Veteranclaims’s Blog

July 2, 2018

Single Judge Application; Board fails to address each diagnosed disability—RLD, asthma, and COPD— separately; failure to address potentially favorable material evidence;

Excerpt from decision below:

“However, the Court agrees with Mr. Keys that the Board’s reasons or bases are inadequate in several regards. First, the Board’s discussion of whether he has a current lung disability is inadequate because it fails to address each diagnosed disability—RLD, asthma, and COPD— separately. Although the Board adjudicated Mr. Keys’s claim under the umbrella of chronic lung
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disease and found that he has a current chronic lung disability, the competent medical evidence of record supports three different lung-related diagnoses with potentially distinct causes and symptoms. R. at 5. In its current-disability determination, the Board seemingly found that the veteran has an asthma disability, id., but then bases its denial of service connection for asthma on the lack of an asthma diagnosis, R. at 6. The Board’s paradoxical statements fail to illuminate the precise basis for its determination that he was not entitled to service connection for asthma and frustrate judicial review. See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 52.
The Board’s asthma discussion is further inadequate because it failed to address potentially favorable material evidence. In discussing Mr. Keys’s asthma disability and making all service-connection-related determinations, the Board was not free to ignore the June 2013 medical opinion that diagnosed extrinsic asthma, VA treatment notes that assessed asthma, and the veteran’s competent reporting of previous asthma diagnoses. See Thompson, 14 Vet.App. at 188. The Board’s failure to discuss this potentially favorable material evidence thus rendered inadequate its reasons or bases for denying service connection for a chronic lung disorder. See Caluza, 7 Vet.App. at 506.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0327
WAYNE M. KEYS, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Veteran Wayne M. Keys appeals through counsel a September 29, 2016, Board of Veterans’ Appeals (Board) decision denying entitlement to service connection for chronic lung disorder. Record (R.) at 2-9. For the reasons that follow, the Court will set aside the Board decision and remand for further development, as necessary, and readjudication consistent with this decision.
I. FACTS
Mr. Keys served on active duty in the U.S. Navy from April 1970 to January 1972, including service onboard an aircraft carrier as a gunman. R. at 1427. While in service, he was treated for chronic sinusitis and worked in a “poorly ventilated space.” R. at 23-25.
In October 2001, Mr. Keys filed a claim for respiratory asthma and bronchitis. R. at 2095-2110. In April 2004, the regional office (RO) granted service connection for restrictive lung disease (RLD) due to exposure to asbestos. R. at 1983-86. In October 2006, VA proposed severing service connection based on clear and unmistakable error because the likelihood of exposure to asbestos was “minimal” and medical evidence was inconsistent with asbestos-related symptoms.
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R. at 177-87. In October 2008, the RO severed service connection effective February 2009. R. at 1261-64.
In April 2010, Mr. Keys submitted a new claim for a “lung condition.” R. at 1756. The next month, the RO denied the claim, R. at 1699-1708, and the veteran filed a timely Notice of Disagreement, R. at 1684-88. In August 2010, Mr. Keys submitted a statement alleging that, while in service, he was treated for episodes of upper respiratory and sinus infections and his respiratory condition was related to in-service exposure to chemicals and cleaning ventilation and exhaust systems. Id.
In July 2012, an examiner diagnosed RLD and opined that it was secondary to obesity and an enlarged lymph node in the veteran’s lungs. R. at 1610. An x-ray examination revealed no gross pneumothorax and no focus of acute consolidation and a computed tomography (CT) scan showed a “dramatic progression of severe matted and bulky lymphadenopathy.” R. at 1622. The examiner opined that, because asthma is a chronic obstructive disease, and both the July 2002 and August 2006 pulmonary function tests (PFTs) show a restrictive pattern, Mr. Keys did not meet the requirements for asthma. R. at 1625. The examiner also opined that the veteran does not have a respiratory condition related to inhalation of dust, sand, paint chips, or paint because he did not have radiologic evidence consistent with an inhalation-related disorder. Id. That month, the RO denied service connection for a lung condition in a Statement of the Case, R. at 1596-1607, and Mr. Keys timely perfected his appeal to the Board, R. at 1540.
In June 2013, a VA treatment note indicated a history of smoking and bronchial asthma, with use of an albuterol inhaler, treatment for lymphoma, and clear lungs. R. at 1521-22. The same month, a private examination noted no rales or wheezing; performed cardiopulmonary testing that showed abnormal breathing efficiency and pulmonary limitation; and diagnosed extrinsic asthma with status asthmaticus, shortness of breath, and allergic rhinitis due to pollen. R. at 1523-31. The following month, Mr. Keys submitted a statement challenging the qualification of the medical examiners and alleging that his current condition is related to his workplace environment during his service. R. at 5120. In December 2014, the Board remanded the claim to obtain a medical opinion addressing whether the veteran has bronchial asthma and whether it is at least as likely as not that any current lung disorder is causally or etiologically relate to service, including exposure to environmental contaminants. R. at 1506-10.
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In March 2015, an examiner reviewed the conflicting medical evidence and provided a supplemental opinion. R. at 101-03. The examiner opined that, even with consideration of the June 2013 bronchial asthma diagnosis, Mr. Keys does not have asthma because the diagnosis was based on subjective complaint rather than objective evidence and the contemporaneous PFTs were consistent with RLD, not asthma. Id. The examiner further opined that the veteran has RLD caused by “increased fat deposition on the chest wall,” which “restricts the chest wall excursions during [the] breathing process” and did not have its onset during service, including as due to exposure to environmental contaminants. Id. The examiner also diagnosed COPD based on the October 2012 CT scan, which revealed minimal emphysema, and opined that it was due to Mr. Keys’s “extensive history of chronic smoking.” Id.
In September 2016, the Board issued its decision on appeal denying service connection for a chronic lung disorder. R. at 2-8. The Board found that all the examinations were adequate for evaluation purposes and that “there is no contradicting medical evidence of record.” R. at 7. The Board determined that Mr. Keys has current lung disorder because of asthma, RLD, and COPD diagnoses. R. at 5. However, the Board found that the evidence weighs against the claim because “VA examinations and treatment records show no diagnosis of asthma” and “no nexus between the currently-diagnosed COPD and any event or illness in service.” R. at 5-6. This timely appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Keys’s appeal is timely and the Court has jurisdiction to review the September 2016 Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Court reviews the Board’s service-connection and adequacy of medical opinion determinations as findings of fact subject to the “clearly erroneous” standard of review. D’Aries v. Peake, 22 Vet.App. 97, 104 (2008). “A factual finding ‘is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
With any finding on a material issue of fact and law presented on the record, the Board must support its factual determinations with an adequate statement of reasons or bases that enables
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the claimant to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. at 57. To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
III. ANALYSIS
Mr. Keys argues that the June 2012 and March 2015 medical opinions are inadequate because the examiners provided inadequate rationales and improperly ignored competent medical reports and that the Board’s reasons or bases are inadequate in several respects. The Secretary concedes that the March 2015 opinion is inadequate as to causation of COPD, but contends that the opinions and the Board’s reasons or bases are otherwise adequate.
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013). The Board must also address all potentially favorable evidence. See Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam order).
When VA seeks a medical opinion, the Secretary must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA medical opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). See also Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must rest on correct facts and reasoned medical judgment so as [to] inform the Board on a medical question and facilitate the Board’s consideration and weighing of the report against any contrary reports.”); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”).
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The Court agrees with the Secretary that a new medical opinion is warranted to address COPD. See Secretary’s Br. at 8. The March 2015 examiner, noting radiologic evidence that showed minimal emphysema, diagnosed COPD for the first time of record and concluded that it was due to the veteran’s “extensive history of chronic smoking.” R. at 102. In rendering this conclusion, however, the examiner failed to provide any rationale and also failed to address the relevant service connection question of whether COPD is at least as likely as not related to Mr. Key’s in-service exposure to environmental contaminants. See Romanowsky, 26 Vet.App. at 293; Stefl, 21 Vet.App. at 123. The March 2015 medical opinion fails to sufficiently provide the Board with the examiner’s medical judgment necessary to adjudicate the matter. See Monzingo, 26 Vet.App. at 105. Therefore, remand is warranted for the Board to obtain an adequate medical opinion addressing COPD. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the record is inadequate).
As to RLD, Mr. Keys’s challenges to the adequacy of June 2012 and March 2015 medical opinions, because the examiners provided a conclusory opinion, are unpersuasive. The June 2012 examiner diagnosed RLD secondary to enlarged lung lymph nodes due to large B cell lymphoma and obesity. R. at 1610, 1625. The examiner also determined that, because the radiologic evidence does not show classic alveolar destruction, honeycombing, glass opacities, dense fibrosis, or chronic interstitial inflammation, the veteran’s RLD is not associated with inhalation of or exposure to environmental contaminants, including dust, sand, or paint. R. at 1626. In March 2015, another VA examiner diagnosed RLD caused by progressive weight gain resulting in increased chest wall fat deposits and abdomen obesity, which restricts lung volumes and decreases chest wall movement and excursions during the breathing process. R. at 102. The examiner further opined that RLD did not have its onset during service and was not due to exposure to environmental contaminants. Id. The Court concludes that, because the opinions sufficiently inform the Board of the examiners’ judgments as to whether Mr. Keys’s current RLD is at least as likely related to service, with adequate rationale, the medical opinions are adequate as to RLD. See Monzingo, 26 Vet.App. at 105; Acevedo, 25 Vet.App. at 293.
However, the Court agrees with Mr. Keys that the Board’s reasons or bases are inadequate in several regards. First, the Board’s discussion of whether he has a current lung disability is inadequate because it fails to address each diagnosed disability—RLD, asthma, and COPD— separately. Although the Board adjudicated Mr. Keys’s claim under the umbrella of chronic lung
6
disease and found that he has a current chronic lung disability, the competent medical evidence of record supports three different lung-related diagnoses with potentially distinct causes and symptoms. R. at 5. In its current-disability determination, the Board seemingly found that the veteran has an asthma disability, id., but then bases its denial of service connection for asthma on the lack of an asthma diagnosis, R. at 6. The Board’s paradoxical statements fail to illuminate the precise basis for its determination that he was not entitled to service connection for asthma and frustrate judicial review. See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 52.
The Board’s asthma discussion is further inadequate because it failed to address potentially favorable material evidence. In discussing Mr. Keys’s asthma disability and making all service-connection-related determinations, the Board was not free to ignore the June 2013 medical opinion that diagnosed extrinsic asthma, VA treatment notes that assessed asthma, and the veteran’s competent reporting of previous asthma diagnoses. See Thompson, 14 Vet.App. at 188. The Board’s failure to discuss this potentially favorable material evidence thus rendered inadequate its reasons or bases for denying service connection for a chronic lung disorder. See Caluza, 7 Vet.App. at 506. Accordingly, the Court concludes that remand is warranted. See Tucker, 11 Vet.App. at 374 (holding that remand is the appropriate remedy where the Board failed to provide an adequate reasons or bases for its determinations).
To the extent that the Secretary urges the Court to bifurcate the chronic lung disorder claim on appeal, the Board is free to do so on remand. See Locklear v. Shinseki, 24 Vet.App. 311, 315 (2011) (“Bifurcation of a claim generally is within the Secretary’s discretion.”); Tyrues v. Shinseki, 732 F.3d 1351 (Fed. Cir. 2013), aff’g 26 Vet.App. 31 (2012) (holding that it is permissible for the Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection).
On remand, the veteran is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted, see Kay v. Principi, 16 Vet.App. 529, 534 (2002). “A remand is meant to entail a critical examination of the justification for the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed expeditiously, in accordance with 38 U.S.C. § 7112.
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IV. CONCLUSION
Upon consideration of the foregoing, the September 29, 2016, Board decision that denied entitlement to service connection for a chronic lung disease is SET ASIDE and those matters are REMANDED for further development, as necessary, and readjudication consistent with this decision.
DATED: June 29, 2018
Copies to:
Meghan Gentile, Esq.
VA General Counsel (027)

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