Citation Nr: 0929133 Decision Date: 08/05/09 Archive Date: 08/14/09 DOCKET NO. 06-19 011 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for a lung disorder (claimed as asthma and chronic obstructive pulmonary disease (COPD)), to include as due to asbestos exposure. 3. Entitlement to service connection for sleep apnea, to include as due to a condition caused by inservice asbestos exposure. 4. Entitlement to service connection for pulmonary hypertension, to include as due to sleep apnea or any disorder related to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from May 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2005, May 2006, and July 2007 RO rating decisions. The December 2005 RO decision denied service connection for asbestosis as well as for sleep apnea, to include as due to asbestos exposure (or asbestosis). The May 2006 RO decision denied service connection for pulmonary hypertension, to include as due to asbestos exposure (or asbestosis). The Veteran provided testimony at a personal hearing at the RO in July 2006. The July 2007 RO decision denied service connection for a lung disorder (claimed as asthma and COPD), to include as due to asbestos exposure. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The Veteran seeks service connection for asbestosis, sleep apnea, pulmonary hypertension, and a lung disorder (claimed as asthma and COPD) that he claims are all the result of asbestos exposure aboard ships in the Navy. He has apparently alleged that his sleep apnea and pulmonary hypertension are also secondary to asbestosis. The Veteran specifically contends that he served in the Navy as a boiler tender and that he was exposed to asbestos. He reports that he was assigned to a fire room and that he replaced asbestos insulation on all main and auxiliary steam lines. As noted above, the Veteran served on active duty from May 1968 to October 1970. His service personnel records indicate that he served aboard ships including the USS Austin. His occupational specialty was listed as a machinery repairman- machinist. There was also a notation that the Veteran served as a fireman on the USS Austin. The Veteran's service personnel records do not specifically demonstrate that he was exposed to asbestos as part of his duties. Given his shipboard duties in the Navy, however, the Board will address the Veteran's claim as though he may have had some asbestos exposure at that time. The Veteran's service treatment records show no complaints, findings, or diagnoses of sleep apnea, pulmonary hypertension, or any lung disorders, including any asbestos- related lung problems such as asbestosis. Post-service private and VA treatment records show treatment for variously diagnosed lung disorders including asthma and COPD, as well as for sleep apnea and pulmonary hypertension. For example, a November 2003 treatment report from Northeastern Pulmonary Associates, LLC, indicated that the Veteran was evaluated for dyspnea on exertion, shortness of breath, significant asbestos exposure in the past, and an inability to tolerate a bi-level (biphasic) positive airway pressure (BIPAP) device. The assessment included severe allergic rhinitis; significant exposure to cigarette smoking with a high risk for the possibility of obstructive airway disease; and dyspnea on exertion requiring further work-up and that appeared to be multifactorial, but concomitant lung disease like an interstitial process needed to be ruled out and a work-up might have to be considered. The assessment also included pulmonary hypertension, partly attributed to obstructive sleep apnea, and pleural thickening secondary to asbestos exposure, which needed to be addressed and evaluated by measurement or also by a computed tomography scan of the Veteran's chest. The examiner also reported that the Veteran's significant smoking history plus asbestos exposure placed him at a very high risk for lung cancer. The Board notes that there is no indication that the examiner reviewed the Veteran's claims file in providing the diagnoses and opinions discussed above. An October 2005 VA respiratory examination report noted that the Veteran's claims file was not available for review and that his VA health care system electronic medical records were reviewed. As to an impression, the examiner commented that the Veteran gave a history of having worked as a boiler's mate in the Navy and having been exposed to asbestos on a regular basis. The examiner stated that the Veteran had provided the name of the vessel that he served on, but that he had no way of knowing whether or not the Veteran's particular occupation exposed him to asbestos. The examiner commented that assuming the Veteran was exposed to asbestos, it may or may not be responsible for his current pulmonary problems since he appeared to have gross obesity which was an additional factor that could lead to obstructive sleep apnea. The examiner stated that the Veteran's pulmonary hypertension was likely a consequence of his sleep apnea. It was noted that the Veteran's chest X-ray had been within normal limits and that based on that study, there did not appear to be any evidence for pleural thickening or other changes often seen with asbestosis. The examiner noted that recent studies had drawn attention to serum osteopontin levels as an indicator for asbestos-related lung disease, in particular mesothelioma, and that he had scheduled the Veteran to obtain a serum osteopontin level. A December 2005 laboratory report noted that the Veteran's serum osteopontin was 15 ng/ml, which was within the normal range from 11.3 to 35.4 ng/ml. The Board observes that the VA examiner did not review the Veteran's claims file. Additionally, the examiner's opinion that the Veteran's asbestos exposure may or may not be responsible for his pulmonary problems appears to contradict his assertion that there did not appear to be any evidence of pleural thickening or other changes often seen in asbestosis. Additionally, a March 2006 VA treatment entry related an assessment that included obstructive sleep apnea, still not adequately treated with significant daytime somnolence; asbestos exposure with normal pulmonary function tests and normal chest X-ray and, therefore, no evidence of asbestos- related lung disease; and tobacco use with no evidence of obstructive lung disease at present. The Board notes that there is no indication that the examiner reviewed the Veteran's claims file in providing such diagnoses. Further, an August 2006 report from Northeastern Pulmonary Associates, LLC, reported that the Veteran had been diagnosed with severe obstructive sleep apnea, allergic rhinitis, asthma, COPD, and emphysema with a past history of cigarette smoking and significant asbestos exposure. The assessment was allergic rhinitis, active; asthma, stable; obstructive sleep apnea, active; COPD/emphysema, stable: minimal cigarette consumption with encouragement to reduce further; significant asbestos exposure in the Veteran's past occupational history; and high risk for lung cancer based on asbestos exposure and cigarette smoking. The Board observes that it is unclear from the evidence of record whether any of the diagnosed lung disorders, sleep apnea, or pulmonary hypertension, are related to the Veteran's asbestos exposure during service. Additionally, as noted above, the October 2005 VA respiratory examination report did not include a review of the Veteran's claims file. The Board notes, therefore, that the Veteran has not been afforded a VA examination with the opportunity to obtain a responsive etiological opinion, following a thorough review of the entire claims folder, as to his claim for service connection for asbestosis, as well as his claims for service connection for sleep apnea, pulmonary hypertension, and for a lung disorder (claimed as asthma and COPD), all to include as due to asbestos exposure. Such an examination should be accomplished on remand. 38 C.F.R. § 3.159(c)(4). Also, the Board observes that a September 2005 VA treatment entry noted that the Veteran received disability benefits from the Social Security Administration (SSA) due to his sleep apnea. A June 2007 VA treatment entry noted that the Veteran was currently on 100 percent disability for sleep apnea. The Board observes that there are few records on file pertaining to the Veteran's SSA benefits. The United States Court of Appeals for Veterans Claims (Court) has made it abundantly clear that the records concerning awards of Social Security disability benefits are relevant and must be obtained. Masors v. Derwinski, 2 Vet. App. 181 (1992). As the SSA records may be relevant to Veteran's claims, they should be obtained. Prior to the examination, any outstanding records of pertinent treatment should be obtained and added to the record. Accordingly, these issues are REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him for lung problems, sleep apnea, and pulmonary hypertension since his separation from service. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of any outstanding records of pertinent medical treatment which are not already in the claims folder. Specifically, VA treatment records since June 2007 should be obtained. 2. Contact the SSA and obtain copies of all medical and other records considered by that agency in awarding the Veteran SSA disability benefits, along with copies of all related SSA decisions. 3. Schedule the Veteran for a VA examination by a physician to determine the nature and likely etiology of his claimed asbestosis, as well as his claimed sleep apnea, pulmonary hypertension, and lung disorder (claimed as asthma and COPD), all to include as due to asbestos exposure. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiner should diagnose all current lung disorders and indicate whether the Veteran has sleep apnea or pulmonary hypertension. Based on a review claims file and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed lung disorders, sleep apnea, and pulmonary hypertension, are etiologically related to the Veteran's period of service, to include any exposure to asbestos during service. The examiner should specifically address lung conditions such as asbestosis, asthma and COPD, if any such disorder is diagnosed. If the examiner finds that any diagnosed lung disorder is related to the Veteran's asbestos exposure during service, the examiner should then opine as to whether any such disorder has aggravated (permanently worsened beyond the natural progression) any diagnosed sleep apnea and pulmonary hypertension. 4. Thereafter, readjudicate the Veteran's claims for: entitlement to service connection for asbestosis; entitlement to service connection for sleep apnea, to include as due to asbestosis; entitlement to service connection for pulmonary hypertension, to include as due to asbestos exposure; and entitlement to service connection for a lung disorder (claimed as asthma and COPD), to include as due to asbestos exposure. If any benefit sought is denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. (CONTINUED ON NEXT PAGE) These claims 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). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2008).