Citation Nr: 1040887 Decision Date: 11/01/10 Archive Date: 11/12/10 DOCKET NO. 09-07 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for lung nodule, also claimed as pulmonary nodule/mass as a result of asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to November 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes here that, while the May 2007 rating decision was issued by the Colombia RO, the Veteran filed his claim with the RO in Atlanta, Georgia, which has handled all correspondence and development of the Veteran's claim throughout the pendency of this appeal. The Veteran was afforded a Video Conference hearing before the undersigned Veterans Law Judge in June 2010. A written transcript of this hearing was prepared and incorporated into the evidence of record. 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claim of service connection for a respiratory condition. The Veteran filed a claim of service connection for a respiratory condition in October 2006. The Veteran contends that he acquired a respiratory condition during his military service in the Navy, when he worked in the boiler room on the USS Independence where he was exposed to asbestos. In this case VA has determined, based on the evidence of record, that the Veteran was exposed to asbestos in-service. Specifically, the VA stated that the Department of the Navy indicated that there was a high probability of asbestos exposure in the Veteran's occupational specialty. The remaining question, then, is whether the Veteran has a current respiratory disability that is related to his in-service asbestos exposure. A July 2006 CT scan was performed on the Veteran by his private physician. The doctor stated pleural calcifications bilaterally are noted and could be from prior trauma or possible asbestos exposure. However, the doctor did conclude that there was a lack of pleural calcification along the diaphragms bilaterally, suggesting against asbestos etiology. A July 2007 letter from the Veteran's private physician stated that the Veteran had a known history of asbestos exposure when working in boiler rooms in the Navy, at which time he performed abatement of asbestos in and around boiler rooms. The doctor noted that the Veteran did not use personal protective respiratory equipment at that time. A CT scan of the Veteran's chest was performed in March 2007, which revealed evidence of multiple pleural calcifications. The doctor also reported that there was no evidence of interstitial abnormalities or pathological lymphadenopathy. Given the Veteran's history of exposure to asbestos, an adequate latency period, and findings of pleural based calcified nodules and pleural plaque, the doctor believed that the Veteran's radiographic abnormalities are indeed related to asbestos inhalation exposure. The doctor noted that there was no evidence of asbestosis at that time. Furthermore, a May 2010 letter from a VA doctor stated that the Veteran had some calcification of the lung lining consistent with asbestos exposure. The doctor noted that they would have to keep an eye on the Veteran's condition, but could do that with a plain x-ray. However, the doctor did not give a diagnosis of the Veteran's respiratory condition. Additionally, the doctor noted that the Veteran had a future appointment with a pulmonary specialist in July 2010. Those reports have not been associated with the claims file. It is unclear to the Board whether the Veteran has a currently diagnosed respiratory condition. The Board notes that the Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran is also competent to report what comes to him through his senses. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). Under 38 U.S.C.A. 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when: a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, the Board finds that the Veteran in this case is competent to report symptoms of a respiratory condition. Moreover, in the absence of any evidence to the contrary, the Board finds that the Veteran's lay statements in this regard are credible. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995) (indicating that the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2010). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Although the Veteran has provided competent reports of continuity of symptomatology and that he is being treated for a respiratory condition, VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of the Veteran's respiratory condition. Although the Veteran has been seeking treatment from the VA for his condition, it remains unclear to the Board whether the Veteran has a currently diagnosed respiratory condition and, if so, whether that condition is related to his in-service asbestos exposure or to any other aspect of his military service. A medical opinion regarding a diagnosis and etiology of the Veteran's respiratory condition is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, VA medical records appear to be outstanding. At the Veteran's June 2010 video conference hearing, he noted that in the past 6 months his condition has worsened and he was prescribed medication to help him with his breathing problem. Additionally, as noted above, while the May 2010 letter from the VA doctor indicated that the Veteran had an appointment with a pulmonary specialist scheduled for July 2010, no medical records from that specialist have been associated with the claims folder. Indeed, the most recent medical records that have been associated with the claims file date back to May 2008. Because it thus appears that there may be outstanding VA medical records dated after that time that may contain information pertinent to his claims, the Board finds that efforts to obtain those records should be made on remand. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. Accordingly, the case is REMANDED for the following action: 1) The AMC should obtain any of the appellant's outstanding VA treatment records dated from May 2008 to present. Any attempts to obtain these records and responses received thereafter should be associated with the appellant's claims file. The appellant should also be offered the opportunity to submit any private treatment records in support of his claim. 2) After the foregoing development has been performed, the AMC should arrange for the Veteran to undergo a VA respiratory examination. The claims file should be provided to the examiner for review in conjunction with the examination. All appropriate testing, to include X-rays, CT scan and pulmonary function testing (if deemed appropriate by the examiner), should be accomplished, and the examiner should identify if there are any respiratory diagnosis, to include asbestosis. The examiner should render an opinion as to whether any current respiratory disorders are at least as likely as not related to asbestos exposure during the Veteran's period of service. Additionally, the examiner should opine as to whether any current respiratory disorder is otherwise related to the Veteran's active service. The examiner should also address the clinical findings rendered by the private and VA doctors, and to the extent his/her opinion/diagnosis differs from these diagnoses, reasons for the difference should be provided. Finally, the VA examiner should also consider any lay evidence regarding a continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim, considering all applicable laws and regulations. If the claim is denied, the AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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. 2010). _________________________________________________ MICHAEL D. MARTIN 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) (2010).