Citation Nr: 21028178 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-37 093 DATE: May 10, 2021 ORDER Service connection for a respiratory disability, to include pulmonary fibrosis aggravated by chemotherapy, for the purposes of accrued benefits, is granted. FINDING OF FACT The Veteran's pulmonary fibrosis was aggravated by chemotherapy for service-connected colon cancer. CONCLUSION OF LAW The criteria for service connection for a respiratory disability, to include pulmonary fibrosis aggravated by chemotherapy, are met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1965 to December 1968. He died March 2015. The appellant is his surviving spouse. This appeal is before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. In January 2019 the Board remanded the appellant's claim with instruction to obtain a medical opinion from a VA examiner. Opinions were obtained in March 2019, January 2020, and July 2020. The Board is therefore satisfied that the instructions in its January 2019 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a respiratory disability, for the purposes of accrued benefits The appellant claims service connection for the Veteran's respiratory disability, for the purposes of accrued benefits. Accrued benefits are periodic monetary benefits authorized under law administered by VA to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). A claim for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000(c). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. See 38 C.F.R. § 3.160(d); see also 38 C.F.R. §§ 20.1103, 20.1104. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain diseases with a relationship to herbicide agent exposure, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records reflect that in July 1965 the Veteran reported sudden acute pain in his right chest that persisted for several hours then subsided. He then reported occasional pain with deep respiration but no dyspnea. X-rays showed a 40 to 50 percent pneumothorax on the right. He was admitted for several weeks and treated until it was reduced to 5 to 10 percent. In October 1965 a follow-up x-ray showed significant pleural thickening bilaterally but no evidence of pneumothorax. Follow-up chest x-rays in October 1967 were normal, and no abnormality was noted at his November 1968 separation examination. Private treatment records reflect that in August 1996 the Veteran underwent a chest x-ray showing a nodule in the left base of the lung. Because of his history of prostate cancer, it was initially presumed metastatic. In November 1999 the Veteran's treating urologist noted that when he was being treated for prostate cancer in 1996, he was found to have multiple small nodules in his lungs. He was diagnosed with a history of pulmonary nodules of uncertain etiology. A November 2001 chest x-ray showed bilateral pulmonary nodules, some of which appeared new. In December 2001 his pulmonologist believed the likelihood of malignancy was very small. A May 2003 x-ray showed interval appearance of left lower lobe infiltrate with otherwise stable cardiomegaly, interstitial changes, pulmonary nodules, and pulmonary vascular prominence. At an October 2003 pulmonary consultation, he was diagnosed with dyspnea and referred for testing. A November 2003 CT scan showed stable abnormalities, including parenchymal lung disease and multiple lung nodules, grossly unchanged since 2001. A December 2006 chest x-ray showed complete or near complete resolution of two left lower lung zone pulmonary nodules and stable chronic parenchymal findings. Private treatment records further reflect that in May 2009 the Veteran reported three weeks of dyspnea with exertion. An x-ray showed multifocal parenchymal infiltrates indicating pulmonary fibrosis versus pneumonic infiltrate. He was diagnosed with chronic obstructive pulmonary disease (COPD) with acute exacerbation and probable pneumonia. A June 2009 pulmonary function report stated that spirometry showed a mild restrictive pattern with no bronchodilator response. Based on this testing, in October 2009 his diagnosis was changed to mild restrictive lung disease. In April 2010 he reported slowly worsening shortness of breath. In September 2010, spirometry was technically within normal limits, but lung volumes were consistent with mild to moderate restrictive disease. Pulmonary function tests were concerning for significant interstitial lung disease. In November 2010 he reported that he had a left lung collapse while in service. His physician suspected sarcoidosis. A December 2010 biopsy was negative. In February 2011, an x-ray showed prominent bilateral interstitial lung markings and pleural calcifications suggestive of old asbestos exposure, and a CT scan showed advanced interstitial scarring and bullous parenchymal changes in the lungs, associated with multiple lung nodules, grossly stable since 2009. An April 2011 x-ray showed changes compatible with pulmonary fibrosis. A June 2011 x-ray showed unchanged diffuse interstitial lung disease. In October 2011, he reported progressive shortness of breath since starting chemotherapy for colon cancer. He was diagnosed with restrictive lung disease and sarcoidosis, though some of his shortness of breath was attributed to chemotherapy. An x-ray showed chronic interstitial changes through the lung fields as well as mediastinal adenopathy essentially unchanged since June. VA treatment records reflect that in December 2011 the Veteran reported that he had been diagnosed with COPD and asbestosis. Private treatment records reflect that in February 2012 the Veteran was admitted to the hospital with shortness of breath, cough, and hypoxemia. An x-ray showed fibrotic changes bilaterally that did not appear significantly changed. He was treated for pneumonia. A March 2012 x-ray showed no significant change in diffuse but patchy bilateral pulmonary parenchymal opacities, consistent with a chronic process and provided history of sarcoidosis. He was diagnosed with interstitial lung disease of uncertain etiology, suspected to be sarcoidosis but possibly methotrexate lung disease or interstitial pulmonary fibrosis. A week later he was diagnosed with hypoxia secondary to pulmonary fibrosis. He was placed on oxygen therapy. A May 2012 CT scan showed pulmonary fibrosis and multiple pulmonary nodules, which appeared unchanged in the lung bases. In a January 2013 statement, the Veteran reported his in-service collapsed lung incident. He also stated that he was exposed to asbestos in service by sleeping close to steam lines that were wrapped with asbestos. He denied having ever smoked tobacco. He stated that he had been diagnosed with COPD and another disability he could not recall. The Veteran underwent a VA examination in November 2013. He reported that he had been diagnosed with COPD about five years prior. He was diagnosed with current pulmonary fibrosis and a history of pneumothorax. The examiner opined that the disability was less likely than not related to service. This opinion was based on the rationale that there is no evidence in the medical literature to support pneumothorax as a cause of pulmonary fibrosis. His in-service pneumothorax was treated and resolved without recurrence. In a December 2013 statement, the Veteran stated that he was diagnosed with COPD and chronic bronchitis several years prior to being diagnosed with colon cancer. He stated that during treatment of colon cancer he experienced 3-4 episodes of pneumonia, bronchitis, and dehydration. He reported that he had been placed on oxygen. He contended that his colon cancer treatment aggravated his COPD. The Veteran underwent another VA examination in October 2014. He was diagnosed with idiopathic pulmonary fibrosis versus methotrexate induced lung disease, restrictive lung disease, and sarcoidosis. The examiner opined that the respiratory disabilities were less likely than not aggravated by chemotherapy for colon cancer. This opinion was based on the rationale that the fact that the Veteran uses oxygen more now is part of the natural progression of the interstitial lung disease rather than evidence of aggravation. In a November 2014 letter, the Veteran's private treating physician opined that his chemotherapy contributed to the worsening of his pulmonary fibrosis, such that he was now oxygen dependent. In March 2015 the Veteran died. His death certificate lists metastatic colon cancer as the cause of his death. In a May 2015 letter, the Veteran's private treating physician repeated his opinion that the chemotherapy worsened his fibrosis. He diagnosed possible sarcoid-induced pulmonary fibrosis compounded by chemotherapy for colon cancer. In a March 2019 VA medical opinion, the examiner opined that the Veteran's disability was less likely than not related to in-service asbestos exposure. This opinion was based on the rationale that while such exposure was highly probable, no asbestos-related lung disease was found. The examiner explained that although the Veteran's disability had some parallels to asbestosis, early asbestos-related disease is typically demonstrated by interstitial process in the lower lung zones with a ground-glass appearance creating an effect of a shaggy-heart silhouette. The Veteran's CT imaging lacked any pleural involvement, which is the hallmark of asbestos exposure. His condition was therefore more likely sarcoidosis and aggravation of lung fibrosis by chemotherapy. In a January 2020 addendum opinion, the examiner further clarified that COPD would not be medically expected as due to asbestos exposure. The examiner explained that asbestosis shows an absence of airflow obstruction, where the Veteran's spirometry showed reduced airflow, indicating obstructive lung disease. In a July 2020 VA medical opinion, the examiner opined that the Veteran's disability was less likely than not caused by prostate cancer. This opinion was based on the timeline, which indicated that he likely developed pulmonary fibrosis prior to developing prostate cancer. The examiner further opined that his lung disabilities were less likely than not caused by his metastatic colon cancer. This opinion was based on the same rationale, noting a diagnosis of pulmonary fibrosis years prior to colon cancer. The examiner further explained that the measured oxygen saturations appeared stable, indicating that his pulmonary fibrosis did not worsen during chemotherapy. The Board finds that the evidence is at least in equipoise as to whether the Veteran's pulmonary fibrosis was aggravated by his chemotherapy for his service-connected colon cancer. While the July 2020 VA examiner provided evidence that the Veteran's oxygen saturation did not worsen during his chemotherapy, both his private treating physician and the March 2019 VA examiner's opinion stated that such aggravation was caused by chemotherapy. Indeed, given this at-the-time uncontradicted evidence, it is unclear why the July 2020 VA examiner's opinion was necessary to obtain. Prior to the July 2020 opinion, aggravation beyond the baseline was supported by contemporaneous October 2011 treatment records, statements by his private treating physician dated November 2014 and May 2015, and the March 2019 VA examiner's opinion which found that his condition was most likely sarcoidosis and aggravation of lung fibrosis by chemotherapy. Indeed, the July 2020 VA examiner did not give an equipoise opinion specific to aggravation, but rather mentioned that aggravation was not supported in the rationale for a causation opinion. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran's pulmonary fibrosis was aggravated by his chemotherapy for his service-connected colon cancer. Service connection is therefore granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.