Citation Nr: 1007103 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 07-32 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for asbestos-related lung disease, to include asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran had active service from January 1962 to May 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. A hearing before the undersigned Acting Veterans Law Judge was held in August 2008. A transcript of the hearing has been associated with the claims file. Additional evidence was received in September 2008, after the appeal had been certified to the Board and after the Veteran's hearing. Such evidence was accompanied by a waiver of Agency of Original Jurisdiction (AOJ) consideration. In December 2008, the Board remanded the appeal, requesting the Appeals Management Center (AMC) to accomplish additional development. The AMC substantially complied with the Board's instructions. Cf. Stegall v. West, 11 Vet. App. 268 (1998). However, as explained below, appellate review is not possible at this time and a further remand is necessary. The Board notes that, in December 2009, the Veteran submitted an additional statement, including discussion about his history of smoking, not otherwise noted in the file. Although the Veteran did not submit this information with a written waiver of AOJ consideration, as this case is to be remanded, the Board will not consider this evidence at this time and no further discussion of the lack of waiver is necessary. 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 Service personnel records show that the Veteran's specialty was EM, Electrician's Mate. A report of record of asbestos exposure according to specialties shows that for Electrician's Mates, there was probable asbestos exposure. The Veteran has alleged in statements and through testimony at the August 2008 hearing that he was exposed to asbestos in service while on board his ship, the USS FRANKLIN D. ROOSEVELT, through his job as an electrician and through the ship's insulation to include insulation in his sleeping quarters. Lay statements submitted in support of the claim by fellow servicemen also note that they were exposed to asbestos on board the ship. Therefore, the Board accepts that the Veteran was exposed to asbestos in service. In an April 2007 statement, the Veteran stated that he experienced possibly an hour per day of exposure to asbestos while working as an electrician. At the Board's hearing in August 2008, the Veteran testified that while he worked as an electrician after service, his exposure to asbestos in his civilian job was minimal, averaging 5 percent or less of his workday. He explained that he was an on-call electrician and, consequently, he was not around the pipes and equipment which contained asbestos on a continuous basis. Lay statements from the Veteran's co-workers submitted in September 2008 state that the Veteran's exposure to asbestos in his civilian job was minimal and that there was minimal, if any, asbestos, in the mill where they all worked. Following service, clinical records reflect the Veteran started to complain of breathing problems and coughing in 1986. A diagnosis consistent with asbestosis was noted in March 2001. Of record is a private physician's opinion of March 2001 which relates the Veteran's asbestosis to his post-service exposure to asbestos. The record includes the examiner's written description of a contemporaneous X-ray report, indicating pleural and parenchymal abnormalities consistent with asbestosis. However, the examiner noted that pulmonary function testing had not yet revealed signs of impairment as a result of asbestos exposure. Also, although the opinion directly references the Veteran's exposure to asbestos during his post-service employment as an electrician, the examiner made no reference to the in-service asbestos exposure. In its December 2008 remand, the Board ordered the AMC to schedule the Veteran for a VA examination to determine the nature and etiology of any lung disability present, to include asbestosis. Subsequently, the AMC afforded the Veteran a medical examination in April 2009. The examiner indicated reviewing treatment records in the claims file, included the March 2001 record diagnosing asbestosis and 2006 treatment records indicating the a left lower lobectomy due to lung cancer. The examiner stated that the Veteran had a 25-pack-year or more history of smoking although he no longer smoked. After physical examination, the examiner also noted that the Veteran currently had dyspnea, with a chronic productive cough. The examiner's diagnoses were obstructive pulmonary disease, including bronchitis and emphysema. Upon reviewing the evidence, the examiner stated that the Veteran had probable exposure to asbestos during service. Yet, the examiner also stated that, while the Veteran's narrative history was suggestive of asbestos exposure, the dust the Veteran described in his accounts of service was not confirmed to be asbestos. Regarding the March 2001 treatment record diagnosing asbestosis, the examiner stated that the X- ray description contained therein indicated changes in the lungs consistent with asbestosis. However, the examiner reported that, as he did not have a copy of the X-ray, he could not confirm the March 2001 examiner's finding. He also stated that 2006 treatment records regarding the lobectomy did not mention any changes in the lungs related to asbestos. As such, the examiner said, even with the Veteran's probable in-service exposure to asbestos, he could not say without speculation whether the Veteran had asbestosis or simply COPD. He also indicated that he could not say without speculation whether the Veteran's lung cancer, treated by lobectomy in 2006, was secondary to asbestos exposure or to smoking history or other factors. In a December 2009 statement, the Veteran stated that he had only smoked for a very short period during his life and, at the time of his lung surgery, had not smoked for more than 20 years. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In the December 2008 remand, the Board stated that we would accept that the Veteran was exposed to asbestos in service. However, the Board notes that, in reviewing this evidence, the April 2009 examiner cast unnecessary doubt on the Veteran's exposure to asbestos, commenting in his conclusion that the dust encountered by the Veteran during service was never confirmed to contain asbestos. Moreover, the examiner discounted the March 2001 treatment record, suggesting asbestosis, because he did not have a copy of the X-ray used therein and, as such, could not confirm the diagnosis. However, because it was authored by a qualified medical examiner, the description of the X-ray included in the March 2001 treatment record is credible medical evidence in itself and, as such, no confirmation of its contents was necessary. See, e.g., Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (allowing a statement regarding medical evidence not in the file to be considered competent evidence if the transmitting individual was himself a physician). As the April 2009 examiner apparently disregarded the March 2001 treatment record in making his determination, the Board finds that his opinion lacks probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999) (indicating that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). For these reasons, the Board finds that another opinion is necessary regarding a potential nexus between the Veteran's lung disorders and any incident in service, to include exposure to asbestos. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should send the file to a qualified examiner to review the file. In his review, the examiner should accept the following as fact: a. The statements submitted by the Veteran and others indicating four years of exposure to asbestos during service and lesser exposure to asbestos during post-service employment are deemed to be credible (i.e., assume approximately one hour per day of exposure throughout four years of active service and post-service exposure about 5 percent of the time on a non-continuous basis in his post- service career as an electrician). b. Asbestosis was diagnosed in March 2001 due to an X-ray report, but was not shown at the time in pulmonary testings. c. The description of the X-ray report, as noted in the aforementioned March 2001 treatment record, is presumed to be accurate. d. All other diagnoses of lung-related disorders in the claims file are presumed to be accurate. With the above in mind, after a review of the claims file, to include all medical evidence, the examiner should answer the following questions: a. Is it as at least as likely as not (50 percent probability or greater) that the Veteran's asbestosis was related to asbestos exposure during service? b. Is it at least as likely as not that any other post-service lung/respiratory disorder (50 percent or greater) is related to any incident in service, including asbestos exposure? All opinions should be accompanied by a clear rationale consistent with the evidence of record. The claims file should be made available to the examiner. If the examiner finds that he cannot answer either of the questions without conducting an additional examination, one should be provided to the Veteran. 2. Upon completion of the above, the AMC/RO should re-adjudicate the claim. In doing so, the AMC/RO should consider all evidence received since issuance of the most recent Supplemental Statement of the Case. If any benefit sought on appeal remains denied, the appellant should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or 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. 2009). _________________________________________________ ERIC S. LEBOFF Acting 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) (2009).