Single Judge Application; solvent; Veterans Benefits Administration documents undermine the Secretary’s current claim of ignorance as to what constitutes a solvent. See, e.g., VA ADJUDICATIONS PROCEDURES MANUAL (M21-1MR), pt. IV, subpt. 2, ch. 1, § E(19)(g) (discussing solvent exposure in Gulf War veterans); VA Training Letter 10-01 (Feb. 4, 2010) (same); VA CLINICIANS’ GUIDE § 20.1 (same); VA Training Letter 07-04 (July 5, 2007) (solvent exposure in Navy divers); VA Training Letter 10-03 (Apr. 26, 2010) (solvent exposure from burn pits in Iraq, Afghanistan, and Djibouti and at the Naval Air Facility in Atsugi, Japan); VA Training Letter 11-03 (Nov. 21, 2011) (solvent exposure for veterans stationed at Camp Lejeune).;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0356
WILLIE J. WASHINGTON, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
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 Willie J. Washington, Jr., appeals through counsel a December
12, 2012, Board of Veterans’ Appeals (Board) decision denying service connection for a chronic lung
disorder, to include bronchitis and asthma, including as secondary to exposure to herbicides in
Vietnam. Record (R.) at 3-16. This appeal is timely and the Court has jurisdiction to review the
Board’s 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). For the reasons
that follow, the Court will set aside the December 2012 Board decision and remand the matter for
further development and readjudication consistent with this decision.
I. FACTS
Mr. Washington served on active duty in the U.S. Army from December 1967 to December
1969, including combat service in Vietnam for which he was awarded the Purple Heart and Combat
Action Ribbon. R. at 894. He also served on active duty in the U.S. Navy from January 1975 to
March 1994. R. at 4, 278, 822. During his first period of service, Mr. Washington was hospitalized
with malaria. R. at 1066. His symptoms included rhonchi,1 and he was diagnosed with malaria and
bronchitis. Id.
After initially separating from service, Mr. Washington filed a claim for service connection
for bronchitis. He underwent a VA medical examination in March 1971, at which time his chest was
“completely normal to inspection, percussion, auscultation, etc.”; no rales2 were present; and the
veteran did not have any cough, expectoration, or other symptom of bronchitis. R. at 860. Based
on the results of that examination, a VA regional office (RO) in April 1971 denied service
connection for bronchitis. R. at 854-55. Mr. Washington did not appeal that decision and it
therefore became final.
Mr. Washington subsequently reentered the military, and service medical records (SMRs)
from his second period of service reflect treatment for and diagnoses of various respiratory
conditions. For example, an October 1986 SMR reveals that he was hospitalized in June 1986 with
pneumonia and developed a pulmonary nodule on the middle lobe of his right lung and pleural
plaquing on his left lung. R. at 926. July 1987 SMRs reflect complaints of chest pain, coughing,
wheezing, and whistling sounds related to bronchitis. R. at 928. Moreover, a March 1992 SMR
contains a diagnosis of right lower lung pneumonia secondary to a viral upper respiratory infection.
R. at 940.
In May 1997, following his second period of service, Mr. Washington requested that VA
reopen his previously denied claim for service connection for bronchitis. R. at 827-28. In April
1999, the veteran underwent a VA medical examination and was diagnosed with “[h]istory of
malaria incurred in Vietnam in 1967 following which he has had repeated bouts of apparently
chronic bronchitis or allergic bronchitis” and “[f]requent[] . . . pneumonia.” R. at 795. However,
a November 1999 RO decision determined that the examination report did not constitute new and
material evidence and denied reopening. R. at 767-72. The veteran did not appeal that decision and
1″Rhonchi” are abnormal breath sounds that resemble snoring. “They occur when air is blocked or becomes
rough through the large airways.” NAT’L INSTS. OF HEALTH, MEDLINE PLUS MEDICAL ENCYCLOPEDIA,
http://www.nlm.nih.gov/medlineplus/ency/article/007535.htm (last visited Apr. 15, 2014).
2″Rales” are “small clicking, bubbling, or rattling sounds in the lungs,” which are “believed to occur when air
opens closed air spaces.” NAT’L INSTS. OF HEALTH, MEDLINE PLUS MEDICAL ENCYCLOPEDIA,
http://www.nlm.nih.gov/medlineplus/ency/article/007535.htm (last visited Apr. 15, 2014).
2
it became final. Subsequent attempts at reopening the claim in June 2000 and January 2003 were
also unsuccessful. See R. at 714-18 (April 2002 rating decision denying reopening), 671-77 (June
2003 rating decision denying reopening).
The current appeal stems from Mr. Washington’s June 2004 request to reopen his previously
denied claim for service connection for bronchitis (R. at 667-68), which was denied by the RO in
October 2004 (R. at 640-46). He filed a timely Notice of Disagreement as to that decision (R. at
618-19) and subsequently submitted a statement in support of claim (SSC) indicating that he had
“repeated episodes of bronchitis during [his] last 5 years in the Navy,” which he believed were
related to “exposure to paints and solvents” during his time as a boatswain’s mate (R. at 614). In
November 2006, Dr. H. Curtis Benson, Mr. Washington’s primary care physician at the Jacksonville
Naval Hospital, sent the RO a letter stating that the veteran, “in his Navy job as a boatswain’s mate[,]
was exposed to a variety of chemicals, including fuels and paint. He has chronic asthmatic
bronchitis for which he continues to be under treatment.” R. at 473. In January 2007, Mr.
Washington perfected his appeal to the Board, asserting that he had malaria in Vietnam and that Dr.
Benson had told him that his “bronchitis is connected to having had malaria.” R. at 461. In June
2007, Dr. Benson sent the RO another letter, which stated: “Mr. Washington has chronic
bronchitis[,] which may be due to his exposure to Agent Orange in Viet Nam. As a boatswain’s mate
during his Navy career[,] he was also exposed to a variety of toxic agents including red lead paint.”
R. at 423.
In July 2009, following a November 2007 Board hearing (R. at 355-76), the Board found that
Mr. Washington had submitted new and material evidence sufficient to reopen his previously denied
claim for service connection for chronic bronchitis (R. at 327-38). The Board remanded the
reopened claim for further development, to include obtaining a VA pulmonary examination
addressing the etiology of his claimed respiratory conditions. R. at 336 (instructing the examiner
to opine on whether it is at least as likely as not that any current lung disease “began during service
or is causally linked to any incident of the two periods of active service, to include . . . exposure to
asbestos, lead paint, or herbicide agents”).
Mr. Washington underwent the ordered VA examination in October 2009. R. at 302-06.
After reviewing the claims file and prior medical history, performing a physical examination and
3
pulmonary function tests (PFTs), and reviewing chest x-rays, the examiner diagnosed asthma with
“[n]o objective evidence of chronic bronchitis.” R. at 305. The examiner opined that “[i]t would
be with resort to mere speculation to opine that the veteran’s current lung disease–asthma per PFT–is
caused by or the result of active duty.” Id.
In August 2010, the Board found the October 2009 VA examination inadequate because it
was “rather cursory in nature” and did “not fully address the contended relationship between a current
lung disorder and service, to include exposure to herbicides in Vietnam, and to asbestos and other
solvents aboard ship.” R. at 119. Therefore, the Board remanded the claim for another VA medical
opinion to determine “what, if any, role the [v]eteran’s in-service exposure to herbicides, asbestos,
and lead-based paints played in the development of any current lung disability.” R. at 120-21.
Pursuant to that remand, Mr. Washington underwent another VA medical examination in
December 2010. R. at 82-85. The examiner recorded the veteran’s respiratory complaints and
medical history and performed a physical examination and PFTs. R. at 82-84. The examiner
diagnosed asthma/chronic bronchitis and stated that it would require “resort to mere speculation to
opine whether or not [that condition] is caused by [the veteran’s] exposures during service to paint,
asbestos, herbicides[; or] related to any symptoms documented during service[;] or otherwise the
result of his military service.” R. at 85. The examiner explained that there was “no current objective
evidence for any chronic respiratory condition during service” because Mr. Washington’s SMRs did
not contain PFTs or any diagnoses of a chronic respiratory condition and his December 1992 military
retirement examination showed normal lungs. Id. The examiner also stated:
Although components of paints[,] such as isocynates[,] may cause a type of
asthma/respiratory condition, this should resolve after cessation of exposure. Some
herbicides can cause pulmonary fibrosis, but the veteran has no current objective
evidence of this pathology. There is no current objective evidence on exam today
that the veteran has any asbestosis. And [t]herefore, there is no current objective
evidence that the veteran’s paint or asbestos, or herbicide or other exposures, or his
military service could have caused or aggravated to any degree his current respiratory
condition.
Id. (emphasis added).
In January 2012, the examiner issued an addendum to the December 2010 examination
report, opining that Mr. Washington’s chronic bronchitis was at least as likely as not “the result of
4
his long history of tobacco smoking” because “[c]hronic tobacco smoking is a well-known and
accepted major risk factor in the subsequent development of chronic bronchitis” and the veteran’s
lung dysfunction “is consistent with that expected as a complication from long-term tobacco
smoking.” R. at 76. However, the examiner was unable to definitively attribute the veteran’s asthma
to smoking. R. at 76-77.
In July 2012, the Board determined that further medical evidence was needed to adjudicate
Mr. Washington’s claim and requested an expert medical opinion to determine whether it was at least
as likely as not that any pulmonary disorder began in or was aggravated by service. R. at 298-99.
That opinion was provided in September 2012 by Dr. Prashant Rohatgi, Chief of the Pulmonary
Section of the VA Medical Center in Washington, DC. R. at 291-94. After summarizing the
contents of the claims file, Dr. Rohatgi explained that, although Mr. Washington had episodes of
acute bronchitis in service, he did not have chronic bronchitis when he left service because there was
no evidence of persistent lower respiratory tract symptoms between episodes of pneumonia and acute
bronchitis, there was no evidence of respiratory symptoms on his separation examinations in
December 1969 and December 1992, chest x-rays during and after service were normal, the veteran
had a normal PFT in April 2006, and there was no history of needing medication for chronic
bronchitis. R. at 293. Dr. Rohatgi further stated that there is “no known relationship between
malaria infection and development [of] chronic bronchitis” and there was no evidence that he had
asthma while in service. Id. (emphasis omitted). He also opined that, although it was “possible” that
recurrent episodes of upper respiratory infection, sinusitis, and allergic rhinitis predisposed the
veteran to subsequent development of asthmatic bronchitis, that condition was “more likely” related
to smoking or exposure to allergens. R. at 293-94.
In December 2012, the Board issued the decision currently on appeal, which denied service
connection for a chronic lung disorder, to include bronchitis and asthma. R. at 3-16. Relevant to
this appeal, the Board first found that VA had satisfied its duty to assist Mr. Washington in
developing his claim. R. at 4, 6. It then noted that, although the September 2012 expert opinion
from Dr. Rohatgi “did not describe any potential relationship between exposure to lead paints,
solvents, and herbicides and the development of chronic bronchitis/asthmatic bronchitis,” that issue
5
was “addressed elsewhere in the record,” specifically in the December 2010 VA medical opinion.
R. at 14-15. The Board stated:
The 2010 VA examiner noted that while exposure to paints and other agents might
contribute to the development of lower respiratory problems, . . . there should be
resolution upon removal from the exposure. Thus, while the [v]eteran no doubt had
exposure to paints and solvents used aboard naval ships, he has been removed from
such exposure for many years, and any associate[d] respiratory problems would
likewise be removed.
R. at 15. The Board found the December 2010 VA medical opinion more probative than the other
opinions of record linking Mr. Washington’s chronic lung disorders to “exposure to toxins in
service,” which the Board rejected as “equivocal and unsupported by medical rationale.” R. at 15-16.
The Board therefore concluded that service connection was not warranted because the record did not
contain “a sufficiently explained opinion linking the veteran’s current respiratory disorder to his
active service.” R. at 16 (emphasis in original). This appeal followed.
II. ANALYSIS
Mr. Washington argues, inter alia, that the Board clearly erred in finding that VA had
satisfied its duty to assist because the record does not contain evidence adequately addressing his
theory, expressly raised below, that his current lung disorders are related to his exposure to solvents
in service. Appellant’s Brief (Br.) at 13. The Secretary responds that VA provided the veteran with
an adequate medical examination addressing that theory (Secretary’s Br. at 19-20), and, even if it did
not, there is no requirement that a VA examiner “must render an opinion on a topic as broad as
whether [the veteran’s] respiratory condition was caused by an unspecified ‘solvent,’ . . . which . . .
is nothing more than a liquid in which things may dissolve” (id. at 18 (citing DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 1546 (27th ed. 1988) (defining “solvent” as “a liquid that
dissolves or is capable of dissolving”)). The Court agrees with the veteran.
The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A.
That duty “attaches to the investigation of all possible in-service causes of that current disability”
that are either expressly raised by the claimant or reasonably raised by the record. Schroeder v. West,
212 F.3d 1265, 1271 (Fed. Cir. 2000) (emphasis in original); DeLisio v. Shinseki, 25 Vet.App. 45,
6
53 (2011) (“[T]he Secretary generally must investigate the reasonably apparent and potential causes
of the veteran’s condition and theories of service connection that are reasonably raised by the record
or raised by a sympathetic reading of the claimant’s filing.”); Robinson v. Peake, 21 Vet.App. 545,
552 (2008) (“[T]he duty to assist applies to the entire claim, which might require assistance in
developing more than one theory in support of that claim.”), aff’d sub nom. Robinson v. Shinseki,
557 F.3d 1355 (Fed. Cir. 2009). In certain situations, the duty to assist may include providing a VA
medical examination or opinion to assess the claimant’s theory of entitlement to VA benefits. See
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R.
§ 3.159(c)(4)(i) (2013). “[O]nce the Secretary undertakes the effort to provide an examination when
developing a service-connection claim . . . , he must provide an adequate one or, at a minimum,
notify the claimant why one will not or cannot be provided.” Barr v. Nicholson, 21 Vet.App. 303,
311 (2007).
The Court reviews the Board’s determination that VA satisfied its duty to assist under the
“clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See Nolen v. Gober,
14 Vet.App. 183, 184 (2000). “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)). As with any finding on a
material issue of fact and law presented on the record, the Board must support its determination that
VA satisfied its duty to assist with an adequate statement of reasons or bases that enables the
claimant to understand the precise basis for that finding and facilitates review in this Court.
38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
While his claim was before VA, Mr. Washington expressly raised the theory that his current
lung disorders may be related to in-service exposure to solvents and other chemicals as a boatswain’s
mate, and he presented evidence to support that theory. R. at 614 (veteran’s August 2005 SSC
alleging that his “repeated episodes of bronchitis during [his] last 5 years in the Navy” were related
to “exposure to paints and solvents” during his time as a boatswain’s mate), 473 (November 2006
letter from Dr. Benson noting treatment of Mr. Washington for chronic asthmatic bronchitis and
asserting that the veteran, “in his Navy job as a boatswain’s mate[,] was exposed to a variety of
7
chemicals, including fuels and paint”), 423 (June 2007 letter from Dr. Benson reiterating that the
veteran has chronic bronchitis and noting that, “[a]s a boatswain’s mate during his Navy career[,] he
was also exposed to a variety of toxic agents”). Contrary to the Secretary’s contention (Secretary’s
Br. at 18), Mr. Washington’s failure to identify a specific solvent when raising that theory before VA
does not excuse VA from developing and the Board from considering that theory. See Schroeder,
DeLisio, and Robinson, all supra. To the extent that the theory was vague,3 VA was obligated in this
case to take further action to clarify it, such as simply asking the veteran to identify the solvents to
which he was exposed in service, before adjudicating the claim. See Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 300 (2008) (“[T]he content of information and evidence received by VA may
require an appropriate response, consistent with the duty to assist.”); Godfrey v. Derwinski,
2 Vet.App. 352, 356-57 (1992) (noting that the Board may not ignore issues raised by a veteran in
his appeal).
In any event, the December 2012 Board decision acknowledged Mr. Washington’s theory that
his current lung disorders may be related to in-service exposure to solvents and found that, although
the July 2012 VA expert opinion did not address the theory, the December 2010 VA medical
examiner adequately considered and rejected it. R. at 14-15; see R. at 119 (noting the veteran’s
“contended relationship” between his current lung disorders and exposure to shipboard solvents).
However, a review of the December 2010 VA medical examination report does not support that
finding. To wit, the examiner’s discussion of Mr. Washington’s in-service exposure to potentially
toxic substances is limited to paint, asbestos, and herbicides; there is no mention whatsoever of his
exposure to shipboard solvents. R. at 85 (stating that it would require “resort to mere speculation
to opine whether or not [asthma/chronic bronchitis] is caused by [the veteran’s] exposures during
service to paint, asbestos, herbicides[; or] related to any symptoms documented during service[;] or
otherwise the result of his military service”). The rationale that the examiner provided for his
3Veterans Benefits Administration documents undermine the Secretary’s current claim of ignorance as to what
constitutes a solvent. See, e.g., VA ADJUDICATIONS PROCEDURES MANUAL (M21-1MR), pt. IV, subpt. 2, ch. 1,
§ E(19)(g) (discussing solvent exposure in Gulf War veterans); VA Training Letter 10-01 (Feb. 4, 2010) (same); VA
CLINICIANS’ GUIDE § 20.1 (same); VA Training Letter 07-04 (July 5, 2007) (solvent exposure in Navy divers); VA
Training Letter 10-03 (Apr. 26, 2010) (solvent exposure from burn pits in Iraq, Afghanistan, and Djibouti and at the
Naval Air Facility in Atsugi, Japan); VA Training Letter 11-03 (Nov. 21, 2011) (solvent exposure for veterans stationed
at Camp Lejeune).
8
opinion that it would require speculation to opine on a linkage between the veteran’s lung disorders
and service also does not reflect consideration of the veteran’s exposure to shipboard solvents. The
examiner noted only that the veteran does not have asbestosis or herbicide-related pulmonary fibrosis
and that respiratory problems associated with “some components of paint[,] such as isocynates,”
would “resolve after cessation of exposure”; he did not provide any analysis regarding the veteran’s
claimed in-service exposure to solvents. Id. Thus, the examiner’s resulting conclusion that there is
“no current objective evidence that the veteran’s . . . other exposures . . . could have caused or
aggravated to any degree his current respiratory condition” lacks the reasoned medical explanation
necessary for an adequate medical opinion on the topic of solvent exposure. Id.; see Nieves-
Rodriguez, 22 Vet.App. at 301 (2008) (“[A] medical examination report must contain not only clear
conclusions with supporting data, but also a reasoned medical explanation connecting the two.”).
The Court therefore concludes that the Board clearly erred in relying on the inadequate
December 2010 VA medical examination report to reject Mr. Washington’s theory of service
connection based on in-service exposure to solvents, see Nolen, 14 Vet.App. at 184; Ardison v.
Brown, 6 Vet.App. 405, 407 (1994) (holding that the Board errs when it relies on an inadequate
medical examination report or opinion), and that error warrants remand, see Tucker v. West,
11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the Board has
incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the record is otherwise inadequate”). To the extent that the Board found
that medical evidence was necessary to adjudicate Mr. Washington’s theory of service connection
based on in-service exposure to solvents (R. at 15-16) and the record currently lacks such evidence,
the Board is directed on remand to provide the veteran with a new VA medical examination or
opinion that adequately addresses that theory or explain why one is not necessary. See Barr,
22 Vet.App. at 311.
Given this disposition, the Court need not address the veteran’s additional arguments at this
time. See Kahana v. Shinseki, 24 Vet.App. 428, 437 (2011). On remand, Mr. Washington is free
to present those arguments, as well as any additional arguments and evidence, to the Board in
9
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).4 See
Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[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 in an expeditious manner in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, the December 12, 2012, Board decision is SET ASIDE
and the matter is REMANDED for further development and readjudication consistent with this
decision.
DATED: April 25, 2014
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
4This includes requesting that VA attempt to obtain any outstanding medical records from the Jacksonville
Naval Hospital. See Appellant’s Br. at 11-12.
10