Citation Nr: 1016029 Decision Date: 04/30/10 Archive Date: 05/06/10 DOCKET NO. 03-30 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1945 to November 1946 and from January 1950 to September 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. During the pendency of this appeal, jurisdiction was transferred to the RO in Montgomery, Alabama. The Veteran testified before a Decision Review Officer (DRO) in May 2004 and the undersigned Acting Veterans Law Judge in June 2006 regarding this appeal; transcripts of these hearings are associated with the claims folder. In November 2006, the Board denied entitlement to service connection for asbestosis. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2008 Memorandum Decision, the Court determined that the Board did not provide adequate reasons and bases for its reliance on a May 2002 VA examination in determining that the Veteran does not have a current diagnosis of asbestosis. As such, it vacated the Board's decision with respect to this issue and remanded the matter for readjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran has filed a claim for service connection for asbestosis which he contends is related to asbestos exposure that occurred during his first period of active duty service from February 1945 to November 1946. Although the Veteran admits to both pre- and post-service occupational asbestos exposure while working as an electrician in shipyards, he asserts throughout this appeal that he was also exposed to asbestos which was used to insulate heating ducts in his barracks, as well as the basement where he worked as a teletype at Schofield Barracks. Additionally, he testified in May 2004 and June 2006 that he spent approximately sixty days onboard a ship which sailed from Seattle to Okinawa to Hawaii and that asbestos was used all over the ship, including where he slept. The Veteran was examined in May 2002 in conjunction with the current appeal for the purpose of determining whether he has asbestosis that is related to claimed in-service asbestos exposure. For reasons discussed below, the Board finds this examination report to be inadequate, and a remand is therefore necessary to afford him another examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The May 2002 VA examination report reflects that no medical records, including the Veteran's service and post-service treatment records, were available for review by the examining physician in conjunction with the examination. Clinical evaluation of the Veteran in May 2002, including a history and physical, chest x-ray, and pulmonary function testing, was essentially negative except for evidence of calcified granuloma in the left upper lobe. No pleural calcification or other active disease was noted in the chest x-ray report, and the May 2002 VA examiner's clinical impression was a history of asbestos exposure without evidence of significant lung disease, including pulmonary asbestosis. Thereafter, in June 2003, the Veteran submitted a copy of letter from a private physician, Dr. L., regarding a February 1999 evaluation for occupational lung disease. Dr. L. notes in this letter that the Veteran reported a history of asbestos exposure from 1943 to the mid-1980s related to work as an electrician; a twenty-year history of smoking two packs per day was also reported. According to the letter, a chest x-ray demonstrated mild fibrotic changes in the mid to lower lung field bilaterally without evidence of pleural thickening or calcifications. Following completion of a history and physical examination, pulmonary function test, and chest x- ray, it was Dr. L.'s clinical impression that the Veteran has pulmonary asbestosis. The relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the present case, the May 2002 VA examiner and the February 1999 private physician reached contrary diagnostic impressions based on essentially the same battery of tests (e.g., a history and physical, a pulmonary function test, and a chest x-ray). Moreover, since the May 2002 VA examiner did not have an opportunity to review Dr. L.'s findings and conclusions, it cannot be said that the opinion provided is based on an accurate and complete medical history of the Veteran. Finally, the Board concludes that it cannot rely solely on the February 1999 private diagnosis because the chest x-ray findings relied upon by the Dr. L. to make a diagnosis of pulmonary asbestosis were not noted in the May 2002 chest x-ray report accompanying the examination report. Therefore, absent any indication as to the accuracy and reliability of the findings of either examination, the Board concludes that it is not clear which examination(s), if any, should be accorded probative weight. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board is prohibited from making conclusions based on its own medical judgment). Under these circumstances, additional medical evidence is needed such that the Board may make a determination in this case. See 38 U.S.C.A. § 5103A(d) (West 2002). If, after an examination of the Veteran and a review of the relevant service and post-service evidence of record, an examining physician concludes that the Veteran has an asbestos-related disease, including asbestosis, then an opinion should be provided as to the likelihood that such disease is related to any asbestos exposure which occurred during service. For purposes of the current appeal, the Board notes that the Veteran's service records reflect that he did engage in service overseas during his first period of active duty service; thus, his lay statements regarding transport onboard a ship are deemed competent and credible. See 38 U.S.C.A. § 1154(a) (West 2002) (due consideration must be given to the places, types, and circumstances of a veteran's service). And since common materials that may contain asbestos are steam pipes for heating units and thermal insulation aboard Naval ships, the Board will resolve all reasonable doubt in favor of the Veteran and find that he was exposed to asbestos for the sixty days he was onboard a ship sailing from Seattle to Okinawa to Hawaii. See VA Adjudication Procedure Manual (M21-1MR), Part IV, Subpart ii, Chapter 2, Section C. See also Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993) (held that VA must analyze a claim for service connection for asbestosis or asbestos-related disabilities under administrative guidelines provided in the VA Adjudication Procedure Manual). As a final note, the Board observes that the Veteran testified in May 2004 that he was prescribed an inhaler by a physician at a VA clinic in Mobile, Alabama for lung-related problems. The current record contains VA treatment records dated through March 2004 which reflect a November 2003 evaluation for "chest tightness" and a March 2004 notation of a history of chronic obstructive pulmonary disease (COPD). Since there is no indication that the Veteran has ceased his treatment with the VA, the Board finds that any outstanding VA records pertinent to the current appeal should be obtained. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Obtain any VA treatment records from the VA Medical Center in Biloxi, Mississippi and the VA Clinic in Mobile, Alabama for the period from April 2004 through the present. A response, negative or positive, should be associated with the claims file. Requests must continue until the agency of original jurisdiction (AOJ) determines that the records sought do not exist or that further efforts to obtain those records would be futile. 2. After any outstanding VA and non-VA treatment records have been associated with the claims file, schedule the Veteran for a VA pulmonary examination. The claims file and a copy of this REMAND must be available to the examiner for review and the examination report should reflect that a review of the claims file was completed in conjunction with the examination. A detailed rationale, including pertinent findings from the record, should be provided for any opinion(s). After reviewing the record, including the February 1999 private physician report and the May 2002 VA examination, examining the Veteran, and completing any medically indicated testing, the VA examiner should answer the following questions: (a) Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran has an asbestos-related disease, including asbestosis. (b) If yes, then whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any current asbestos-related disease is related to in- service asbestos exposure. Note: The examiner should be aware that exposure to asbestos while onboard a transport ship for sixty (60) days has been conceded. The Veteran also alleges exposure from insulation used in his barracks and workplace during service. Finally, the Veteran has a history of pre- and post- service exposure to asbestos while working as an electrician in shipyards. 3. Thereafter, the AOJ should review the claims file to ensure that the foregoing requested development has been completed. In particular, the AOJ should review the examination/opinion report(s) to ensure that they are responsive to and in compliance with the directives of this remand and if not, the AOJ should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. 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). 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). _________________________________________________ WILLIAM YATES 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).