Citation Nr: 1012285 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 06-24 905A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a disability with manifestations of chest pain (to include as due to a heart condition) secondary to asbestosis. 2. Entitlement to a compensable evaluation for asbestosis. REPRESENTATION Appellant represented by: Calvin Hansen, Esquire ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from October 1951 to September 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2005 and March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The October 2005 rating decision denied the claim of entitlement to service connection for a heart disorder claimed as chest pain. The March 2006 rating decision denied a compensable evaluation for asbestosis. When this case was most recently before the Board in July 2008, the Board denied the Veteran's claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an Order issued in October 2009 based upon a Joint Motion for Remand between the parties, the Court vacated the July 2008 Board decision and remanded the case to the Board for additional action. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In its July 2008 decision, the Board determined that the Veteran was not entitled to service connection for a disability with manifestations of chest pain (to include as due to a heart condition) secondary to asbestosis or a compensable evaluation for asbestosis. The Board also noted that the Veteran had repeatedly failed to report for VA examinations in part due to his age and heart and respiratory problems, and used medical records submitted by the Veteran in the alternative to decide the claim. Thus, although the Board found that the Veteran had good cause for failing to report for examinations in consideration of 38 C.F.R. § 3.655, it denied the claims on the evidence of record. The parties to the joint motion observed that the Board failed to provide adequate reasons and bases for its determination that the Veteran could not be examined once VA identified the need for medical examinations. They noted that the Veteran and his attorney had explained that he was willing and able to report for examination, albeit with the caveat that the examination be conducted at a facility within 60 miles of his home. In the joint motion, VA facilities in Holdrege, Nebraska and Grand Island, Nebraska, were cited as facilities which he could access. The parties pointed out that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate or at a minimum inform the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Court ordered remand of these claims. Under the circumstances, the Board finds that remand for scheduling of medical examinations is appropriate. Further, the RO should take all necessary action with respect to a deferred rating decision dated in July 2009 regarding the Veteran's attempted claim for service connection for mesothelioma and noting medical information to the effect that mesothelioma is a cancer of the lining of the lungs that is associated with asbestos exposure. Accordingly, this case is REMANDED to the RO for the following actions: 1. The Veteran should be scheduled for a VA examination, at a facility within a 60 mile radius of his home such as the VA clinic in Holdrege, Nebraska or Grand Island, Nebraska, to determine the current nature and extent of impairment from his service-connected asbestosis. The claims folders must be made available to and be reviewed by the examiner. Any indicated studies should be performed. The RO should ensure that all information required for rating purposes is provided by the examiner. The examiner should also provide an opinion as to the effect of the service- connected asbestosis on the Veteran's occupational functioning. The rationale for all opinions expressed should also be provided. Both the Veteran and his attorney should be sent notice of the date, place and time of the scheduled examination. Also, the Veteran and his attorney should be advised of the provisions of 38 C.F.R. § 3.655, concerning the consequences of his failure to report for an examination without good cause. If the Veteran fails to report for an examination, a copy of the notice sent to him and his attorney must be associated with the claims folders. 2. Schedule the Veteran for a VA examination, at a facility within a 60 mile radius of his home such as the VA clinic in Holdrege, Nebraska or Grand Island, Nebraska, to determine whether he currently suffers from a disability with manifestations of chest pain (to include as due to a heart condition) related to his active duty service or service-connected asbestosis. The claims file, to include a copy of this REMAND, must be made available to the examiner for review. The examination report should reflect that such review was completed. After reviewing the record, examining the Veteran, and performing any medically indicated testing, the examiner should provide a diagnosis for any existing disability with manifestations of chest pain (to include as due to a heart condition). The examiner should then provide an opinion as to whether it is more likely than not (more than 50 percent probability), at least as likely as not (50-50 percent probability), or less likely than not (less than 50 percent probability) that any such disability is etiologically related to his active duty service or service-connected asbestosis. A detailed rationale should be provided. If it cannot be determined whether the Veteran currently has such a disability that is related to service or to asbestosis on a medical scientific basis and without invoking processes related to guesses or based upon mere conjecture, the examiner should clearly and specifically state so in the examination report, with an explanation as to why this is so. Both the Veteran and his attorney should be sent notice of the date, place and time of the scheduled examination. Also, the Veteran and his attorney should be advised of the provisions of 38 C.F.R. § 3.655, concerning the consequences of his failure to report for an examination without good cause. If the Veteran fails to report for an examination, a copy of the notice sent to him and his attorney must be associated with the claims folders. 3. The RO should also undertake any other development it determines to be warranted. This must include taking all necessary action with respect to a deferred rating decision dated in July 2009 regarding the Veteran's attempted claim for service connection for mesothelioma and noting medical information to the effect that mesothelioma is a cancer of the lining of the lungs that is associated with asbestos exposure. 4. Then, the RO should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his attorney should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ STEPHEN L. HIGGS 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).