Citation Nr: 0814982 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 99-18 370A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to a rating higher than 10 percent for residuals of a right fifth metacarpal fracture with tendonitis of the right wrist. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Associate Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from August 1966 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in March 1996 and in November 1999 of the Montgomery, Alabama, Department of Veterans' Affairs (VA), and Regional Office (RO). The veteran testified at a personal hearing at the RO in February 2000. In July 2003, he testified before the undersigned Veterans Law Judge at a videoconference hearing. Transcripts of the hearings are in the record. In a decision, dated in February 2006, the Board, in pertinent part, denied the claim of service connection for asbestosis and the claim for increase for residuals of a right fifth metacarpal fracture with tendonitis of the right wrist. The veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order, entered in February 2008, the Court granted the Joint Motion to Remand of the parties, Secretary of VA and the veteran, represented by counsel, and vacated in part, the Board's decision of May 2007, and remanded the claim of service connection for asbestosis and the claim for increase for residuals of a right fifth metacarpal fracture with tendonitis of the right wrist to the Board for readjudication consistent with the Joint Motion. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND In the Joint Motion to Remand, the parties stated that the with respect to the claim of service connection for asbestosis, the VA medical opinion in March 2000 was too speculative and thus inadequate and a remand for an adequate VA examination was required. Additionally, the parties stated that the Board did not supply adequate reasons and bases with respect to the veteran's claim for a rating higher than 10 percent for residuals of a right fifth metacarpal fracture with tendonitis of the right wrist, as it failed to consider evidence regarding the impact of the disability on the veteran's ability to work. On VA examination in May 2001, the veteran indicated that he had nerve damage associated with the service-connected residuals of a right fifth metacarpal fracture with tendonitis of the right wrist. In order to comply with the Joint Motion further evidentiary development is necessary under the duty to assist, and the case is REMANDED for the following: 1. Ensure VCAA compliance with Dingess v. Nicholson, 19 Vet. App. 473 (2006); and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Schedule the veteran for a VA examination by pulmonologist to determine whether the veteran has asbestosis. The examination should include X-rays. The pulmonologist is asked to identify any radiological changes attributable to exposure to asbestos. The claims folder must be made available to the examiner. After completion of the VA examination and a review of the X-rays, the examiner is asked to express an opinion as to the following: a). Does the veteran have asbestosis? b). If asbestosis is diagnosed, is it at least as likely as not that the veteran has asbestosis related to service? In formulating the opinion, the pulmonologist is asked to consider the follow facts: The veteran's DD 214 form shows that he served in the Army from 1966 to 1969 and his military occupational specialty was engineer equipment repairman. After service, a chest X-ray in April 1977 was normal. The veteran has work experience of 18 years of maintenance work at a paper company, where he was occasionally exposed to asbestos, and at least 11 years of work exposure to chemicals to include fumes from cleaning products at a bleach plant and construction engineering work in a tunnel. In March 1994, the veteran was evaluated for a chronic, nonproductive cough. A pulmonary function test was consistent with restrictive lung disease. A chest X-ray was compatible with pulmonary asbestosis. The impression was pulmonary asbestosis. On VA examination in March 2000, a pulmonary function test revealed mild restrictive pulmonary disease. A chest X-ray showed no evidence of sarcoidosis or other parenchymal disease. Also, in formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of one conclusion as to find against the same conclusion. 3. Schedule the veteran for a VA orthopedic and neurological examinations to determine the level of impairment due to the residuals of a right fifth metacarpal fracture with tendonitis of the right wrist. The claims folder must be made available to the examiner for review. The examiner is asked to determine range of motion of dorsiflexion and palmar flexion of the right wrist and any additional functional loss due to pain, fatigability, incoordination, or atrophy. The examiner should also evaluate whether the service-connected residuals of a right fifth metacarpal fracture with tendonitis of the right wrist results in limitation of motion of other digits of the right hand or otherwise interferes with the overall function of the right hand. The examination should include electromyography (EMG) and a nerve conduction study (NCS) to identify the symptoms due to the service-connected residuals of a right fifth metacarpal fracture with tendonitis of the right wrist. 4. After the above development has been completed, adjudicate the claims. On the claim for increase consider an extra-schedular rating. If any determination remains adverse to the veteran, furnish the veteran a supplemental statement of the case and return the case to the Board The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).