Veteranclaims’s Blog

August 22, 2019

Single Judge Application; asbestos exposure; There is no requirement of “objective evidence” of asbestos exposure; VA must obtain ship’s history or ship’s logs or attempted to request documents to confirm the presence of asbestos on the ship;

Filed under: Uncategorized — veteranclaims @ 11:29 pm

Excerpt from decision below:

“As to the first requirement, the RO conceded asbestos exposure,14 but the Board found “no objective evidence the [v]eteran was exposed to asbestos in service.”15 There is no requirement of “objective evidence” of asbestos exposure. Rather, service-connection claims are to be decided based on “all pertinent medical and lay evidence.”16 The Board made no negative credibility determination of Mr. Haas’s statements that he had been assigned to paint asbestos-covered pipes, as well as scrape and clean them, as part of his duties.17 Furthermore, there is no indication in the record that VA sought ship’s history or ship’s logs or attempted to request documents to confirm the presence of asbestos on the U.S.S. Helena during the period of Mr. Haas’s service.18 If Mr. Haas’s exposure to asbestos is relevant on remand, such additional development would be required to fulfill the duty to assist.A.The Board clearly erred in failing to discussor obtain independent medical evidence to evaluate the medical evidence submitted by Mr. Haas.

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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-0730

RICHARD A.HAAS,APPELLANT,

V.

ROBERT L.WILKIE,SECRETARY OF VETERANS AFFAIRS,APPELLEE.

Before DAVIS, Chief Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

DAVIS, Chief Judge: U.S. Navy veteran Richard A. Haas served honorably from April 1962 to March 1965. He asserts that his duties aboard the U.S.S. Helena exposed him to asbestos. In July 2013 Mr. Haas filed a claim for “Lung Condition/Chronic COPD/Asbestosis.”1Mr. Haas now appeals a December 1, 2017, decision of the Board of Veterans’ Appeals that denied service connection for “a lung condition, to include asbestosis2 and chronic obstructive pulmonary disease3(COPD).”4 Because the Board failed to ensure that VA fulfilled its duty to assist, relied on an inadequate VA examination report, and provided an inadequate statement of reasons or bases, the Court will set aside the December 2017 Board decision and remand the claim for a lung condition for further development and readjudication consistent with this decision. 1Record (R.) at 6065.2″Asbestosis” is “a form of pneumoconiosis (silicatosis) caused by inhaling fibers of asbestos, marked by interstitial fibrosis of the lung varying in form from minor involvement of the basal areas to extensive scarring; it is associated with mesothelioma and bronchogenic carcinoma.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY161-62 (32d ed. 2012) [hereinafter “DORLAND’S”].3″Chronic obstructive pulmonary disease” is “any disorder characterized by persistent or recurring obstruction of bronchial air flow, such as chronic bronchitis, asthma, or pulmonary emphysema.” DORLAND’Sat 530.4R. at 2.2I.

ANALYSIS

Mr. Haas argues that the Board erred in multiple respects. He contends that the Board erred in finding that VA fulfilled the duty to assist because1) the Board failed to obtain a medical opinion to evaluate radiographs of computed tomography (CT) scans that he submitted with his formal appeal,5and 2) in a September 2014 VA disability benefits questionnaire (DBQ)the examiner failed to provide a reasoned medical explanation to support the conclusions. Finally, he argues that the Board provided an inadequate statement of reasons and bases for finding his lay statements regarding the history of his symptoms not credible.The Court finds merit in these arguments. Whether a medical opinion is adequate is generally a finding of fact that the Court reviews under the “clearly erroneous”standard of review,6 as is the Board’s conclusion that the duty to assist has been met.7 A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.”8 The Board must support its determinations with an adequate statement of reasons or bases that enables a claimant to understand the precise basis for its decision and facilitates review in this Court.9 The statement of reasons or bases must explain the Board’s reasons for discounting favorableevidence,10 discuss all issues raised by the claimant or the evidence of record,11 and discuss all provisions of law and regulation where they are made “potentially applicable through the assertions and issues raised in the record.”12″Service connection . .. may be granted for a disability related to asbestos exposure during military service if evidence demonstrates that the veteran was actually exposed in service and that 5 In a related matter, he contends that the Board erred in failing to remand the case to the regional office (RO) to obtain a Supplemental Statement of the Case after VA received his CT scans. The Court need not reach this issue.6SeeD’Aries v. Peake, 22 Vet.App. 97, 104 (2008).7Nolen v. Gober, 14 Vet.App. 183, 184 (2000).8 United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbertv. Derwinski, 1 Vet.App. 49,52(1990).938 U.S.C. § 7104(d)(1); Gilbert1 Vet.App. at 57.10 Thompson v. Gober, 14 Vet.App. 187, 188 (2000).11Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009).12 Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).3a disease usually associated with exposure resulted.”13 As to the first requirement, the RO conceded asbestos exposure,14 but the Board found “no objective evidence the [v]eteran was exposed to asbestos in service.”15 There is no requirement of “objective evidence” of asbestos exposure. Rather, service-connection claims are to be decided based on “all pertinent medical and lay evidence.”16 The Board made no negative credibility determination of Mr. Haas’s statements that he had been assigned to paint asbestos-covered pipes, as well as scrape and clean them, as part of his duties.17 Furthermore, there is no indication in the record that VA sought ship’s history or ship’s logs or attempted to request documents to confirm the presence of asbestos on the U.S.S. Helena during the period of Mr. Haas’s service.18 If Mr. Haas’s exposure to asbestos is relevant on remand, such additional development would be required to fulfill the duty to assist.A.The Board clearly erred in failing to discuss or obtain independent medical evidence to evaluate the medical evidence submitted by Mr. Haas.The September 2014 VA examination report diagnosed Mr. Haas with COPD, which the examiner stated was less likely than not incurred in or caused by military service.The examiner rejected a diagnosis of asbestosis, because there was “[n]o radiographic evidence of pleural plaques[19]consistentwith asbestosis exposure [sic].”20On his October 2017 VA Form 9, formalizing his appeal, Mr. Haas stated: “I have put in the mail 4 CDs from Fresno Community Hospital to support my case. Once you have received these CD[s] youwill see that my COPD and asbestosis is related to the military and that I am currently diagnose[d] with the conditions.”21These CDs were received at the RO on October 13, 13R. at 5173 (Aug. 2017 Statement of the Case); see also VA ADJUDICATION PROCEDURES MANUAL,M21-1 pt. IV, subpt. ii, ch 1, § (1)(3)(a) (May 23, 2018). 14R. at 5173. 15R. at 3.1638 U.S.C. § 1154(a).17See R. at 5445 (May 2015 Notice of Disagreement).18See 38 C.F.R. § 3.159(c) (2019) (“VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim.”).19A “pleural plaque” is “an opaque white patch on the surface of the membrane lining the thoracic cavity,” which is “visible radiologically in cases of asbestosis.” DORLAND’Sat 1456, 1460.20R. at 5475.21R. at 5109.42017,22but the record does not containany evaluation by VA ofthe CT radiographs that they contained.These CT scans were taken nearly 3 years after the scans on which the VA examiner based his analysis23and cannot be regarded as cumulative evidence. Thus, theBoard clearly erred in failing to discuss this medical evidence. Moreover,in the absence of a medical assessmentof this evidence, the Board had no basis to evaluate it.24Though the Secretary acknowledges that the Board did not discuss the evidence on the four CDs, he argues that any error is harmless.25He points to an August 2017summary ofthe CT scans, noting that the report does not identify pleural plaques or diagnose asbestosis. The Secretary contends that “[t]he Court should find that the CT scan report does not show either a diagnosis of asbestosis or that Appellant’s COPD is related to service and that consideration of this opinion would not change the outcome of the case.”26The Court notes that while this one-page summary of the CT scans does not diagnose asbestosis, neither does it reject or exclude such a diagnosis. It does, however, mention scarring in the right middle and right upper lobes,a “soft tissue density in the left lower lobeabutting the lateral pleural margin” and a “6 mm irregular modular density inthe posterior right lower lobe.”27The Court is no more able than the Board to relate these findings to the presence or absence of asbestosis. The Court is therefore unable to conclude that the Board’s error in treatment of this evidence did not prejudice Mr. Haas.B.Both the Board and the examiner’s treatment of time elapsed since service is inconsistent with the delayed-onset characteristic of asbestos-related diseases.The Board’s statement of reasons or bases heavily emphasizes the absence of in-service complaints of a lung condition and the delay before Mr. Haas fileda claim:First, the [v]eteran’s service treatment records do not reflect complaints of, treatment for[,]or a diagnosis related to a lung condition and/or asbestosis while in 22See R. at 2633. The Court notes that it was unnecessary and an impediment to efficient review to include hundreds of pages of radiographs in the record of proceedings. The Court was in no position to interpret or otherwise evaluate these radiographs. The acknowledgment by the Secretary that these scans were received at the RO and not discussed by the Board should have sufficed. 23See R. at 5472-73.24See Colvin v. Derwinski, 1 Vet.App. 171 (1991).25See 38 U.S.C. § 7261(b)(2) (Court must “take due account of the rule of prejudicial error”);Newhouse v. Nicholson, 497 F.3d 1298, 1301 (Fed. Cir. 2007).26Secretary’s Brief at 12.27R. at 5107;see supra note 2.

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