Citation Nr: 1019155 Decision Date: 05/24/10 Archive Date: 06/04/10 DOCKET NO. 10-00 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a lung disability, including as due to asbestos exposure. 2. Entitlement to service connection for residuals of inactive tuberculosis with removal of portion of the right lung. 3. Entitlement to service connection for a scar of the back, due to residuals from a tuberculosis biopsy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1951 to February 1970. This case comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision rendered by the Tiger Team as part of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA). The Boston, Massachusetts, has jurisdiction over the Veteran's claims. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND VA is obligated to obtain a VA medical examination or opinion for claims in cases, such as this one, where there is (1) evidence of a current disability, (2) evidence of an in- service event, injury, or disease, and (3) an indication that there may be a connection between the two. See 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.326 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To this end, the Veteran was given a VA medical examination in conjunction with these claims in April 2009. The Veteran's claims file currently contains the Veteran's service treatment records and a significant number of post- service private treatment records from various doctors. The April 2009 VA examiner specifically noted in his report that there were no medical records in the claims folder for his review. This means that neither the Veteran's service treatment records, nor various post-service medical records, were available to the examiner prior to the examination. As there were no medical records whatsoever located in the Veteran's claims file before his VA examination, it is not possible that the examiner considered all procurable and assembled data by obtaining all tests and records that might reasonably illuminate his medical analysis. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board notes that although the examiner opined that it was likely the Veteran was exposed to TB in the Navy, the examiner did not opine if that exposure was linked to the Veteran's subsequent development of TB in the early 2000s, or if the Veteran had any current residuals of TB. The examiner also stated that he would be happy to review records, including a pathology report, regarding the Veteran's claimed asbestosis. The examiner indicated that there was a question of additional pleural plaques that he thought could be resolved by obtaining a chest CT. While the VA examiner indicated he was going to obtain a chest CT, this report is not located in the claims file, and there is no further comment by the examiner. The Court of Veterans Claims has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion [] must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board notes that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). VA's duty to assist can include a requirement to conduct a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Given the evidence added to the Veteran's claims file after the April 2009 examination and the incomplete medical opinions given, the Board finds that the April 2009 examination and opinion is inadequate (as it did not have the benefit of the Veteran's service treatment records or any post-service medical records) and a new examination with a nexus opinion should be provided to the Veteran. The Board finds that an examination of the Veteran and a full review of the Veteran's service treatment records, medical records and claims file by an examiner(s) would be helpful in deciding his claims. The examiner should take into account the Veteran's entire medical history, address his contentions and provide a complete rationale for any opinion provided. The Board observes that there appear to be some VA treatment records not associated with the claims file, including a chest CT scan the April 2009 examiner said he was going to obtain. These treatment records should be obtained. See 38 C.F.R. § 3.159(c)(2) (2009). 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 and associate with the claims file all available VA treatment records for the Veteran from the VA Boston Healthcare system from April 2009 to the present including any CT scan done in April 2009, if it was done. 2. After the above has been accomplished, schedule the Veteran for a VA examination(s) to determine the nature and etiology of any residuals of tuberculosis the Veteran may have, to also include any scars due to biopsy. The examiner should specifically delineate any residuals of inactive or active tuberculosis the Veteran currently has. All necessary testing should be conducted. The Veteran's claims folder, including a copy of this Remand, should be available to the examiner(s) and reviewed in conjunction with the examination. This report should include a discussion of the Veteran's documented medical history, to include his service treatment records and post-service treatment records (with comment on the April 2009 VA examination report), as well as the Veteran's assertions regarding his symptomatology. The examiner(s) should provide an opinion(s) as to 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's tuberculosis that was discovered in 2001 first manifested, was aggravated by or is in any way related to his active military service. Any opinion expressed in the examination report should be accompanied by a written rationale with evidence in the claims file and/or sound medical principles. 3. After remand paragraph (1) has been accomplished, schedule the Veteran for a VA examination(s) to determine the nature and etiology of any current lung disability. The examiner should specifically delineate all lung diagnoses. All necessary testing should be conducted. The Veteran's claims folder, including a copy of this Remand, should be available to the examiner(s) and reviewed in conjunction with the examination. This report should include a discussion of the Veteran's documented medical history (with comment on the April 2009 VA examination report), as well as the Veteran's assertions regarding his symptomatology. The examiner(s) should then provide an opinion(s) as to 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's lung disability first manifested, was aggravated by or is in any way related to his active military service, to include as secondary to the Veteran's asbestos exposure in service. Any opinion expressed in the examination report should be accompanied by a written rationale with evidence in the claims file and/or sound medical principles. 4. Once the above action has been completed, readjudicate the claims. If the issues on appeal remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant 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. 2009). ______________________________________________ Alexandra P. Simpson 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).