Citation Nr: 21040128 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 10-00 264 DATE: July 2, 2021 ORDER Entitlement to service connection for emphysema and chronic obstructive pulmonary disease (COPD), as due to asbestos exposure, is granted. Entitlement to service connection for hypertension is granted. Entitlement to service connection for a stroke, secondary to service-connected hypertension, on a causation basis, is granted. REMANDED Entitlement to service connection for esophageal cancer, including as due to Agent Orange exposure, is remanded. FINDINGS OF FACT 1. The Veteran's pulmonary disability diagnosed as emphysema and COPD was at least as likely as not related to in-service asbestos exposure. 2. The evidence is at least evenly balanced as to whether the Veteran's hypertension began in service. 3. The evidence is at least evenly balanced as to whether the Veteran's strokes were caused by his service-connected hypertension. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the appellant, the criteria for service connection for a emphysema and COPD are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. With reasonable doubt resolved in favor of the appellant, the criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved favor of the appellant, the criteria for service connection for strokes, secondary to service-connected hypertension, on a causation basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REFERRED The claims for entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU) and service connection for peripheral vascular disease (PVD) have not been adjudicated by the Agency of Original Jurisdiction (AOJ). As a June 2020 Joint Motion for Partial Remand (Joint Motion) indicated, a claim for TDIU submitted in September 2011 prior to the Veteran's death was never adjudicated. The Joint Motion recognized that the Board lacked jurisdiction over the issue and instead directed it to refer the TDIU claim for adjudication by the RO in the first instance. Though the claims file shows a notice was sent regarding a TDIU claim in January 2021, the claim has not been adjudicated. Similarly, the June 2020 Joint Motion also instructed the Board to address whether the Veteran's December 2007 Application for Disability Compensation (VA Form 21-526) for service connection for "artery disease" also included a claim of entitlement to service connection for PVD within its scope. See 38 C.F.R. § 20.904(b) (referral of claims reasonably raised by the record) (formerly 38 C.F.R. § 19.9(b)). In December 2020, the Board determined in the present case, in accordance with 38 C.F.R. § 3.155(a), a separate issue of entitlement to service connection for PVD was raised by the record in the December 2007 claim. However, this was never adjudicated by the AOJ. Therefore, this issue is referred to the AOJ for appropriate action consistent with the instructions of the June 2020 Joint Motion. Therefore, the Board does not have jurisdiction over the claims of TDIU and for service connection for PVD, and they are referred to the AOJ for appropriate action. See 38 C.F.R. § 20.904(b) (continuing to provide for referral of unadjudicated claims). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1964 to December 1968. He died in September 2011 and his widow was substituted by VA as the appellant in the present appeal in May 2018. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for emphysema, high blood pressure, stroke, diabetes, coronary artery disease, and esophagus cancer. The Veteran disagreed with decision in May 2009. In December 2009, the RO denied service connection for emphysema as due to asbestos exposure in service. In accordance with Nehmer v. United States Department of Veterans Affairs, the RO re-reviewed and granted the claim for service connection for coronary artery disease in August 2011. See 38 C.F.R. § 3.816. The Veteran died in September 2011, and in April 2012 and December 2012, the RO denied service connection for cause of death or Dependency and Indemnity Compensation (DIC) benefits to the surviving spouse, the appellant in the present appeal. However, in September 2015, cause of death was granted, as the RO determined coronary artery disease cardiovascular symptoms and respiratory symptoms could not clearly be separated as the functions of the cardiovascular and respiratory systems are significantly intertwined, and recognized evidence that supported the assertion that the Veteran's coronary artery disease played more than a mere casual role in the production of death. In a May 2018 letter, the AOJ acknowledged the appellant as a valid substitute claimant and informed her that the RO would continue to process the claims on appeal. In a July 2019 decision, the Board denied the appellant's claims of entitlement to service connection for diabetes mellitus, cancer of the esophagus, hypertension, stroke, and emphysema. The appellant appealed the denial for claims of cancer of the esophagus, hypertension, stroke, and emphysema to the U.S. Court of Appeals for Veterans Claims (Court). In a Court Order dated in June 2020, pursuant to a June 2020 Joint Motion, the Court vacated the Board's July 2019 decision with respect to these denials. In December 2020, the Board remanded the claims for service connection for emphysema, esophageal cancer, hypertension, and stroke for further development. Regarding the claim for service connection for esophageal cancer, an adequate opinion which was responsive to the December 2020 Board remand was not obtained. Therefore, that claim must be remanded prior to adjudication. Regarding development of all other claims on appeal, the claims are granted in full herein, and any duty to assist error or failure to meet substantial compliance with previous Board remands is moot as there is no prejudice to the appellant. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Service connection may also be established on a secondary basis for a disability that is proximately due to the or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service both on the landmass of Vietnam and on its 12 nautical mile territorial sea. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain listed diseases, including type II diabetes and prostate cancer, are presumptively service connected. 38 C.F.R. § 3.309(e). Alternatively, service connection may be established on a direct basis to presumed herbicide agent exposure. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In this case, the Veteran is presumed to have been exposed to Agent Orange as he served in Vietnam. Service records show in January 1968 he received the Meritorious Unit Commendation Ribbon for outstanding performance of duty in action again Viet Cong insurgent and North Vietnamese Regular Force troops in the Republic of Vietnam from June to August 1967. In July 1967 he was authorized to wear Third Bronze Star on Vietnam Service Medal for his duty on board the U.S.S. Monticello. As discussed previously by the Board in July 2019, the Veteran's service personnel records show he served aboard the U.S.S. Monticello from April 1965 to December 1968. On his December 2007 VA Form 21-526, the Veteran stated that as quartermaster and he would transport the Marines from the ship to Danang. He was responsible for supplying food, ammunition, clothes, and other supplies by boat into port. He also had to travel up a river on patrol, and on many occasions, he had to return fire. In an August 2008 statement, the Veteran wrote sometimes he would spend up to four hours at the floating dock at Headquarters in Danang. A November 1968 service treatment record indicates that the Veteran acknowledged potential exposure to malaria by reason of being in the Vietnam area. Multiple printed articles and histories of the U.S.S. Monticello associated with the claims file support the Veteran's assertions that the ship sent troops to Danang and supplied troops on the ground. A March 2008 PIES Response indicates that the U.S.S. Monticello was in the official waters of Vietnam during the time the Veteran was aboard. Additionally, a May 2011 Nehmer Agent Orange JSRRC Review memorandum associated with the claims file indicates that a declassified document printed in the claims file shows that the U.S.S. Monticello was in Danang on September 7, 1967, which aligns with the dates in the PIES response and with the dates the Veteran was on board the ship, and concludes that the Veteran set foot in Vietnam. The RO also recognized the Veteran's Vietnam service in the December 2009 Statement of the Case. 1. Entitlement to service connection for a pulmonary disability diagnosed as emphysema and chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure, is granted. The Veteran claimed he has emphysema connected to service in his December 2007 application for benefits. Prior to his death, he contended that his emphysema was related to asbestos exposure, as he was stationed on the U.S.S. Monticello (LSD-35) for several years, and the pipes on the ship were wrapped in asbestos-containing materials. In a December 2009 statement, he wrote that his sleeping quarters were down the hall from the engine room, he went to the furnace room at least one time per week in service, and that all the pipes on the ship were wrapped in asbestos-containing material. The benefit of the doubt regarding asbestos exposure is resolved in favor of the appellant's appeal. In December 2009, he also wrote he was not seeking service connection for emphysema as related to Agent Orange, and that it was due to asbestos in service. In an October 2020 brief, the appellant's representative included a theory of causation as related to Agent Orange. In any event, the Board finds service connection for a pulmonary disability including emphysema and COPD is warranted due to exposure to asbestos during active duty for the following reasons. Medical records from the Veteran's active duty do not show respiratory symptoms or diagnoses upon separation in 1968. He was treated during service for bronchitis. In November 2005, a CT scan of the chest revealed emphysematous cystic areas in the bilateral upper lungs. A May 2006 hospital discharge summary listed COPD among discharge diagnoses. A June 2006 CT scan of abdomen and pelvis showed that the lung bases had linear scarring in addition to emphysematous changes, suggestive of COPD. At the April 2010 VA examination, the Veteran reported a history of coughing occurring one or several times daily, wheezing daily, and dyspnea on moderate exertion. A chest x-ray revealed hyperlucent, hyperinflated lungs and flattening of diaphragms compatible with COPD. In April 2019, after the Veteran's death, a VA examiner reviewed the Veteran's claims file and opined that the Veteran's emphysema was not caused by asbestos exposure. The examiner reasoned that literature reveals that the most common cause of emphysema is a long smoking history, and the Veteran's records revealed that he was a smoker. Specifically, the April 2019 VA examiner opined that the Veteran's emphysema was less likely than not due to his period of active duty service (to include any asbestos exposure) on the basis that medical literature lists long smoking history as the most common cause of emphysema, as well as the fact that the Veteran was a smoker; however, as explained in the Joint Motion, VA and the appellant agree that this medical opinion is inadequate because the examiner did not provide any rationale as to why she found that asbestos exposure did not cause, at least in part, the Veteran's disability. In a January 2021 opinion, a VA physician assistant opined that the Veteran's disability was not from service because there was no "diagnosis or complaints of respiratory system" during active duty and the Veteran had a significant tobacco use history for 35 to 40 years. The VA physician assistant wrote there is no medical literature supporting a relationship between COPD or emphysema to Agent Orange or asbestos exposure and that the main cause of COPD in developed countries is tobacco smoking. However, she did not explain how Agent Orange or asbestos may or may not have played a role in the development of his pulmonary disability, as she merely focused on the most well-known risk factor. In a May 2021 brief, the appellant's representative included research showing that emphysema was more common when workers were heavily exposed to asbestos (insulators). The brief contained that various scientific studies have reported a statistically significant incidence of COPD among those exposed to toxic materials such as asbestos and silica, and the representative argued that from being in the Navy, the Veteran was subjected to asbestos as well compounds of Agent Orange. A VA medical professional has not addressed this research linking asbestos exposure to COPD and emphysema. However, further development is unnecessary. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, __ Vet. App. __, No. 19-0352 (June 22, 2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). Evidence of a medical article or treatise may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). In this case, as discussed above, the Veteran is determined to have been exposed to asbestos on active duty. As the medical treatment records reflect, he developed a diagnosed pulmonary disability of COPD and emphysema. There is also evidence of a nexus between his asbestos exposure and his pulmonary disabilities. The Veteran's own previous statements such as in his July 2009 Notice of Disagreement and December 2009 appeal to the Board show that he believed onboard asbestos exposure caused his disability. While the January 2021 VA physician assistant provided a negative opinion, she focused on a single risk factor, and neglected to consider other relevant factors. Therefore, the opinion is not entitled to probative weight. The appellant's representative's brief provided research supporting a link between the Veteran's disability and his recognized exposures to asbestos during military service. This evidence is relevant and probative to the outstanding question regarding a nexus to service, and creates at least plausible causality based on the objective facts of this case. See Sacks, 11 Vet. App. at 317. Therefore, as the probative evidence of record is in relative equipoise, service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board need not consider other theories of entitlement. 2. Entitlement to service connection for hypertension is granted. VA regulations specify that the term hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. As previously established by the Board in the July 2019 decision, there is a current diagnosis of hypertension during the appeal period. A determination in a prior Board remand cannot be disregarded by the Board in its subsequent decision. See Andrews v. McDonough, __ Vet. App. __, No. 19-0352 (June 22, 2021) (finding a determination in a prior Board remand binding on the Board in its subsequent decision); see also Augustine v. Principi, 343 F.3d 1334, 1339 (Fed. Cir. 2003) (the law-of-the-case doctrine applies to a legal issue on a question that has actually been decided in an earlier stage of the same litigation). The evidence below reflects that there is insufficient evidence to warrant a departure from the Board's prior finding in this case with regard to the current disability requirement having been met. At the start of military service, a December 1964 enlistment report of medical examination shows the Veteran's blood pressure was normal at 120 over 66. At separation in December 1968, the Veteran's blood pressure was elevated at 130 over 94. There is no evidence that he was seen for followup readings or that further care was provided. The Veteran stated contends that the elevated blood pressure he experienced in service was an early manifestation of his subsequently diagnosed hypertension. The Medical treatment records in the claims file show the Veteran had a long history of hypertension after service. Social Security Administration (SSA) records show he was diagnosed with hypertension at least as early as 1986 and a February 1989 hospital discharge summary shows he was prescribed medication for hypertension during his admittance. At an April 2010 VA examination, the Veteran was diagnosed with hypertension. Three blood pressure reading results were 140/77 mmHg, 139/88 mmHg, and 144/109 mmHg. The examiner noted continuous medication was required for control of hypertension and the Veteran stated at the time he was on five medications for hypertension. April 2010 VA examiner diagnosed the Veteran as having a history of hypertension, but did not provide an opinion as to probable onset or etiology. In a January 2021 opinion, a VA physician assistant noted that one elevated reading is not diagnostic. She found that service treatment records were "negative for any diagnosis or complaints of hypertension during active duty" and that the separation examination "was silent for any diagnosed chronic condition." Citing to a Mayo Clinic article, she noted the Veteran's medical recognized risk factors included family history, alcohol, tobacco, and race. However, she did not differentiate between causation and correlation with the risk factors, and the likelihood and whether any other factors may have been a possibility. Regarding secondary service connection, she noted that hypertension and coronary artery disease are not medically related. While the January 2021 VA physician pointed out that a single reading is not diagnostic, she did not analyze limitations of the evidence, such as the lack of follow-up readings in service at no fault of the Veteran, which would have been required to provide a diagnosis. Additionally, she did not incorporate the contention that the Veteran had high blood pressure since service in noting a single reading is not diagnostic. The January 2021 VA medical opinion is not afforded probative weight. Establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease. A diagnosis in service is not required. See 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994). In this case, there was evidence of elevated blood pressure readings during service but the military medical professional at the time did not provide the diagnosis or attempt to further evaluate to determine if a diagnosis should be provided. Hypertension is a chronic disease. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(e). For chronic disease shown as such in service, subsequent manifestations of the same chronic disease after service are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Based on the Veteran's statements, an elevated blood pressure reading at the end of service with no normal blood pressure readings at that time, and the remaining evidence, the weight of the probative evidence of record is at least in equipoise that hypertension had its onset during service, even though not diagnosed until many years later. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hypertension is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for a stroke disability, as secondary to service-connected coronary artery disease and hypertension, is granted on a causation basis. A July 2005 medical record shows that the Veteran had a stroke or transient ischemic attack (TIA) in 2002. In May 2006 the Veteran was admitted to the hospital for acute cerebrovascular accident (CVA). In June, he underwent a left carotid endarterectomy for TIAs with total occlusion of the right common carotid artery and 95 percent stenosis involving the left internal carotid artery. Prior to his death, the Veteran was service connected for coronary artery disease from December 20, 2007. In a May 2021 brief, the appellant's representative wrote the effects that CAD has on the heart and brain is well documented, such as when pertaining to strokes, common heart disorders can increase risk for stroke. For example, coronary artery disease increases risk for stroke, because plaque builds up in the arteries and blocks the flow of oxygen-rich blood to the brain. At the April 2010 VA examination, the Veteran stated while he was in the Reserves in the 1960s, he went in for a routine visit to the doctor and was told he had high blood pressure and was put on medication. The VA examiner diagnosed hypertension (based on three readings) and stated that the 2006 stroke/TIA was related to the hypertension. In a January 2021 opinion report, a VA physician assistant did not attribute the Veteran's strokes directly to service including as due to Agent Orange exposure, but did note an association between stroke and coronary artery disease. While she noted stroke and coronary artery disease are not medically related, she also wrote that coronary artery disease is a known risk factor, even if not causative. Both the April 2010 VA examiner and the January 2021 VA physician assistant attributed the Veteran's strokes to hypertension, for which the Board has granted service connection. Therefore, service connection for strokes is warranted as due to hypertension, on a causation basis. The Board need not consider other theories of entitlement. REASONS FOR REMAND 1. Entitlement to service connection for esophageal cancer, including as due to Agent Orange exposure, is remanded. The Board's July 2019 decision acknowledged that the Veteran had a diagnosis of squamous cell carcinoma of the esophagus and found that the evidence was at least in equipoise as to whether the Veteran set foot in Vietnam; as such, it is presumed that he was exposed to herbicides. In the December 2020 remand, the Board requested an opinion as to the likelihood that the Veteran's squamous cell carcinoma of the esophagus began in service, was caused by service, or was otherwise related to service, to include caused or aggravated by his service-connected coronary artery disease or caused by in-service exposure to an herbicide agent like Agent Orange, regardless of the fact that esophageal cancer is not presumed to be associated with herbicide exposure. In January 2021, a VA physician assistant provided an opinion. She wrote a negative opinion for direct service connection because the Veteran's service treatment records were negative for diagnosis or complaints of esophageal cancer during active duty service and the separation examination was silent for "any diagnosed chronic condition," while the 2011 death certificate noted a history of esophageal cancer for six years. Including a web hyperlink to Mayo Clinic, she listed factors that cause irritation in the cells of the esophagus and increase risk of esophageal cancer. Following listing the risk factors, she concluded "no nexus to service or herbicide exposure established." She also included negative opinions on a relationship between the Veteran's esophageal cancer and his service-connected coronary artery disease, writing there was no medical relationship between the two as esophageal cancer is a separate entity entirely from coronary artery disease, and there was also no credible medical evidence to support aggravation of esophageal cancer beyond its natural progression and coronary artery disease does not affect the lining of the esophagus. Despite the conclusion that there is "no nexus to...herbicide exposure," the VA physician assistant did not discuss the theory that the Veteran's exposure to Agent Orange in service caused his cancer, or address Agent Orange in her rationale. The claim must be remanded for an adequate opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). In a May 2021 brief, the appellant's representative wrote there are mixed studies regarding whether there is an association between asbestos and esophagus cancer. Though this theory has not been previously raised, as the claim is being remanded, the VA opinion should also include a response to this contention. The matters are REMANDED for the following action: Obtain an opinion from a VA physician that addresses the etiology of the Veteran's esophagus cancer. Following review of the claims file, the physician should opine on the likelihood of a relationship between the Veteran's esophagus cancer and service, to include as a result of exposure to asbestos and exposure to herbicide agents such as Agent Orange. In addressing these questions, the physician is advised that the fact that a given disability is not one for which service connection can be presumptively awarded cannot be used as the sole basis for a negative opinion. A complete rationale for each opinion must be provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.