Citation Nr: 21031910 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-17 086 DATE: May 25, 2021 ORDER Entitlement to service connection for dementia, to include as due to asbestos exposure, is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for hypertension, to include as due to asbestos exposure, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's dementia began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for dementia are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from March 1955 until March 1959. Unfortunately, the Veteran died in May 2020 during the pendency of this appeal. The Veteran's surviving spouse has been substituted as the Appellant. This appeal has been before the Board on several prior occasions. Most recently, in April 2020, the Board remanded the claim for further development to include obtaining outstanding private and VA treatment records and addendum medical opinions. Subsequent to the Board's remand, the VA sent the Veteran a new VA Form 21-4142, Authorization to Disclose Information to the VA, in April 2020 because the original form completed by the Veteran was expired. Unfortunately, no response to the VA's request was received. For the issue of entitlement to service connection for dementia, the Board finds there has been substantial compliance with its prior remand directives. For the remaining issues, the Board finds there has not been substantial compliance with its remand directives and another remand is now required. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Prior to his death, the Veteran asserted that his dementia was etiologically related to his active service, to include as due to asbestos exposure. The Board notes that the Veteran's service treatment records were destroyed in a fire at the National Personnel Records Center in 1973. When service records are missing through no fault of the Veteran, VA has a heightened obligation to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing his claim, and to explain its decision. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). No presumption, however, either in favor of the Veteran or against VA arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-218 (2005). The Veteran's exposure to asbestos has been conceded by VA. See July 2016 rating decision. A review of the Veteran's private treatment records shows a diagnosis of vascular dementia. See November 2015 Carolina Convenient Care treatment record. The question for the Board is whether the Veteran's diagnosed vascular dementia is related to his service including due to conceded asbestos exposure. A VA etiology opinion was obtained in March 2018. That opinion was inadequate and non-probative because the opinion provider relied upon an absence of injury documented in service to support their negative nexus opinion although the Veteran's records were destroyed in a fire at the records repository in 1973. The opinion provider also reported that there was no theoretical basis to conclude any of these problems would be caused by exposure to asbestos but did not explain that statement or otherwise provide medical reasoning to support it. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Another VA etiology opinion was obtained in August 2019. That opinion was inadequate because the opinion provider reported that accepted medical literature did not established asbestos exposure as an etiology for dementia. However, the Veteran's representative, in a December 2019 informal hearing presentation, cited medical literature that does show a link between occupational exposure to asbestos and dementia. The August 2019 addendum opinion is inadequate because it does not consider all relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Another addendum opinion was obtained in January 2020. However, that opinion also failed to address the evidence cited by the Veteran's representative in the December 2019 informal hearing presentation and is, therefore also inadequate. Id. Subsequent to the Board's most recent remand, the agency of original jurisdiction (AOJ) obtained addendum medical opinions in May 2020. Both opinions obtained were entered into the record on May 25, 2020 and are authored by the same VA examiner. The first opinion is inadequate, because the provided negative nexus opinion is not supported by adequate rationale. The rationale provided states that the Veteran did not exhibit symptoms of dementia in service, dementia was first diagnosed in October 2014, and the relationship between asbestos exposure and dementia is not established. This opinion does not address the medical literature submitted by the Veteran regarding a relationship between asbestos exposure and dementia. Because it does not consider all relevant evidence of record, the opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The second opinion provided on May 25, 2020 corrects the inadequacies of the first opinion from the same date. The examiner reached a negative nexus opinion. In support of the provided negative nexus opinion, the examiner considered and discussed the article cited by the Veteran's representative in the December 2019 informal hearing presentation as well as positive evidence from prior medical opinions. The examiner noted that the study cited by the Veteran contained a small sample size, was not longitudinal in nature, and was anecdotal in nature. The examiner also cited additional medical literature and risk factors for dementia including increased age, hypertension, and history of smoking, all of which were present in this Veteran. The Board finds the second May 25, 2020 medical opinion to be substantially probative because it contains a clear conclusion supported by facts and data and a reasoned explanation connecting the two. Id. While the Board understands and is sympathetic to the assertions of the Veteran and the Appellant that the Veteran's dementia was related to his asbestos exposure in service, the etiology of his condition is medically complex and goes beyond a simple and immediately observable cause-and-effect relationship. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In an absence of evidence that the Veteran or the Appellant possessed specialized medical knowledge, experience, or training, and as such, they are not competent to provide an etiological opinion for this issue. The most probative evidence of record in this case is the second May 2020 VA medical opinion, and it is not favorable. The article cited by the Veteran in his representative's December 2019 informal hearing presentation, "Asbestos Exposure and Alzheimer Disease," was considered by the Board and the May 2020 opinion provider but is outweighed by the May 2020 VA medical opinion. Accordingly, the Board finds that the preponderance of evidence is against the claim for service connection, and, thus, the benefit of the doubt provision is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim must be and is denied. REASONS FOR REMAND The Board cannot make a fully informed decision on the claim for entitlement to service connection for a lumbar disability because all medical opinions of record are inadequate. The Board has previously found VA medical opinions obtained in March 2018, August 2019, and January 2020 to be inadequate. The AOJ obtained another addendum medical opinion in June 2020. The opinion provider reached a negative nexus opinion. However, the opinion provider stated that there is no evidence of a back condition prior to the diagnosis of osteoarthritis of the spine on April 14, 2017. However, private treatment records from Carolina Convenient Care demonstrate degenerative disc disease of the lumbar spine as shown by MRI in December 2015. Also, the Veteran's lay statement that he was treated for a back injury in service is evidence of a prior back condition. See August 2016 Notice of Disagreement. Because the June 2020 addendum medical opinion is based upon an inaccurate factual premise and does not appear to have considered all evidence of record, the opinion is inadequate and non-probative. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Reonal v. Brown, 5 Vet. App. 48, 460-461 (1993). On remand, an adequate addendum etiology opinion must be obtained. The Board cannot make a fully informed decision on the issue of entitlement to service connection for hypertension because all medical opinions of record are inadequate. The Board has previously found the March 2018, August 2019, and January 2020 medical opinions to be inadequate. The AOJ obtained an additional VA addendum medical opinion in June 2020. The opinion provider reached a negative nexus opinion. However, the opinion provider stated, "the current, widely accepted, peer-reviewed literature has not established a link between asbestos and hypertension, as to cause and effect." However, the opinion provider did not explain if the lack of established link is due to a lack of research regarding such a connection or if scientific studies have shown no such connection. Additionally, the opinion provider did not address the article cited by the Veteran's representative in a March 2020 Post Remand Brief nor the article cited by the Veteran's representative in the December 2019 informal hearing presentation, which appears to describe a relationship between asbestosis and hypertension. The opinion is, therefore, inadequate. On remand, an adequate etiology opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the Veteran's lumbar spine condition. The opinion provider should be provided with all pertinent documents, including a copy of this remand. After a thorough review of the record, the opinion provider is asked to opine as to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability was at least as likely as not caused by or otherwise related to his active service? The opinion provider is notified that the Veteran's service treatment records were destroyed by a fire at the National Personnel Records Center in 1973 and are unavailable for review. This should not be held against the Veteran. Additionally, the Veteran, prior to his death, stated that he was treated for a back injury in service. All provided opinions must be supported by complete rationale. If the opinion provider determines that a requested opinion cannot be made without resort to speculation, they should say why that is. 2. Obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the Veteran's hypertension. The opinion provider should be provided with all pertinent documents, including a copy of this remand. After a thorough review of the record, the opinion provider is asked to opine as to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was at least as likely as not caused by or otherwise related to his active service to include conceded exposure to asbestos? The opinion provider is notified that the Veteran's service treatment records were destroyed by a fire at the National Personnel Records Center in 1973 and are unavailable for review. This should not be held against the Veteran. Additionally, the opinion provider should also consider, and discuss as appropriate, the articles cited by the Veteran in his representative's December 2019 informal hearing presentation and March 2020 Post Remand Brief. All provided opinions must be supported by complete rationale. If the opinion provider determines that a requested opinion cannot be made without resort to speculation, they should say why that is. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.