Citation Nr: 1223767 Decision Date: 07/10/12 Archive Date: 07/18/12 DOCKET NO. 09-47 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a lung disorder, to include asbestosis, chronic obstructive pulmonary disease, and chronic obstructive sleep apnea, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1963 with prior service in the Arkansas Army National Guard, to include a period of active duty for training from June 1957 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In March 2009, the Veteran submitted a claim of entitlement to service connection for asbestosis, claiming that he had been exposed to asbestos during his active duty. The RO interpreted this service connection claim as one for asbestosis, and the claim was developed and adjudicated accordingly. The Veteran's service treatment records dated from May 1960 to May 1963 reflect complaints of coughing, sneezing, and chills in June 1960, and a common cold was diagnosed. In April 1961 and August 1961, the Veteran was diagnosed with an upper respiratory infection after complaints of chest pain on deep breathing, and a cough productive of brown sputum, respectively. In October 1962 and January 1963, the Veteran was diagnosed with "common cold symptoms." The Veteran's March 1963 separation examination report reflects a history of whooping cough as a child, but the Veteran denied chronic or frequent colds, shortness of breath, pain or pressure in his chest, and a chronic cough. The clinical separation examination of his lungs and chest were within normal limits. In a December 2003 VA treatment record, the Veteran's lungs were clear to auscultation, bilaterally, and he reported a history of asbestosis. A March 2006 VA treatment record reveals that the Veteran underwent a prior sleep test and uses oxygen and a continuous positive airway pressure (CPAP) machine at night. He reported an occasional cough and a history of asbestosis "that he got while working in a paper mill," but denied shortness of breath and dyspnea. His lungs were clear to auscultation, and the assessment was chronic obstructive pulmonary disease (COPD) with "[history] of asbestosis, stable at present." VA treatment records dated in March 2007 reflect a history of asbestosis, for which the Veteran received a settlement, and tobacco use, as well as his nightly use of a CPAP machine for sleep apnea. At that time, the Veteran's lungs were clear to auscultation, bilaterally, with no wheezing, and a chest x-ray was scheduled. There is no VA x-ray report dated on or around March 2007. In the May 2009 rating decision, the RO denied the Veteran's claim because the evidence did not show inservice exposure to asbestos or inservice treatment for asbestosis. Later in May 2009, W.C.D., the Veteran's service friend, submitted a statement asserting that he and the Veteran worked as automotive repairmen at Fort Hood, Texas from January 1961 to July 1962, and, during that time, they worked on vehicles with asbestos in the clutch plates, brake linings, and gaskets. The Veteran's service personnel records are consistent with W.C.D.'s May 2009 statement concerning his inservice military occupational specialty as an automotive repairman and assignment in Fort Hood, Texas, during his active service. In support of his claim, the Veteran submitted private treatment records concerning his post-service asbestos exposure related to his employment in a paper mill. It reported that the Veteran underwent a chest x-ray in October 1997, although this x-ray report is not associated with the Veteran's VA claims file. In February 1998, P.H.L., M.D., reviewed the October 1997 chest x-ray, completed a standardized form for reporting asbestos-related diseases, and stated in a February 1998 report that the October 1997 x-ray report reflected "bilateral interstitial fibrotic changes consistent with asbestosis in a patient who has had an adequate [asbestos] exposure history and latent period." In December 1998, the Veteran underwent a pulmonary function test (PFT) which was interpreted by M.M., M.D. The December 1998 PFT results showed Forced Expiratory Volume in One Second (FEV-1) of 3.38 and forced vital capacity (FVC) 4.00 Liters with FEV1/FVC of 84 percent. Total lung capacity was 94 percent predicted; respiratory volume was 96 percent predicted; and the diffusing capacity of the lung for carbon monoxide (DLCO) was 91 percent predicted. After reviewing the February 1998 statement from Dr. L., and the December 1998 PFT results from Dr. M., J.H.B., M.D., prepared a December 1998 report concerning the Veteran's post-service exposure to asbestos while working in a paper mill. In the December 1998 report, Dr. B. stated that the Veteran worked in a paper mill as a pipe fitter and general mechanic from 1958 to 1998, and that he smoked one pack of cigarettes per day from 1958 to 1998. Dr. B., reported that, per an examination by Dr. M., the Veteran's lungs were clear to auscultation and percussion. The assessment was interstitial changes on chest x-ray consistent with asbestosis due to occupational exposure to friable asbestos materials. It was noted that, due to the Veteran's occupational exposure to asbestos, he was at an increased risk for certain cancers and subsequent reduced pulmonary function. Avoidance from tobacco consumption was advised. In May 2009, the Veteran submitted a statement asserting that he was exposed to asbestos during his service in the Arkansas Army National Guard while stationed in barracks at Fort Chaffee, Arkansas, Fort Knox, Kentucky, and Fort Polk, Louisiana. Exposure to asbestos is considered an injury, and thus, service connection may be established for a lung disorder which is the result of such an injury regardless of whether the exposure occurred on active duty for training or inactive duty for training. 38 U.S.C.A. § 101 (22 - 24) (West 2002); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (stating that the law "permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty"). Additionally, the Veteran asserted that, during his active service, he was exposed to asbestos at Fort Leonard Wood, Missouri, when he "fired a boiler for six weeks that had asbestos on it and the pipes running to and from it." The Veteran asserted that, before starting his occupation as a pipe fitter at a paper mill in 1974, his only exposure to asbestos was in the military. In August 2009, the RO requested records from the National Personnel Records Center (NPRC) relating to annual performance evaluations and/or descriptions of duties performed during the Veteran's active service from May 1960 to May 1963. In September 2009, the NPRC noted that performance evaluations could not be located, but partial personnel records pertaining to the Veteran's active duty were sent. The Veteran was afforded a VA examination in connection with his claim in October 2009. The October 2009 VA examination report includes an April 2009 VA chest x-ray indicating "[s]hortness of breath comparison is made to the prior exam[ination]." The x-ray report revealed an unremarkable bony thorax, clear lungs and mediastinal structures and a heart within normal limits. The impression was that no acute process was demonstrated. The October 2009 examiner noted the Veteran's post-service work experience and history of cigarette smoking. Upon physical examination, the Veteran demonstrated clear lungs without rales, digital clubbing, cyanosis, signs of cor pulmonale, peripheral edema or pleural friction rubs. Upon PFT testing in October 2009, DLCO was 94 percent predicted and the ratio of diffusing capacity to the lung volume at which the measurement was made (DL/VA) was 111 percent predicted. The Board observes that FEV-1 and FVC values were not reported. Also, spirometry results are not associated with the Veteran's VA claims file, but a note reflects that such are available "under VISTA imaging." The examiner stated that no actual lung disease was evident and "specifically no restrictive lung disease or obstructive lung disease can be diagnosed on this examination with the information that we have." In support of this statement, the examiner noted that, while the Veteran may have had exposure to asbestos during service, such exposure was "negligible" when compared to the exposure which resulted from his civilian occupation in a paper mill. Also, the examiner noted the normal PFT results in 1998 and October 2009. The examiner discussed the February 1998 interpretation of the October 1997 chest x-ray showing interstitial fibrotic changes, but observed that these interstitial changes, commented on by Dr. B. were "nonspecific and one cannot use those alone to say that [the Veteran] actually has asbestosis." The examiner stated that evidence of pulmonary asbestosis was not seen in the lungs, to include upon x-ray testing in April 2009, and opined that the Veteran's "current condition in regards to his lungs is not related to military service." In an October 2009 statement of the case, the RO continued to deny the Veteran's claim, stating that the evidence of record did not reflect asbestos exposure during service or current asbestosis which was the result of his service. In a December 2009 statement, the Veteran asserted that the latency period for asbestos-related disease makes "it impossible to rule out the military [asbestos] exposure as a contributing factor" of his current lung disorder. When determining the scope of a claim, the Board must consider the Veteran's description of the claim; the symptoms the Veteran describes; and the information the Veteran submits or that VA obtains in support of that claim. Brokowski v. Shinseki, 23 Vet App 79 (2009) citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Given the March 2006 and March 2007 VA treatment reports reflecting notations, signs, and symptoms of chronic obstructive sleep apnea and COPD, the Board has expanded the Veteran's claim to include all lung disorders, and it is recharacterized as seen on the title page. After review of the record, to include the evidence recounted above, the Board concludes that additional development is necessary. With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. After reviewing the Veteran's claims folder, the Board concludes that additional development is necessary in order to comply with VA's duty to notify and assist. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002). The RO did not develop the Veteran's claim with consideration to his assertions of asbestos exposure while service in the Arkansas Army National Guard. The Veteran's personnel file for this period of service, October 1955 to May 1960, was not requested or obtained, and the service treatment records associated with the Veteran's VA claims file include only one instance of treatment prior to May 1960. Upon remand, the RO should request the Veteran's complete personnel file and service treatment records for his National Guard service from October 1955 to May 1960. Additionally, although the NPRC provided documents from the Veteran's personnel file pertaining to his active service, the Board concludes that the Veteran's complete personnel file for his period of active duty service should be obtained and associated with the VA claims file. Also, the dates of employment at the paper mill and prior tobacco use must be clarified. Specifically, in his December 1998 report, Dr. B., asserts that the Veteran smoked a pack of cigarettes per day and worked in the paper mill from 1958 until at least December 1998, the date of the report. Conversely, the Veteran's May 2009 statement and the October 2009 VA examination report reflect that the Veteran started working in the paper mill in 1974. Also, the October 2009 VA examination report reflects that the Veteran smoked cigarettes from 1965 to 1985. Upon remand, the RO should clarify these discrepancies. There are outstanding records which are not associated with the Veteran's VA claims file. Specifically, the March 2007 VA treatment record alludes to a chest x-ray that was scheduled to occur that day. The only VA chest x-ray of record is dated in April 2009. Also, October 2009 spirometry results are not associated with the Veteran's VA claims file, but were noted to be "available under VISTA imaging." Further, the October 2009 PFT test results did not include FVC or FEV-1 values which are essential for determining pulmonary function. Upon remand, the RO should obtain the complete October 2009 PFT results and spirometry test results and associate them with the Veteran's VA claims file. Also, the December 2003 VA treatment record reflects that the Veteran underwent laboratory testing in May 2003, and the Problem List included in the December 2003 VA treatment record reflects that several disorders, to include chronic airway obstruction, were identified in May 2003. There are no VA treatment records dated in May 2003 associated with the Veteran's VA claims file. These records should be obtained and associated with the Veteran's VA claims file. As such, the Board finds there is an indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Also, other than the April 2009 chest x-ray report and the October 2009 VA examination report, there are no records of VA treatment dated after March 2007. Since this claim is being remanded for other matters, the Board concludes that updated VA treatment records should be obtained and associated with the Veteran's VA claims file. In order to comply with VA's duty to assist, the Board finds that a remand for further development is warranted. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Identified private treatment records are not associated with the Veteran's VA claims file. The December 1998 report from Dr. B., reflects that a physical examination was conducted by Dr. M. While Dr. B.'s December 1998 report reflects Dr. M.'s findings, a report of the physical examination by Dr. M. is not associated with the VA claims file. Also, the October 1997 x-ray report, interpreted by Dr. L., in February 1998, is not associated with the Veteran's VA claims file. When VA is put on notice of the existence of private or VA medical records, VA must attempt to obtain those records before proceeding with the appeal. See 38 C.F.R. § 3.159(c)(1) (2011); see also Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the RO, with the assistance of the Veteran, should attempt to obtain these treatment records. To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The record reflects October 1997 x-ray evidence of bilateral interstitial fibrotic changes consistent with asbestosis and the March 2007 VA treatment records reflect prescription and use of a CPAP machine for treatment of chronic obstructive sleep apnea, yet the October 2009 VA examiner specifically stated that no restrictive or obstructive lung disease could be diagnosed at the time of the October 2009 VA examination. Accordingly, whether any of the Veteran's previously diagnosed respiratory disorders, to include COPD, chronic obstructive sleep apnea, and interstitial fibrotic changes were present during the appeal period and subsequently resolved. Further, in light of the outstanding evidence not currently associated with the Veteran's VA claims file, an opinion concerning the existence and etiology of the Veteran's claimed lung disorder once the record is complete is necessary. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 2l Vet. App. 303, 312 (2007); see also 38 C.F.R. § 4.2 (2011). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for his alleged lung disorders. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. In addition, regardless of the Veteran's response, the RO must attempt to obtain the October 1997 chest x-ray report and the report of the December 1998 physical examination from Dr. M., as well as updated treatment records from the VA Central Arkansas Health Care System dated from March 2007 to the present. Also, the RO must obtain the following: (1) a March 2007 VA chest x-ray report, if extant; (2) a complete report of the October 2009 PFT test results, to include FVC or FEV-1 values; (3) a complete report of the October 2009 spirometry results, noted to be available of VISTA imaging; and (4) all records of VA treatment dated in May 2003. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must contact the NPRC, Records Management Center, the Veteran's National Guard unit, the Arkansas State Adjutant General, and any other appropriate location, to request the complete service personnel records corresponding to the Veteran's active service May 1960 to May 1963, and the complete service personnel records and service treatment records corresponding to the Veteran's service with the Arkansas Army National Guard October 1955 to May 1960. In particular, the RO must request verification of the dates the appellant's military service, including any service in the United States Army and the Arkansas Army National Guard. 3. The RO must undertake any additional development deemed necessary to determine the extent, if any, to which the Veteran was exposed to asbestos while stationed in barracks at Fort Chaffee, Arkansas, Fort Knox, Kentucky, and Fort Polk, Louisiana, while in the Arkansas Army National Guard, and while working on a boiler in Fort Leonard Wood, Missouri, or as an automotive repairman in Fort Hood, Texas, while in the Army. 4. The RO must request a supplemental opinion from a VA pulmonologist to provide a supplemental opinion. The claims file and all records on Virtual VA must be made available to the physician, and the pulmonologist must specify in the examination report that the claims file and Virtual VA records have been reviewed. The pulmonologist must specify the dates encompassed by the Virtual VA records that were reviewed. Following a review of the evidence of record, and with consideration of the Veteran's statements, the pulmonologist must opine as to whether interstitial fibrotic changes, COPD, or chronic obstructive sleep apnea were present and resolved during the pendency of this appeal. If the Veteran had any respiratory/pulmonary disabilities during the pendency this appeal, the pulmonologist must provide an opinion as to whether any such disability is related to the Veteran's military service, to include exposure to asbestos, if so found. The examiner must comment on the significance, if any, of the Veteran's longstanding smoking history in reaching this conclusion. All rendered opinions must be accompanied by a thorough rationale. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. If such testing or information is necessary, proper steps to complete such must be undertaken. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The prepared report must be typed. 5. If further examination is necessary, the RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After the above development has been completed, the RO must review the record to ensure complete compliance with the directives of this remand. 7. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand instructions, undertake any additional development action that is deemed warranted, and readjudicate the Veteran's claim. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2011).