Citation Nr: 1300012 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 09-39 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disability, to include due to exposure to asbestos in service. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from May 1950 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 The appellant claims that he has a lung disability that is related to exposure to asbestos in service. He specifically asserts that while he served in the Navy, he and his shipmates cut a hole through the asbestos and pipe to channel air to their bunks. See July 2012 statement. A March 2010 private CT chest scan report indicates the appellant had calcifications that "may also be related to previous asbestos exposure." A May 2010 private CT chest scan report reflects that: "additional pleural fluid is noted of a small amount with calcifications involving the parietal pleura on the right raising the question of prior asbestos exposure." The impression was extensive pleural base calcifications suggesting asbestos exposure. The appellant was evaluated at a VA examination in January 2012. The VA examiner found the appellant had emphysema and chronic obstructive pulmonary disease (COPD). A computer tomography (CT) scan of the thorax gave an impression of unilateral (right) calcified pleural plaques which were likely related to a prior infection or trauma. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. The rationale was that the chest CT indicated pulmonary abnormalities which were not compatible with changes with asbestos-related lung disease. The Board finds that the rationale for the opinion is inadequate. The VA examiner did not explain why the abnormalities were not compatible with asbestos-related lung disease. Additionally, the CT scan gave an impression of calcified pleural plaques which were likely related to a prior infection or trauma, but the VA examiner did not address whether a prior infection or trauma causing the plaques was related to service. The VA examiner also failed to address the private CT scan reports, which indicated the appellant had calcifications which may be related to prior asbestos exposure. If VA provides the claimant an examination in accordance with the duty to assist, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the rationale is inadequate, the Board finds that a new VA examination is necessary. In July 2012, the Board received evidence from the appellant regarding his exposure to asbestos in service. VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2012). As the appellant and his representative did not waive RO jurisdiction of the evidence and the claim is being remanded, the agency of original jurisdiction (AOJ) should review the new evidence submitted by the appellant prior to preparing a SSOC. 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) (2012). Expedited handling is requested.) 1. Provide the claims file to the VA clinician who performed the January 2012 VA examination, or, if unavailable, a VA clinician of appropriate expertise, to provide an addendum opinion as to whether the appellant has a respiratory disability that is at least as likely as not (likelihood of at least 50%) related to service, to include exposure to asbestos. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. The VA examiner should specifically address why the pulmonary abnormalities seen in the CT scan were not compatible with changes with asbestos-related lung disease. The VA examiner should also address the CT scan report's conclusion that there were unilateral right calcified pleural plagues which were likely related to a prior infection or trauma. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the VA clinician determines that a VA examination is necessary, to include additional testing, such should be accomplished. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for a respiratory disability, to include due to exposure to asbestos. The AOJ should review the evidence received by VA from the appellant in July 2012. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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. 2012). _________________________________________________ MILO H. HAWLEY 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) (2012).