Citation Nr: 1138579 Decision Date: 10/17/11 Archive Date: 10/25/11 DOCKET NO. 10-19 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a lung condition, claimed as due to asbestos exposure. WITNESSES AT HEARING ON APPEAL The Veteran, J. P., and C. P. ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from April 1949 to April 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a hearing in July 2011 before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. The record was held open for an additional 30 days following the hearing to allow the Veteran time to submit additional evidence. Within the 30 days, he submitted a list of five private health care providers. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 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 While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. During the 30 day abeyance period after his July 2011 hearing, the Veteran submitted the names and addresses of five private health care providers who treated him for his lung condition. VA had already obtained the records from two of the providers: Dr. R., who is now deceased, and Scioto Memorial Hospital. However, the RO has not attempted to obtain the records from the remaining three providers because their information was not of record until the Veteran submitted his statement in August 2011. As these records may be pertinent to the Veteran's claim, the RO must attempt to obtain them. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). The most recent VA treatment records are from July 2010. To ensure completeness of the record, the RO should obtain any outstanding VA treatment records. There is conflicting medical evidence regarding whether the Veteran's in-service or post-service asbestos exposure caused his lung condition. At his July 2011 hearing and in a February 2009 statement, the Veteran reported four time periods during which he was exposed to asbestos: working as a boiler tender and working in a dry dock in the Navy in 1949 and 1950, a truck driver for an atomic plant in the 1950s, a railroad repairman, and a school janitor in the 1980s. He submitted a copy of his Medical Benefits Identification Card from the Department of Labor's Division of Energy Employees Occupational Illness Compensation, from which he receives benefits as a result of his work at the atomic plant. The card indicated that he had been exposed to asbestos and diagnosed with asbestosis. The Veteran underwent a VA examination in May 2009. After examining the Veteran and reviewing his claims file, the examiner could not provide an opinion regarding whether the Veteran's lung condition was caused by his in-service asbestos exposure because of his significant post-service asbestos exposure. In support of his claim, the Veteran submitted a copy of a June 2010 statement from a VA physician's assistant who found that the Veteran's CT scan results were consistent with asbestosis and opined, "[g]iven [the Veteran's] history of service and his activities while in the Navy, it would be remarkable if he did NOT have any findings consistent with asbestosis. There is a far greater than not likelihood that [the Veteran's] present lung condition is directly attributable to his Navy asbestos exposure." The physician's assistant either was not aware, or did not choose to discuss the Veteran's significant post-service asbestos exposure. Also in June 2010, the Veteran submitted a statement from Dr. J. G., his private physician, who stated that there was a "50 [percent] chance that [the Veteran's] exposure to asbestos in the Navy is the cause for his condition today." As with the June 2010 VA physician's assistant's opinion, there is no evidence that Dr. J. G. was aware of the Veteran's significant post-service asbestos exposure. The Board does not have the medical expertise to determine whether the Veteran's in-service or post-service asbestos exposure caused the claimed lung condition. The Board may not make use of its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171 (1991). As a result, the record is not sufficient for the Board to adjudicate the Veteran's claim and an etiology opinion from a pulmonary specialist is required on this complicated matter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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) (2010). Expedited handling is requested.) 1. Contact the Veteran and determine whether he or the VA physician's assistant who provided the June 2010 statement have any additional records in support of that statement. 2. Provide the Veteran with release forms for medical records generated by Southern Hills Hospital in Portsmouth, Ohio; Dr. W. S. in West Portsmouth, Ohio; and Dr. T. S. in Portsmouth, Ohio. If the Veteran returns the forms, attempt to obtain these records and associate them with the claims file. If the records are not obtainable, the Veteran should be notified and the record clearly documented. 3. Obtain any outstanding VA treatment records that may exist. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2010). 4. Review the claims file and ensure the development actions have been conducted and completed. Then, provide the Veteran's claims file to a VA pulmonary specialist for a medical opinion. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) With respect to the review of the claims file, the Board calls the examiner's attention to (1) the copy of the Veteran's Medical Benefits Identification Card from the Department of Labor's Division of Energy Employees Occupational Illness Compensation, (2) the June 2010 opinions from Dr. J. G. and a VA physician's assistant, and (3) the Veteran's February 2009 statement and July 2011 hearing testimony indicating that he was exposed to asbestos during four separate jobs: a boiler tender in the Navy in 1949 and 1950, a truck driver for an atomic plant in the 1950s, a railroad repairman, and a school janitor in the 1980s. c) The examiner must provide an opinion as to whether there is any clinical basis to separate the Veteran's military asbestos exposure from his post-service exposure. The examiner should state whether the Veteran's asbestos-related lung condition was caused solely by his in-service asbestos exposure. d) The examiner must provide a complete rationale for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. e) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete rationale for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then 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 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. 2010). _________________________________________________ Vito A. Clementi 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).