluated for various symptoms including sinus pain, drainage, cold symptoms, postnasal drip, attributed to primarily to upper respiratory infections, but do not otherwise show signs or symptoms suggestive of asbestosis or any other chronic respiratory disorder. These records also do not document complaints or findings suggestive of a chronic sleep disorder including specific complaints of disordered sleep, snoring, shortness of breath, fatigue, excessive daytime sleepiness, or other signs indicative of sleep apnea. At his separation physical in 1973, the chest and lungs were normal on clinical evaluation and a chest X-ray was within normal limits with no defects noted. The Veteran did not indicate any specific respiratory complaints and there are no references to breathing problems or respiratory impairment of any sort and specifically denied a history of chronic/frequent colds, sinuses, asthma, chest pain/pressure, or chronic cough frequent trouble sleeping. A VA examination in 1984 within a year of service, is negative for any specific breathing complaints or respiratory symptoms in general. On examination the lungs were clear to percussion to auscultation. In fact, the examiner noted there was no respiratory problem found. Consequently, service connection also may not be made on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). There is also insufficient evidence of continuity of symptoms in the immediate years after separation from service to enable an award of service connection solely on this basis under the provisions pertaining to "chronic diseases." Walker, 708 F.3d at 1338. Instead, the earliest evidence (documentation) of any pertinent symptoms or complaints is found in private treatment records dated in 2011, almost 30 years after the Veteran separated from service. At that time, he reported occasional shortness of breath and gasping for breath at night. A June 2012 Pulmonary Function Test (PFT) showed a mild restriction with a mild diffusion defect and a July 2012 sleep study confirmed obstructive sleep apnea. These records also note a past medical history of asthma with a likely COPD component in October 2013. Subsequently dated medical records reflect a diagnosis of COPD. See private treatment records from R. Rao, M.D. and E.M. Cannington, M.D., dated June 2012 to October 2013. See also Respiratory Conditions Disability Benefits Question dated April 13, 2016. Other than asthma, COPD, and mild restriction, no other respiratory disorders, including bronchiectasis are noted in post-service treatment records. These post-service treatment records do not suggest that any pertinent symptomatology originated during military service and there is no evidence of record to suggest the presence of a chronic respiratory disorder or sleep apnea prior to the indicated date of diagnosis. Although not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The Veteran has not presented any factors that would explain the gap in time. When examined by VA in October 2013, the Veteran reported that he had been prescribed Advair in the 1990s for lung/breathing problems. After reviewing the claims file and conducting an examination, the examiner diagnosed asthma that was essentially unrelated to the Veteran's in-service treatment of upper respiratory infections. It was explained that asthma is considered to be a lower respiratory infection rather than an upper respiratory infection such as the "common cold." Respiratory Conditions (Other Than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire (DBQ). Respiratory Conditions (Other Than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire (DBQ). However, also of record are medical opinions from private physicians who intimated a possible nexus between the Veteran's asthma and chronic airway obstructive symptoms and service. In particular, the physicians noted the Veteran's multiple visits for shortness of breath, sore throat, nasal/sinus trouble, wheezing, and drainage symptoms during service and determined that these in-service symptoms were the same symptoms he currently experienced. See medical opinions from Dr. Cannington, M.D., dated December 2013 and from Dr. Rao, dated March 2014. Thereafter, in a June 2014 addendum opinion, the VA examiner reiterated her previous conclusion that the Veteran's asthma was not likely due to treatment of upper respiratory infections, cold symptoms, chest congestion, sinus or allergies during service. Referencing post service records, including the December 2013 opinion, it was explained that following the Veteran's discharge in 1983 there are no treatments of an asthma condition until 2012 more than 28 years later. See Medical Opinion DBQ, dated June 3, 2014. In May 2019, after additional review of the record including post military medical records and examination reports, the same VA examiner concluded that a respiratory disorder, claimed as asthma and COPD was not corroborated as having occurred during military service to include asbestos exposure. She explained that there were no military or post military treatments of an asbestosis condition and that as a military communication technician the Veteran had minimal probability for asbestos exposure. The examiner then noted the Veteran had a long-term smoking history of 40 years since service in 1968 and only quit smoking cigarettes approximately 8 years prior. According to medical literature, the main cause of COPD is tobacco smoke, marijuana smoke, cigar smoke, secondhand smoke, pipe smoke, air pollution and manufacturing fumes. Also, according to medical literature, a person usually has to have a long period of high levels of asbestos exposure before development of asbestosis or chronic lung disease/condition. The Veteran's military service was of a short duration from 1979 to 1983 and his job responsibility of communication technician had minimal probability of asbestos exposure. Thus, it made it less likely that the Veteran's claimed asthma and COPD was caused by asbestos exposure during military service. See Medical Opinion DBQ dated May 3, 2019. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claims. While none of the VA opinions of record provide a positive opinion, the Board considers the 2019 opinion particularly probative as it is based upon a review of the claims file, including the Veteran's in-service history, the course of his respiratory complaints and symptoms, risk factors such as his smoking history, and his belief that his current respiratory problems are a continuation of upper respiratory infections and treatment shown in service. The 2019 VA examiner also performed a review of the literature related to the likelihood or not that the Veteran's diagnosed respiratory disorders were associated with asbestos exposure. Because the VA examiner's opinion provides an explanation that contains clear conclusions and supporting data, the Board affords it significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Careful consideration has also been given to the private opinions. However, these opinions while supportive of the claim, are limited in terms of their ultimate probative value as neither physician referenced the primary risk factors predisposing the Veteran to respiratory problems, namely his smoking history, nor explain how it might have affected his asthma and chronic airway obstructive symptoms. So, while not discounted entirely, the private opinions are entitled to less probative weight than the VA medical opinions. Although the Veteran also claims to have bronchiectasis, the Board finds that the primary impediment to a grant of service connection is the absence of a current disability. As noted above, service treatment records fail to reveal any significant signs or symptoms that can be construed as related to chronic upper respiratory disorder prior to his separation from service in 1973. There are also no objective clinical findings or assessments sufficient to establish a diagnosis of bronchiectasis in post-service treatment records. Instead, the VA and private examiners concluded the Veteran's symptoms were more likely explained by different diagnoses, namely asthma and COPD. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). So, without competent evidence of bronchiectasis, service connection cannot be awarded. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Accordingly, the preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). REASONS FOR REMAND Unfortunately, because the development requested in the Board's August 2018 remand has not been completely performed, the allergic rhinitis and sleep apnea issues are being remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Prior to his death, the Veteran reported experiencing symptoms such as chronic nasal congestion and colds since service. Service treatment records reflect numerous complaints of and treatment for sinus congestion and nasal drainage. For instance, treatment records dated in February 1983 show he presented with cold symptoms and was diagnosed with a sinus disability. Post-service treatment records dated in December 2012 reflect a diagnosis of chronic allergic rhinitis. At that time, the physician noted the presence of allergy symptoms year-round, which were exacerbated in the fall and winter seasons. Treatment records dated in October 2013 confirmed a diagnosis for allergic rhinitis and a physician's statement dated in December 2013 intimated a possible nexus between the Veteran's symptoms and service. In particular, the physician noted that the symptoms the Veteran experienced in service were the same symptoms he currently experiences. In 2018, the agency of original jurisdiction (AOJ) was instructed to obtain a VA medical opinion to address etiology of the Veteran's allergic rhinitis. The examiner was to discuss the significance, if any, of the symptomatology documented in service treatment records and determine whether it represented an early manifestation of the disability. See August 2018 Board Remand. Unfortunately, the VA examiner in May 2019 failed to do so. As this was a primary reason for remanding the appeal, the Board cannot now rely on a negative VA opinion that does not provide the requested information. Therefore, an addendum opinion is needed. Prior to his death, the Veteran also asserted that his sleep apnea was proximately due to or aggravated by his respiratory condition. Because the disability picture remains unresolved, the sleep apnea claim is inextricably intertwined with the allergic rhinitis claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, adjudication of this claim must be deferred until after completion of the actions requested below. The matters are REMANDED for the following action: Obtain medical opinions that address the nature and etiology of the claimed allergic rhinitis and sleep apnea. With regard to allergic rhinitis: The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that allergic rhinitis had onset in, or is otherwise related to, active military service. The opinion must discuss whether the disability picture presented is consistent with the Veteran's reports (lay observations) of onset in service and continuity of complaints since service and whether any, of the symptomatology documented in service treatment records represents an early manifestation of the disability. The examiner must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. With regard to sleep apnea: The examiner must then provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that sleep apnea had onset in, or is otherwise related to, active military service. For the purposes of this opinion, the examiner should assume as true that the Veteran experienced sleeping problems (to include cessation of breathing at night, loud snoring, and daytime somnolence) during and since service, as the Veteran and others have attested. If sleep apnea cannot be regarded as having had its onset during active service, the examiner should state whether it is at least as likely as not, (a probability of 50 percent or greater), that it was aggravated by allergic rhinitis. If no aggravation is found, the examiner should specifically indicate so. In this context, "aggravation" refers to any incremental increase in disability, regardless of its permanence. The term "incremental increase in disability" means additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions. Aggravation of a disability need not be permanent. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.