Citation Nr: 22004792 Decision Date: 01/28/22 Archive Date: 01/28/22 DOCKET NO. 14-10 127 DATE: January 28, 2022 REMANDED Entitlement to service connection for liver cyst, to include as due to asbestos exposure and secondary to service-connected COPD, is remanded. Entitlement to service connection for pancreatic cysts, to include as due to asbestos exposure and secondary to service-connected COPD, is remanded. Entitlement to service connection for renal cysts, to include as due to asbestos exposure and secondary to service-connected COPD, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1960 until October 1963. In March 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38C.F.R. §20.902 (c). 38U.S.C. §7107 (a)(2). This appeal has been before the Board on multiple occasions, most recently in November 2021. Unfortunately, there has not been compliance with the Board's prior remand directives, and another remand is now required. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for liver cyst, to include as due to asbestos exposure and secondary to service-connected COPD, is remanded. Entitlement to service connection for pancreatic cysts, to include as due to asbestos exposure and secondary to service-connected COPD, is remanded. Entitlement to service connection for renal cysts, to include as due to asbestos exposure and secondary to service-connected COPD, is remanded. The claims must be remanded again because the December 2021 VA opinions are inadequate. Despite specific instructions as to the correct legal definition of aggravation for this matter being any increase in disability, the opinion provider used the incorrect definition of beyond the natural progression of the disease. A medical opinion that applies the incorrect legal standard is inadequate and nonprobative. El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013). Additionally, the Veteran's representative submitted additional medical literature in January 2022 that was not considered when the December 2021 addendum opinion was made. Therefore, the matter must also be remanded obtain a medical opinion that considers all evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The matter must once again be returned to the agency of original jurisdiction to obtain addendum medical opinions that defines aggravation as any increase in disability and is otherwise adequate for adjudication of the claim. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician other than the July 2021 and September 2021 opinion provider on the likely etiology of the liver, pancreas, and kidney cyst conditions, to include whether due to asbestos exposure or secondary to his service-connected COPD. The opinion provider should be provided a copy of all pertinent documents, including the studies submitted by the Veteran's representative in April and June 2021 and January 2022. The examiner must answer the following: (a) For each disability, is it at least as likely as not that the (i) liver cyst, (ii) pancreatic cyst, and (iii) kidney cyst is due to the Veteran's conceded exposure to asbestos in Naval service? (b) For each disability, is it at least as likely as not that the (i) liver cyst, (ii) pancreatic cyst, and (iii) kidney cyst is caused by his service-connected COPD? (c) For each disability, is it at least as likely as not that the (i) liver cyst, (ii) pancreatic cyst, (iii) kidney cyst is aggravated by (any increase in disability) his service-connected COPD? The clinician must consider, and discuss the following: (i) the March 2016 VA medical opinion that the medical literature in peer reviewed, evidence based periodical journals does not support the notion that liver, renal, or pancreatic cysts are caused by asbestos exposure; (ii) the December 2021 VA medical opinions that state that asbestos has been shown to lead to non-pulmonary (CKD, prostate cancer) diseases due to the disruption of body systems causing inflammatory and immunologic damage from the asbestos exposure and that asbestos exposure is the most likely factor, and: (iii) the research articles submitted by the Veteran's representative in January 2022. If the examiner does not have access to the articles cited above, the examiner MUST tell the AOJ that those records are necessary for review. Any opinion that applies a legal standard for aggravation other than any increase in disability will be inadequate and further delay adjudication of the claim. If the opinion provider determines that a requested opinion cannot be made without resort to speculation, they must state why. Specifically, they must state whether the inability to provide an opinion is due to specific medical or other scientific studies that have concluded the condition is not proximately due to or aggravated by COPD or if the insufficient support is due to a lack of studies in the subject area. 2. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin 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.