Veteranclaims’s Blog

October 9, 2017

Single Judge Application; Examiner Overreaching; Sizemore, 18 Vet.App. at 275; Asbestos exposure finding of fact;

Excerpt from decision below:

“The appellant asserts, and the Court agrees, that the March 2013 VA examination is inadequate and the Board provided inadequate reasons or bases for relying upon it. The record shows the examiner, as a rationale for his negative nexus opinion, stated that “[i]t is not clear that [the appellant] sustained asbestos exposure during service” and that the appellant’s assertion that he was exposed to asbestos during his military service was “not convincing based on the available evidence.” R. at 80, 81. However, the appellant correctly points out that, as the fact-finder, it was the Board’s responsibility, not the medical examiner’s, to make a finding as to whether he was exposed to asbestos in service, as the matter is not medical in nature. App. Br. at 9 (citing Sizemore v. Principi, 18 Vet.App. 264, 275 (2004) (holding that “to the extent that the examining psychiatrist is expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, that is a matter for determination by the Board and not a medical matter”)). The Court therefore concludes that the Board provided inadequate reasons or bases for its reliance upon the 2013 examination report because the examiner’s rationale is based upon unauthorized fact-
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finding. See Sizemore, 18 Vet.App. at 275 (holding that the examiner’s “overreaching” by engaging in fact-finding tainted the examiner’s opinion).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-1293
JAMES E. MOSES, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

MOORMAN, Senior Judge: The appellant, James E. Moses, appeals through counsel a January 7, 2016, decision of the Board of Veterans’ Appeals (Board) that denied entitlement to service connection for a respiratory disorder other than sleep apnea, and for sleep apnea, both to include as secondary to asbestos exposure. Record (R.) at 2-11. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. § 7252(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Both parties submitted briefs and the appellant submitted a reply brief. For the following reasons, the Court will vacate the Board’s decision as to the denial of service connection for a respiratory disorder other than sleep apnea, to include as secondary to asbestos exposure, and remand the matter for further proceedings consistent with the following decision. The Court will affirm the remainder of the Board’s decision.
1Judge Moorman is a Senior Judge acting in recall status. In re: Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 14-16 (Dec. 21, 2016).
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I. BACKGROUND
Mr. Moses served on active duty in the U.S. Army from August 1962 to September 1964. R. at 549. During his active duty, he was a tank operator and his military occupation specialty code was “Armor Crewman.” Id.; see R. at 8. Mr. Moses stated during the pendency of his claim that the inside of the tanks in which he worked were sprayed with asbestos. R. at 73. A September 1964 separation examination and report of medical history revealed no abnormalities in Mr. Moses’s chest and lungs; however, whooping cough and mumps were noted. R. at 491, 493.
After his discharge from the Army, Mr. Moses worked at Winston Steel Supply, forming metal for trailers and putting crimps in the metal. Id. He then worked as a silk screen operator for General Electric. Id. He worked as a machine operator and maintenance man/mechanic at DuPont for 28 years, before leaving in 1999. Id.; R. at 191. Mr. Moses reported use of masks and other preventive measures to block further asbestos exposure for the last 8 to 10 years that he worked at DuPont. R. at 73.
Mr. Moses reported that he first began having symptoms of respiratory problems in 1991. R. at 175. He has reported incidents of respiratory distress and shortness of breath in the “early ’90s,” in 1997-1998, and in the “late 1990s.” R. at 73, 143. A January 1997 X-ray showed pleural abnormalities consistent with pneumoconiosis, pleural thickening, and pleural calcification. R. at 416. In a 1997 medical report, Dr. Steven M. Koenig of the University of Virginia Occupational Lung Disease Clinic noted that Mr. Moses’s January 1997 spirometry results were consistent with mild restrictive disease. R. at 412. Dr. Koenig also noted that Mr. Moses had post-service occupational exposure to various asbestos-containing products during his 28-year employment at DuPont. Id.
In April 2008, Mr. Moses submitted claims for pleural effusion thickening and sleep apnea, both due to asbestos exposure. R. at 442. In an October 2008 rating decision, the claims were denied. R. at 658-60. Mr. Moses submitted a Notice of Disagreement (NOD) in October 2008 stating that Dr. Koenig’s report was inaccurate because, while working at DuPont, he had worked on machines as a mechanic and was not exposed to asbestos. R. at 224. He asserted that if there was asbestos on the pipes that required removal, contractors were brought in to remove it in compliance with Occupational Safety and Health Administration (OSHA) standards. Id.
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During a November 2009 hearing before a VA decision review officer (DRO), Mr. Moses testified that Dr. Koenig’s statements about his asbestos exposure at DuPont were inaccurate and that DuPont policy prevented employees from working with asbestos-covered pipes. R. at 173-75, 180. A March 18, 2009, Statement of the Case (SOC) continued to deny the claims and, in March 2009, Mr. Moses filed a Substantive Appeal. R. at 188, 192-215.
In February 2010, Mr. Moses was afforded a VA respiratory diseases examination. R. at 143-51. The examiner diagnosed bilateral pleural thickening and opined that it “could possibly be due to asbestosis exposure,” but explained:
However, his exposure, if any, while in the military would be exceptionally little. Counting the two years in service, not all of that time would have been spent working on tanks as he had basic and other training and his MOS was driver. If, indeed, he does have some changes related to asbestos it would be most likely due to his 31 years working at DuPont.
R. at 150. A Supplemental SOC (SSOC) was issued in April 2010. R. at 133-38. In an April 2011 statement, Mr. Moses’s representative asserted that tanks Mr. Moses worked on in service were sprayed inside with asbestos to lessen the sound. R. at 121.
In a March 2013 respiratory conditions VA examination, the examiner opined that it was less likely than not that Mr. Moses’s respiratory conditions were related to his service, including asbestos exposure. R. at 80. As rationale for the negative opinion, the examiner stated that “[i]t is not clear that [Mr. Moses] sustained asbestos exposure during service” and that evidence that Mr. Moses was exposed to asbestos during his military service was “not convincing based on the available evidence.” R. at 80, 81. In addition, the examiner characterized the in-service asbestos exposure as merely a “theoretical risk.” R. at 81. The examiner discussed at length the 1997 report by Dr. Koenig regarding Mr. Moses’s post-service occupational exposure to asbestos. Id. On January 7, 2016, the Board issued the decision here on appeal. R. at 2-11.
II. ANALYSIS
Establishing service connection on a direct basis requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the
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present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995).
The Board’s determination that the appellant’s disabilities are not related to service are findings of fact that the Court reviews under the “clearly erroneous” standard of review in 38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). “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)). When applying this standard, if, after reviewing the record in its entirety, the Court holds that the Board’s finding of fact is supported by a plausible basis, “‘the [Court] may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
In addition, the Board must provide a statement of the reasons or bases for its determinations, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
The appellant asserts that the March 2013 VA medical opinion is inadequate because it “is based on the inaccurate factual premise that [his] conceded in-service asbestos exposure was merely ‘theoretical,’ and is tainted by the examiner’s overreaching.” Appellant’s Brief (App. Br.) at 6. He also argues that the Board failed to provide adequate reasons or bases for finding (1) that his post-service asbestos exposure was greater than his in-service asbestos exposure and (2) that the March 2013 VA examination and Dr. Koenig’s 1997 medical report had more probative value than the appellant’s lay statements that he was not exposed to asbestos during his 28-year, post-service employment at DuPont. Id.
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Although a medical examination is not required in every case, “once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet.App. 46, 51-52 (2007). A medical examination is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App. 102, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). When an examination is provided, the examiner must support his or her conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Stefl, 21 Vet.App. at 124. Thus, “[a] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). However, the law does not impose any reasons-or-bases requirements on medical examiners and the adequacy of medical reports must be based upon a reading of the report as a whole. Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012); Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012).
The appellant asserts, and the Court agrees, that the March 2013 VA examination is inadequate and the Board provided inadequate reasons or bases for relying upon it. The record shows the examiner, as a rationale for his negative nexus opinion, stated that “[i]t is not clear that [the appellant] sustained asbestos exposure during service” and that the appellant’s assertion that he was exposed to asbestos during his military service was “not convincing based on the available evidence.” R. at 80, 81. However, the appellant correctly points out that, as the fact-finder, it was the Board’s responsibility, not the medical examiner’s, to make a finding as to whether he was exposed to asbestos in service, as the matter is not medical in nature. App. Br. at 9 (citing Sizemore v. Principi, 18 Vet.App. 264, 275 (2004) (holding that “to the extent that the examining psychiatrist is expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, that is a matter for determination by the Board and not a medical matter”)). The Court therefore concludes that the Board provided inadequate reasons or bases for its reliance upon the 2013 examination report because the examiner’s rationale is based upon unauthorized fact-
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finding. See Sizemore, 18 Vet.App. at 275 (holding that the examiner’s “overreaching” by engaging in fact-finding tainted the examiner’s opinion).
The Court will therefore remand the appellant’s claim for the Board to provide adequate reasons or bases and, if necessary, further development. 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”). The Court will not, at this time, consider the appellant’s remaining arguments regarding his respiratory disorder claim. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (“It is well settled the Court will not ordinarily consider additional allegations of error that have been rendered moot by the Court’s opinion or that would require the Court to issue an advisory opinion.”); Best v. Principi, 15 Vet.App. 18, 20 (2001) (noting that the factual and legal context may change following a remand to the Board and explaining that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him.”).
The appellant also argues that remand is warranted for his sleep apnea claim because it is inextricably intertwined with his respiratory disorder claim. App. Br. at 14-15. As support, he points to Dr. Koenig’s opinion in his 1997 report that “[s]leep apnea can compromise cardio-pulmonary function in many ways and cause shortness of breath.” R. at 190.
However, there is no evidence in the record that would indicate that the appellant’s respiratory disorder causes or affects sleep apnea. Dr. Koenig’s full statement regarding the appellant’s sleep apnea and shortness of breath is as follows:
The patient’s excess weight, compromised upper airway, excessive daytime sleepiness, awakening unrested and tired in the morning, as well as morning headache suggest the possibility of sleep apnea. Sleep apnea can compromise cardio- pulmonary function in many ways and cause shortness of breath.
Based on the mildness of the “restrictive PFTs,” the presence of other potential causes of restriction (obesity) and the existence of other causes of shortness of breath (smoking /COPD, deconditioning, sleep apnea), it is unlikely that Mr. Moses’ diffuse pleural thickening is the major cause of his shortness of breath.
R. at 190.
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A plain reading of Dr. Koenig’s report does not support the appellant’s theory that his asbestos-related respiratory disorder has any relationship to his sleep apnea, much less that the two matters are “inextricably intertwined.” This Court has held that two claims are inextricably intertwined where a decision on one issue would have a “significant impact” on another, and that impact in turn “could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources.” Harris v. Derwinski, 1 Vet.App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (en banc). In fact, Dr. Koenig’s report mentions only that several of the appellant’s symptoms “suggest the possibility” that he has sleep apnea and does not clearly opine that the appellant even has sleep apnea. Id.
Therefore, because the appellant’s two claims have been adjudicated below separately and there is no direct evidence that an interdependent relationship (or any relationship) exists between the two issues, the appellant’s sleep apnea and respiratory disorder are not inextricably intertwined. See Harris, 1 Vet.App. at 183. As such, the appellant has not carried his burden of establishing error, and the Court finds his argument in this regard must fail. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears the burden of demonstrating error on appeal), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
On remand, the appellant 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). This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the appellant’s and Secretary’s briefs, and a review of the record on appeal, the Board’s January 7, 2016, decision as to the denial of service connection for a respiratory disorder other than sleep apnea, to include as secondary to asbestos exposure, is VACATED and the matter is REMANDED for further proceedings consistent with this decision. The remainder of the Board’s decision is AFFIRMED.
DATED: October 6, 2017
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Copies to:
Christine M. Cote Hill, Esq.
VA General Counsel (027)

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