Citation Nr: 21029114 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-32 180 DATE: May 12, 2021 REMANDED Entitlement to service connection for respiratory problems, also claimed as due to asbestos exposure, is remanded. Entitlement to service connection for blood blockage on the left side of the neck is remanded. Entitlement to service connection for hypertension, claimed as high blood pressure, is remanded. Entitlement to service connection for a right hip condition, claimed as rheumatoid arthritis of the hip, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from April 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was afforded a videoconference hearing in March 2017. A transcript of the hearing is of record. In May 2018, the Board remanded the issues on appeal to the RO for further development. 1. Entitlement to service connection for respiratory problems also claimed as due to asbestos exposure is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for his respiratory conditions. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its May 2018 Remand, the Board directed the RO to Schedule the Veteran for a VA examination, with an appropriate examiner, to determine if he has a respiratory disability that is related to service. Access to the electronic claims files must be made available to the examiner for review. As to each and every respiratory/pulmonary condition diagnosed at the examination, or diagnosed in the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's disability had its onset in service or is causally related to service to include asbestos exposure while in the Navy. In doing so, the VA examiner must address: Service treatment complaints to include sinus congestion cough in September 1969; head cold symptoms in March 1970, May 1970 and December 1970; and chest congestion and cough in September 1970 and October 1970. The September 2011 B-reader chest Xray interpreted as showing bilateral interstitial fibrosis which is causally related to asbestosis provided the subject's exposure history and period of latency are appropriate. The November 2011 report of Dr. D and opinion that within reasonable medical probability the Veteran suffers from bilateral asbestos related lung disease. The March 2016 assessment of COPD due to industrial exposure while in the Navy causing shortness of breath and occasional wheezing with primary complaint being cough, and asbestos exposure due to occupational exposures causing shortness of breath. In a November 2020 respiratory examination, the examiner noted that the Veteran had a diagnosis of COPD, but did not indicate that the Veteran had interstitial lung diseases (Interstitial lung diseases include but are not limited to asbestosis, diffuse interstitial fibrosis, interstitial pneumonitis, fibrosing alveolitis, desquamative interstitial pneumonitis, pulmonary alveolar proteinosis, eosinophilic granuloma of lung, drug-induced pulmonary pneumonitis and fibrosis, radiation-induced pulmonary pneumonitis and fibrosis, hypersensitivity pneumonitis (extrinsic allergic alveolitis) and pneumoconiosis such as silicosis, anthracosis, etc.). However, the examiner noted that the Veteran had "other pertinent findings, complications, conditions, signs or symptoms related" to the diagnosed condition of COPD and noted asbestos exposure and asbestosis. However, the examiner also noted that the Veteran only had one respiratory condition, COPD. The Board finds this examination inadequate for adjudication purposes due to its inconsistency about diagnosed conditions, as well as its lack of an opinion on the issue of service connection. In a November 2020 addendum opinion, the VA examiner noted that the Veteran's respiratory condition was less likely than not due to asbestos exposure. However, the examiner does not state which respiratory condition he is addressing in his opinion. Additionally, the examiner does not address the items directed in the May 2018 Board remand. As such, there has not been compliance with the Board remand directives and a remand for a VA respiratory examination is necessary. Additionally, the Veteran contends that his respiratory conditions were caused by asbestos exposure in service, to include while aboard the USS Newport News. The Veteran's military occupational specialty (MOS) was boatswain's mate and seaman, and although the risk of asbestos exposure is considered minimal, a VA opinion should be obtained regarding the etiology of his respiratory conditions, to include asbestosis and COPD, which addresses his risk of asbestos exposure. Regarding claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). If an MOS is listed as minimal, probable, or highly probable asbestos exposure should be conceded for the purposes of scheduling an examination. In this case, the VA examiner did not adequately address the conceded exposure or the Veteran's lay statements of exposure. Instead, the examiner noted "I am not at this time able to confirm exposure or the level of exposure veteran may have had while in the navy for less than 2 years as a Boatswain's mate and occupational expectations." As such, the Board finds that another examination, with a different examiner, is warranted to properly address the Veteran's claim. 2. Entitlement to service connection for blood blockage on the left side of the neck is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for blood blockage on the left side of the neck. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its May 2018 Remand, the Board directed the RO to Schedule the Veteran for a VA examination to determine if he has high blood pressure or blood blockage on the left side of the neck that is related to service. Access to the VBMS and the electronic claims files must be made available to the examiner for review. After examination and review of the record, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance that high blood pressure or blood blockage on the left side of the neck had its onset in service or was caused by any incident of service to include in service asbestos exposure. In December 2018 and November 2020 hypertension examinations, the examiner did not make any findings related to the Veteran's vascular condition of the neck, if any. As such, there has not been compliance with the Board remand directives and a remand for a VA vascular examination is necessary. 3. Entitlement to service connection for a right hip condition, claimed as rheumatoid arthritis of the hip, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a right hip condition because no VA examiner has opined whether the Veteran's currently diagnosed degenerative arthritis of the right hip is related to his military service. A November 2018 VA examination found that the Veteran did not have a current diagnosis of right hip rheumatoid arthritis. A subsequent November 2018 VA examination found that the Veteran had degenerative arthritis of the right hip. In a November 2018 VA addendum opinion, the examining physician opined that No confirmed rheumatoid arthritis therefore no level of severity indicated.No functional impairments on veteran's ability to function in an occupational environment due to rheumatoid arthritis becauserecords and history do not confirmor imply the diagnosis. However veteran does have degenerative arthritis of the right hip that can be addressed separately. The examiner noted the diagnosis of degenerative arthritis but failed to provide an opinion on service connection. As such, the examination is inadequate for adjudication purposes. However, the Board finds that an examination and a nexus opinion that contemplates this diagnosis is necessary before the Board can adjudicate the claim. Given the evidence of chronic hip pain in service, there is an indication it could be related to his later-diagnosed degenerative arthritis. Thus, an examination is required to consider service connection on a direct basis. 4. Entitlement to service connection for hypertension. As noted in the prior remand, the Veteran has argued that his hypertension may be related to his respiratory issues. As the service connection claim for respiratory issues is being developed, the Board defers consideration of the hypertension claim at this time. 4. Entitlement to TDIU is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for a right hip condition, claimed as rheumatoid arthritis of the hip, could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding private or VA treatment records pertinent to the claims on appeal. 2. Schedule the Veteran for a VA examination, with a pulmonologist or other similarly qualified physician, to determine if he has a respiratory disability that is related to service. Access to the electronic claims files must be made available to the examiner for review. As to each and every respiratory/pulmonary condition diagnosed at the examination, or diagnosed in the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's disability had its onset in service or is causally related to service to include asbestos exposure while in the Navy. In doing so, the VA examiner must address: Service treatment complaints to include sinus congestion cough in September 1969; head cold symptoms in March 1970, May 1970 and December 1970; and chest congestion and cough in September 1970 and October 1970. The September 2011 B-reader chest Xray interpreted as showing bilateral interstitial fibrosis which is causally related to asbestosis provided the subject's exposure history and period of latency are appropriate. The November 2011 report of Dr. D and opinion that within reasonable medical probability the Veteran suffers from bilateral asbestos related lung disease. The March 2016 assessment of COPD due to industrial exposure while in the Navy causing shortness of breath and occasional wheezing with primary complaint being cough, and asbestos exposure due to occupational exposures causing shortness of breath. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for a VA vascular examination for his claimed vascular condition of the neck. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Does the Veteran have a vascular condition, claimed as blockage of the neck? If so, is the neck vascular disability at least as likely as not related to service? In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for a VA examination for his right hip condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the right hip disability including any form of arthritis at least as likely as not related to service, including exposure to cold weather and an in-service hip injury? In doing so, the VA examiner must address the Veteran's claim of exposure to cold weather during service while in the north Atlantic in Finland and the February 1970 complaint of right leg pain. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the right hip disability, to include degenerative arthritis (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.