Citation Nr: 22016152 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-13 015 DATE: March 21, 2022 REMANDED Entitlement to service connection for a respiratory condition, to include asbestosis, asthma, and chronic obstructive pulmonary disorder (COPD), as secondary in-service exposure to asbestos is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1972 to September 1980. The Board of Veterans' Appeals (Board) notes that the Veteran's claim herein is based on the Veteran's previous claim for service connection for asbestosis, to include secondary to asbestos exposure during service. That claim was previously denied by the Board in a February 2019 decision, which denied the claim based on the narrow finding that the Veteran did not have a current diagnosis for asbestosis. The denial was subsequently appealed by the Veteran to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand the February 2019 decision as to the issue of service connection for asbestosis. A close review of the March 2020 Court JMR reveals that the Court's vacatur was ostensibly based on the Board's violation of Clemons v. Shinseki, 23 Vet. App. 1 (2009), in narrowly interpretating and deciding the Veteran's claim for asbestosis. Here, the JMR noted that the Board errored in confining the Veteran's claim to only an analysis of asbestosis, versus a broader claim for all respiratory disabilities. To this end, the JMR noted that during the claims period, the medical evidence showed that the Veteran was given diagnoses for asthma, COPD, and pleural plaque. The JMR remanded the Veteran's claim for asbestosis, with explicit directive that the Board broaden the scope of such claim to encompass other identified respiratory disabilities. In a November 2020 Board decision, subsequent to the JMR, the Board, in an attempt to adhere to the Court's Order and JMR instructions, recharacterized/split the Veteran's claim for service connection for asbestosis to three separate disabilities, which were noted by the JMR to include (1) service connection for pleural plaque, (2) service connection for COPD, and (3) service connection for asthma. In that November 2020 decision, the Board granted service connection for pleural plaque, and remanded the claims for COPD and asthma for further development. The Board, finds, however, that the recharacterization/split of the Veteran's claim to be not in the spirit of the Parties' JMR. Specifically, the Board notes that the rationale of the JMR was based on a theory of expansive consideration of the Veteran's claim which not only include those enumerated by the Veteran by name in his claim, but also those that can be subsumed by the development of the evidence and the character of the symptoms. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, by splitting the Veteran's claim into the three distinct claims for the separately diagnosed respiratory disabilities enumerated by the JMR, the Board again commits such error by restricting its development, and in turn the Veteran's claim, to only those three conditions. The Board notes that as a result of such recharacterization, the Board essentially eliminated the Veteran's initial claim for asbestosis; the Board finds that such is against what was contemplated by the Court's JMR, and Clemons. Id. Here, as the Veteran has already been granted service connection for pleural plaque, the Board will not disturb such determination. However, as the Veteran's currently separate claims for COPD and asthma remains pending, the Board shall recharacterize these claims into a single encompassing claim, to include all respiratory disabilities, such as the initially claimed asbestosis. 1. Entitlement to service connection for a respiratory condition as secondary in-service exposure to asbestos is remanded. In December 2021, the Veteran was provided a VA examination in December 2021 to assess the nature and etiology of the claimed respiratory disability. The Board finds that the December 2021 VA examination to be inadequate, as the etiological opinion against the claim fails to provide explicit consideration of relevant evidence of record, to include various aspects of the Veteran's service treatment records (STRs). The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, remand is required for the VA to fulfills its duty to the Veteran. A close review of the December 2021 VA examination reveals that the report is silent on demonstrating consideration of the Veteran's STRs, to specifically include the Veteran's separation examination. Here, in a February 2022 Appellant Brief from the Veteran's representative, it was raised that while the VA examiner concluded against the Veteran's claim, such findings failed to speak to the fact that the Veteran's separation examination noted both sinusitis and reflux disease upon leaving service. The Veteran, through his representative, noted that neither condition was noted upon entry, and that a lack of discussion of these conditions, which clearly arose during service, renders the December 2021 inadequate; the Board agrees. The Board finds that while the VA examination and opinion provided a fairly comprehensive opinion regarding both secondary aggravation and causation to other service-connected disabilities; with the direct service connection portion of the opinion ostensibly relied on the fact that no respiratory disabilities were noted inservice or upon separation, and that asbestos exposure would lead to different types of lung/respiratory restriction, and not obstruction like COPD. However, the Board notes that nowhere in the rationale provided does the examiner note that the Veteran's separation examination documented sinusitis upon exiting service. The Board finds that sinusitis is also a respiratory condition, and that lack of discussion of such critical diagnosis, that clearly arose during service, renders the December 2021 opinion inadequate. Indeed, in the examiner's rationale, clearly notes that asthma, also an inflammation of the airways, is often associated with allergies. As such, an addendum opinion is required to address this issue. The Board also finds that, separately, in closely reviewing the December 2021 VA examination, the VA examiner seems to indicate that the Veteran's asthma may have preexisted his active service. Here, as asthma was not noted upon entry into active service, to find that a condition preexisted service by an examiner. such must be found based on clear and unmistakable evidence. The December 2021 examiner's statement regarding the Veteran's 'childhood history of allergies and asthma" is insufficient and requires an addendum opinion for clarification. The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed respiratory disabilities, to include asbestosis, asthma, and COPD. The examiner must review the claims file and must note that review in the report. The examiner is asked to offer the following opinions: (a) Is it clear and unmistakable that the Veteran entered service with any preexisting respiratory disability? Please cite to the evidence of record used to make that finding. (b) If a respiratory disability clearly and unmistakably preexisted entrance to service, is it clear and unmistakable that any preexisting respiratory disability was not aggravated (not permanently worsened beyond the natural progression of the disorder) during service? The examiner must opine as to the baseline symptoms and severity of any preexisting respiratory disability upon entering service, and whether any respiratory disability increased in severity during active service, and if so, whether any increase in severity was clearly and unmistakably not more than the natural progress of the disability. The examiner must speak to both in service complaints of increased pain, and also lay statements from the Veteran. (c) If the examiner find that a respiratory disability did not clearly and unmistakably preexist entrance to service, is it at least as likely as not (50 percent or greater probability) that a respiratory disability is related to service or any incident of active service? The examiner must speak to the fact that the Veteran's separation examination noted sinusitis upon exit, which was not present upon entry. The examiner must also explicitly address the articles and assertions submitted by the Veteran with regards to the effects of reflux disease and respiratory disabilities. (d) Reconcile the findings and opinions with previous examination findings and opinions. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.