Citation Nr: 1237807 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 11-23 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a respiratory disorder, to include as secondary to in-service asbestos exposure. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from August 1969 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the August 2010 rating action from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In his March 2010 claim, the Veteran sought entitlement to service connection for interstitial lung disease, and the August 2010 rating decision denied this issue. However, the Board notes that the competent medical evidence of record not only reflects a diagnosis of interstitial lung disease, but also shows diagnoses of bronchitis, pulmonary fibrosis, pneumonia and chronic obstructive pulmonary disease (COPD), all medical diagnoses which could fall under the category of a respiratory disorder. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying diagnoses recounted above, the Board has recharacterized this issue as is stated on the title page of this decision. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. In July 2012, the Veteran testified at a videoconference hearing conducted at the Louisville RO before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the claim folder. For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran maintains that his current respiratory disorder is related to his years of active service. Specifically, the Veteran contends that he was exposed to asbestos and paint fumes while serving as a boatswain mate aboard the USS Franklin D. Roosevelt (hereinafter "USS Franklin"). During his July 2012 hearing, the Veteran, through his representative, described his in-service duties, and stated that a boatswain mate was responsible for "perform[ing] all maintenance and preservation topside and throughout the various stations on a ship." According to the Veteran, asbestos insulation was widely used on Naval ships during the era wherein he served, and if exposed insulation was ever "knocked loose off the piping" or became "worn," it was not something that could be taped over or re-painted, but rather something that had to be removed by sailors. The Veteran further claims to have had asbestos exposure when stripping, repairing and replacing the flooring on the ship using a chip hammer. As far as the Veteran recalls, he has always had respiratory difficulties since his period of service. See July 2012 Hearing Transcript, (T.), pp. 2-7. Given the nature of the Veteran's condition and its observable symptoms, the Board finds that the Veteran is competent to report that he has experienced respiratory symptoms since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In addition, based on the evidence submitted and testimony provided in support of his claim, the Board finds the Veteran credible with respect to his assertions. Turning to the service treatment records, the Board notes that, on the April 1969 examination conducted pursuant to the Veteran's enlistment, the clinical evaluation of his lung and chest was shown to be normal. In addition, the Veteran denied any respiratory or pulmonary problems in his medical history report and had a physical profile of 'P1' at the time of this examination. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). A number of the Veteran's service treatment records reflect ongoing complaints of, and treatment provided for respiratory problems. The Veteran was first seen at sick call with complaints of a sore throat in February 1970. He was subsequently seen again one month later (March 1970) with complaints of a sore throat of two weeks duration. Upon evaluating the Veteran, the treatment provider noted that the Veteran's throat was inflamed and assessed him with sinusitis. The Veteran was seen on several occasions in February 1971 and in December 1971 with complaints of an ongoing cough and head congestion. During a January 1972 treatment visit, it was noted that the Veteran had had a slightly productive cough for more than thirty days. Upon physical examination, the Veteran's lungs were shown to be within normal limits, his pharynx was described as clear, and his chest X-ray was also within normal limits. Based on his evaluation of the Veteran, the treatment provider assessed him with a viral cough. The Veteran presented at sick call several times again in May 1973 with complaints of a sore throat and congestion in his lungs and sinuses. However, at the Veteran's July 1973 separation examination, the clinical evaluation of his lungs and chest was shown to be normal. With respect to the Veteran's claim that he was exposed to asbestos in service, the Board notes that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988, VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the Veteran's claim of entitlement to service connection for an asbestos-related disorder under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The Manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The Manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As previously noted, the Veteran contends that he had exposure to asbestos during his period of service in the U.S. Navy as a boatswain mate. His primary duties involved the maintenance, painting and upkeep of the ship's external surface - duties which he described in detail at his July 2012 hearing. The Veteran further described working with, and being exposed to insulation that contained asbestos while serving aboard the USS Franklin. In addition, during his hearing, the Veteran denied a history of smoking, and further denied any post-service occupational asbestos exposure, as well as any post-service experiences (i.e. living near a creek/river valley, exploring caves, or using chicken manure as a fertilizer) which may have put him at risk of asbestos exposure. See T., pp. 4-5. The Veteran also submitted internet medical articles which reflect a medical connection between exposure to asbestos fibers and interstitial lung disease. See http://www.mayoclinic.com/health/interstitial-lung-disease. In this regard, the Board finds that there is little controversy as to whether the Veteran was exposed to asbestos in service. His DD 214 indicates that his military occupational specialty was that of Boatswain mate and that he served aboard the USS Franklin. Therefore, his account of in-service asbestos exposure is credible and consistent with the circumstances of his service. Thus, the Board concedes the Veteran's exposure to asbestos in service. The Veteran's post service medical records reflect ongoing treatment for respiratory problems, to include bronchitis, pneumonia, interstitial lung disease, and COPD since the early 1990s. These records reference a history of a chronic cough, bronchitis and routine upper respiratory infections since 1992. An October 1997 chest X-ray reflected an assessment of pneumonities in the posterior segment of the right upper lobe. In May 2007, the Veteran underwent a computed tomography (CT) scan of the thorax, the findings of which were suspicious for interstitial lung disease predominantly involving the right lung base. The radiologist also noted differential diagnostic considerations, to include idiopathic pulmonary fibrosis/UIP (usual interstitial pneumonia), asbestosis, sequelae of hypersensivity pneumonitis or chronic aspiration. A second CT scan was performed in December 2007 and the results revealed stable findings of chronic interstitial lung disease. During a June 2008 follow up visit, the Veteran's private physician, R.L., M.D., acknowledged the Veteran's in-service asbestos exposure, and noted that while the Veteran's interstitial lung disease was not in danger of progressing, long-term follow up care was required with asbestos exposure. During a number of his treatment visits at the VA Pulmonary clinic, the Veteran attributed his pulmonary problems to his military service - specifically his exposure to asbestos in service. See VA treatment records dated from May 2010 to July 2010. The Veteran was afforded a VA examination in June 2010. During the examination, the Veteran provided his military history and described his in-service duties while serving as a boatswain mate aboard the USS Franklin. The Veteran denied any post-service occupational asbestos exposure working as an electrician and further denied any history of cigarette smoking and/or malignant diseases involving his lungs. According to the Veteran, his symptoms of interstitial lung disease began to manifest 15 to 20 years prior. Currently, the Veteran claims to experience shortness of breath and a daily cough, which he describes as worse in the morning and sometimes productive of clear sputum. Based on his examination of the Veteran, as well as his review of the service and post-service treatment records, the examiner diagnosed the Veteran with interstitial lung disease and determined that said disorder was of unknown cause. According to the examiner, the respiratory symptoms documented in the Veteran's service treatment records were "nonspecific" in nature, and there is no evidence providing a nexus between the Veteran's current interstitial lung disease, which may have began as early as 1990, and the symptoms he exhibited in service. The examiner concluded that it is less likely as not that the Veteran's interstitial lung disease is related to his in-service treatment for lung congestion and coughing problems. In his explanation, the examiner also discussed the necessary criteria for a diagnosis of asbestosis. According to the examiner, while the Veteran's findings on radiologic studies are consistent with asbestosis "as could be his physical examination," the Veteran did not have a strong history of asbestos exposure as the record was clear for any objective markers of asbestos exposure, such as pleural plaque on radiologic studies or asbestos bodies on pathology. The examiner determined that other causes leading to the Veteran's interstitial lung disease could not be ruled out and ultimately concluded that it is less likely as not that the Veteran's interstitial lung disease is related to asbestos exposure in service. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the VA undertakes the effort to provide a veteran with a medical examination, it must ensure that such examination is an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the June 2010 VA examiner reviewed the Veteran's claims file in detail, and conducted a thorough evaluation of the Veteran, he (the examiner) failed to take the Veteran's conceded in-service asbestos exposure into consideration when issuing his opinion. In fact, the examiner determined that the Veteran did not have a strong history of asbestos exposure and appears to have relied on this line of reasoning as one of the bases for his negative conclusion. As previously noted above, the Board has conceded the Veteran's in-service asbestos exposure. In addition, while the examiner determined there to be no nexus between the Veteran's interstitial lung disease and his complaints of respiratory problems in service, he did not provide an explanation to support this assertion. He simply stated that the Veteran's respiratory symptoms during service are nonspecific and there was no evidence of a nexus between his in-service symptoms and his current interstitial lung disease. Finally, the Board notes that the examiner determined that 'other causes' leading to the Veteran's interstitial lung disease could not be ruled out, but then failed to discuss what these potential "other causes" may be. A medical opinion is sustained by the quality of the rationale used to support it, and the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). A rationale must be elucidated by a discussion of the medical principles that apply to the medical facts relating to the Veteran's disability. Based on these reasons, the Board does not find the June 2010 opinion to be adequate. As it still remains unclear whether the Veteran's respiratory disorder(s) is(are) related to his in-service asbestos exposure, or otherwise etiologically related to his military service, a remand is necessary for a clarifying VA medical opinion. In addition, the Veteran has stated that he continues to visit the VA Medical Center (VAMC) in Cincinnati, Ohio for follow-up care of his respiratory problems. As such, an attempt should be made to obtain any ongoing medical records pertinent to the Veteran's claim. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Request relevant records pertaining to treatment the Veteran has received for his respiratory condition from the VAMC in Cincinnati, Ohio, from January 2012 to the present. All such available documents should be associated with the claims file, and all efforts to obtain the evidence must be noted it the claims folder. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his current respiratory disorder. The claims folder and a copy of this REMAND must be made available to, and reviewed by, the examiner in conjunction with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take into consideration the February 1970, May 1970, December 1971, December 1972 and May 1973 service treatment records which document the Veteran's in-service complaints of respiratory problems. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any current respiratory disorder(s) and provide diagnoses for all identified disabilities. The examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder(s) had its(their) clinical onset in service or is(are) otherwise related to the Veteran's military service, to include the Veteran's conceded in-service asbestos exposure. In answering this question, the examiner should address the Veteran's competent assertions that he has experienced respiratory problems since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. All opinions expressed must be supported by complete rationale. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Thereafter, readjudicate the claim for service connection for a respiratory disorder, to include as secondary to in-service asbestos exposure. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran 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 remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2012).