Citation Nr: 21039725 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-10 589 DATE: July 1, 2021 REMANDED Entitlement to service connection for a respiratory disorder, to include asthma, is remanded. Entitlement to service connection for a left knee disability, to include on a secondary basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1983 to February 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. 1. Entitlement to service connection for a respiratory disorder, to include asthma, is remanded. During the August 2020 hearing, the Veteran testified that his claimed respiratory disorder was caused by exposure to hazardous gasses, to include Freon and secondhand smoke, during service. In this regard, the Veteran reported that he was stationed aboard the U.S.S. Pittsburg, SSH 720, a newly constructed Los Angeles Class Attack Submarine, and although he did not work directly with such gasses, they were frequently released into the air when tanks were exhausted and by reactors and refrigeration units. In this regard, the Veteran reported that there was nowhere for the gasses to go on the submarine, and as a result, the gas detection alarms on the submarine went off frequently, requiring the crew members to wear special masks. He further testified that mild activity, taking, and walking moderate distances caused him to experience shortness of breath and rendered him unable to breathe. See October 2017 Hearing Testimony; August 2020 Hearing Transcript, pages 6-11. A review of the service treatment records (STRs) shows a March 1982 enlistment report of medical examination that notes the Veteran's lungs and chest to be normal. In March 1983, the Veteran stated that he had been experiencing a headache, dizziness, and coughing up blood for three days. He was diagnosed with an upper respiratory infection. A record of occupational exposure to ionizing radiation dated from December 1983 to February 1989 shows that the Veteran was exposed to gamma and x-ray and neutron multiple times. The final recorded entry, dated in February 1989, indicates that the Veteran's total lifetime exposure to ionizing radiation was 0.199 roentgen equivalent man (REM). In addition, an addendum to the record of occupational exposure to ionizing radiation, dated in February 1986, shows that the Veteran was exposed to gasses, which had been vented into the Engine room, rather than all over the submarine, for approximately 20 minutes. Radiation levels were less than or equal to 0.1 milliroentgens per hour, and airborne gaseous activity, representing whole body exposure, was 2.6 times the limit for continuous exposure to short-lived airborne gasses at the peak during the incident. The addendum indicates that all personnel donned emergency air breathing apparatus as soon as the incident was discovered but indicates that no other anticontamination clothing was worn. In addition, the addendum states that all personnel on board the submarine were monitored for internal contamination, but no abnormal contamination was discovered. In February 1988, the Veteran endorsed nausea, vomiting, and a mild dry cough. The assessment was viral upper respiratory infection caused by mild dehydration history. In addition, an undated medical record shows that the Veteran was diagnosed with rule out recurrence of bronchial asthma due to pollens and dust. However, the Veteran's lungs and chest were noted to be normal on the February 1989 separation report of medical examination, and while the Veteran reported pain or pressure in chest and chronic cough on the corresponding report of medical history, the examiner noted that the Veteran had experienced dull and sharp pericardial chest pain and a dry, nonproductive cough which had persisted for nine months but found that both conditions had resolved. See October 1989 STR Medical. A review of the post-service treatment records shows that the Veteran underwent a VA examination for disability evaluation in September 1989. The examiner noted that the Veteran had a dry cough from a recent upper respiratory infection. A chest x-ray obtained in conjunction with the examination was negative. See August 1989 VA examination. An October 2001 primary care outpatient note shows that the Veteran reported a history of childhood "asthma" with intermittent hay fever symptoms but indicated that symptoms worsened during service. He further reported that he had been prescribed theophylline and inhalers at times but denied a history of allergy shots. The assessment was wheezing, possibly due to bronchoconstriction after addition of propranolol. The examiner also determined that the Veteran's asthma history was not classic. The Veteran was subsequently diagnosed with mild asthma in September 2003, and in May 2006, the Veteran was diagnosed with asthma and prescribed Prednisone taper and an Albuterol inhaler. See November 2017 CAPRI. The Veteran underwent a VA examination for respiratory conditions in May 2014. The examiner found that the Veteran did not have a current respiratory disorder. During the examination, the Veteran reported that he began experiencing respiratory symptoms, to include shortness of breath, in or around 1988. He further stated that he was exposed to Freon and secondhand smoke during service. An x-ray obtained in connection with the examination revealed no acute disease, but spirometry revealed a moderate airways obstruction with a significant response to bronchodilator. Following the examination, the examiner reported that the examination results were unremarkable and yielded no findings to warrant a diagnosis. See May 2014 C&P examination. Following a review of the evidence of record, the Board finds that a remand is warranted to obtain an addendum medical opinion to reconcile and/or address the conflicting medical evidence of record regarding the Veteran's respiratory disorder. In this regard, the Board finds that the evidence of record is unclear as to whether there is a diagnosis associated with the Veteran's claimed respiratory disorder. The Board notes that the May 2014 VA examination report shows that the Veteran did not have a diagnosed respiratory disorder. Notably, however, the VA examiner did not consider the September 2003 and May 2006 VA treatment records, which show that the Veteran has been diagnosed with mild asthma and asthma or proffer an opinion as to whether either diagnosis was made in error. See May 2014 C&P examination; see also November 2017 CAPRI. Additionally, the Board finds that the May 2014 VA examiner did not provide rationale to support his opinion that the Veteran did not have a current respiratory disorder. In this regard, the Board notes that it is unclear how the examiner determined that the Veteran did not have a diagnosed respiratory disorder when spirometry testing performed in conjunction with the examination revealed a moderate airway obstruction with a significant response to bronchodilator. See May 2014 C&P examination. The Board notes that a "current" disability for the purpose of compensation benefits includes any disability that has been diagnosed during the course of the appeal, meaning since the claim was filed, even if the disability resolves during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Based on the foregoing, the Board finds that a remand is warranted to obtain an addendum medical opinion to determine whether the Veteran currently has or, at any time during the period on appeal, had a respiratory disorder, to include asthma, and whether such disability is etiologically related to the Veteran's active duty service, to include as due to exposure to hazardous gasses, to include Freon and secondhand smoke, while he was serving on active duty. 2. Entitlement to service connection for a left knee disability, to include on a secondary basis, is remanded. During the August 2020 hearing, the Veteran testified that he injured his left knee after falling down a ladder during a drill during service and stated that he has continued to experience progressive left knee pain since the initial in-service injury. The Veteran further testified that the initial left knee injury was small and not recorded in his STRs because it was considered trivial at the time. Alternatively, the Veteran testified that his claimed left knee disability may have been caused or aggravated by his service-connected right knee or lumbar spine disabilities. During the August 2020 Board hearing, the Veteran further acknowledged that he previously underwent VA examinations in 2014 and 2017, but indicated that both examiners found that he did not have a left knee disability. However, the Veteran argued that the examiner failed to consider the effect of functional impairment caused by his left knee pain. In this regard, the Veteran testified that he has left knee pain and flare-ups, which cause functional impairment and limit his ability to get up and down, walk, kneel, traverse stairs, pick things up, and move his knee. See August 2020 Hearing Transcript, pages 2-6. The Veteran's STRs are silent as to any complaints or treatment for a left knee injury. In this regard, a January 1986 medical record shows that the Veteran sustained a chip fracture to his left knee three years prior, but he only reported right knee pain at that time. See October 1989 STR Medical. The Veteran underwent a VA joints examination in September 1998. The examiner diagnosed the Veteran with right knee pain but did not make any findings regarding the Veteran's left knee. See September 1998 VA examination. The Veteran was afforded a VA examination for knee and lower leg conditions in May 2014. The examiner found that the Veteran did not have a current knee or lower leg disability. During the examination, the Veteran reported that he injured his right leg after he fell through a hatch during service. He further stated that he subsequently began experiencing left knee pain, in addition to his right knee pain. The Veteran denied flare-ups, and the examiner found that the Veteran did not have any functional loss or functional impairment of either knee or lower leg. Following the examination, the examiner found that the Veteran's service-connected condition had resolved with no objective residuals noted on examination. See May 2014 C&P examination. In November 2017, the Veteran underwent a VA examination for knee and lower leg conditions. The examiner diagnosed the Veteran with degenerative right knee arthritis but found that he did not have a current left knee or lower leg disability. During the examination, the Veteran reported that both his knees felt stiff and painful in the morning and stated that he was barely able to walk up and down the stairs. The Veteran also reported flare-ups, which were manifested by decreased range of motion due to increased pain, and functional loss or impairment, to include decreased motion and increased pain. However, the examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time or with flare-ups because it was not observed. See November 2017 C&P examination. In January 2018, the Veteran stated that he had been experiencing progressive, dull left knee pain for three years. To this end, the Veteran stated that his left knee gave out, felt as though it popped forward, and was painful at rest. The Veteran further stated that the pain prevented him from walking down stairs and made it difficult for him to walk up stairs. On examination, the Veteran's left knee was swollen and cool to the touch, and the examiner noted that the Veteran had a "gimping gait[.]" In addition, an x-ray revealed soft tissue swelling and degenerative changes with a trace effusion, but no acute osseous injury was identified. The examiner commented that the Veteran's x-ray revealed mild arthritis with surrounding tissue swelling and a trace amount of fluid around the knee. The assessment was left knee pain. See March 2019 CAPRI. The Veteran last underwent a VA examination for knee and lower leg conditions in April 2019. The examiner diagnosed the Veteran with bilateral knee degenerative arthritis. During the examination, the Veteran endorsed bilateral knee pain and a small ache associated with just walking around. The Veteran also endorsed flare-ups, which occurred approximately three days two times per month and which was manifested by occasional aches. The Veteran also reported functional loss or impairment of the right knee, but he did not endorse any left knee functional impairment. The examiner stated that he would expect loss of minimal overall strength, coordination, and fatigability associated with repetitive movements with repetitive use over time and minimal loss of five percent coordination and fatigability associated with repetitive movements due to pain. The Veteran also stated that he was not able to work. In this regard, the Veteran reported that he had worked in graphic design for several years and subsequently went into security but indicated that he could no longer perform security work because of the amount of walking required by such employment. Following the examination, the examiner noted that the Veteran had confirmed degenerative changes in his left knee but opined that such changes were minimally limiting in severity and not service connected. To this end, the examiner noted that the Veteran had minimal general changes in both knees and, as the changes were bilateral, they were consistent with the Veteran's age. As such, the examiner found that the degenerative changes found in the Veteran's left knee were not expected to be a natural progression of his service-connected right knee disability and, as a result, not service related. See April 2019 C&P examination. The Board finds that a remand is necessary to obtain a VA examination and opinion to determine the nature and etiology of the Veteran's claimed left knee disability, to include as whether it is secondary to his service-connected disabilities. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. After completion of the above development, obtain an addendum opinion from an appropriately qualified examiner to determine the nature and etiology of any diagnosed respiratory disorders, to include asthma. It is up to the discretion of the examiner as to whether an in-person examination is necessary. The examiner should provide the following opinions: (a.) The examiner should identify, with specificity, all current diagnoses pertinent to the Veteran's claimed respiratory disorder. By "current disability" the Board means: (1) any disability diagnosed by the examiner; (2) any relevant diagnosis during the appeal period (beginning in July 2013); and/or (3) symptoms resulting in functional impairment but not otherwise warranting a specific diagnosis. The examiner should specifically address the Veteran's September 2003 diagnosis of mild asthma and his May 2006 asthma diagnosis. See November 2017 CAPRI. If the examiner determines that any prior diagnoses are incorrect, he or she should provide an explanation for why the diagnosis was in error. (b.) For any identified diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current respiratory disorder is etiologically related to the Veteran's service, to include as due to exposure to hazardous gasses, to include Freon and secondhand smoke, during service. The Board notes that the Veteran's STRs show a record of occupational exposure to ionizing radiation dated from December 1983 to February 1989 showing that the Veteran was exposed to gamma and x-ray and neutron multiple times. The final recorded entry, dated in February 1989, indicates that the Veteran's total lifetime exposure to ionizing radiation was 0.199 roentgen equivalent man (REM). In addition, an addendum to the record of occupational exposure to ionizing radiation, dated in February 1986, shows that the Veteran was exposed to gasses, which had been vented into the Engine room, rather than all over the submarine, for approximately 20 minutes. Radiation levels were less than or equal to 0.1 milliroentgens per hour, and airborne gaseous activity, representing whole body exposure, was 2.6 times the limit for continuous exposure to short-lived airborne gasses at the peak during the incident. Please explain why or why not in answering each question. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. After completion of the development in #1, schedule the Veteran for a VA examination with an appropriately qualified examiner to determine the nature and etiology of his claimed left knee disability. The examiner should provide the following opinions: (a.) The examiner should identify all current diagnoses pertinent to the Veteran's claimed left knee disability. (b.) For each diagnosed left knee disability, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disability is etiologically related to the Veteran's active service, to include as due to falling down a ladder during a drill. Please explain why or why not. (c.) For each diagnosed left knee disability, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the left knee disability was (i) caused or (ii) aggravated by the Veteran's service-connected right knee and/or lumbar spine disabilities. Please explain why or why not. If aggravation is found, the examiner should identify, to the extent possible, the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the Veteran's service-connected right knee and/or lumbar spine disabilities. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. The examiner should specifically consider the April 2019 VA examination report and any conflicting medical evidence of record, to include the records identified in the body of this Remand. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.