Citation Nr: 1300320 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 12-13 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for asbestosis. ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from October 1942 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for asbestosis. 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 Veteran if further action on his part is required. REMAND The Veteran contends that he incurred a pulmonary disability during his military service. Specifically, the Veteran asserts that he has been diagnosed with asbestosis, which was incurred as a result of asbestos exposure during his service in the U.S. Navy. See the Veteran's statement dated March 2012. The Veteran served in the U.S. Navy from October 1942 to January 1946. The Veteran's service personnel records indicate that his military occupational specialty (MOS) was electrician's mate. He also reports having worked on several U.S. Naval vessels and Naval yards while in service. See, e.g., the Veteran's claim dated February 2010 & the Veteran's statement dated March 2012. The RO has conceded asbestos exposure in this case. In a private treatment record dated October 1987, Dr. S.M.H. indicated that the Veteran had complained of "increasing shortness of breath over the past ten years associated with a recent chronic dry cough." The Veteran reported that he had been exposed to asbestos during his military service. He also stated that for several years after service, while working in a power house, he wrapped and heated asbestos tubing on a daily basis. The Veteran reported that he was "constantly exposed to heavy asbestos dust while sawing asbestos board and wrapping high pressure pipes with asbestos." He did not wear mouth or nose protection. He also stated that he worked in construction for several years "where the spraying of asbestos was commonplace and his exposure to dust was extremely heavy." The Veteran reported that this exposure to asbestos continued until 1986. See the private treatment record dated October 1987. Chest x-rays conducted in October 1987 revealed "evidence of bilateral pleural plaquing." Pulmonary function testing was within acceptable normal limits for the Veteran's age. Dr. S.M.H. concluded that "at this point [the Veteran] does indeed have pleural asbestosis as a result of his heavy asbestos exposure." A chest x-ray conducted in December 1990 showed "plaque-type pleural calcifications consistent with pneumoconiosis exposure (asbestosis)." A private stress test performed in August 1993 revealed "[n]egative submaximal stress test." In a private treatment record dated July 1998, Dr. S.M.D. noted that the Veteran had experienced shortness of breath since 1973. Dr. S.M.D. stated that spirometry performed in June 1998 "revealed a reduction in the flow at low lung volumes (FEF 75/FVC) which suggests airway disease. Ventilatory ability is slightly reduced." A contemporaneous chest x-ray showed "findings diagnostic of pleural and pulmonary asbestosis. Compared to 1993, there is progression of pulmonary and pleural asbestosis." Dr. S.M.D. concluded, "[i]n my opinion, the patient has pleural pulmonary asbestosis to a reasonable degree of medical certainty." The Veteran was afforded a VA examination in May 2010 at which time the VA examiner noted that chest x-rays showed "[e]xtensive pleural calcific plaquing." He further noted that pulmonary function testing revealed essentially normal spirometry and lung volumes. The examiner stated that the Veteran's chest x-ray is consistent with exposure to asbestos; however, his pulmonary function testing was normal. He therefore concluded that the findings "are consistent with exposure to asbestos without evidence of asbestosis." In a July 2010 addendum, the VA examiner further indicated that the "x-ray findings of pleural plaques/calcification of the hemidiaphragms are supportive of exposure [to asbestos] but just show plaques and not interstitial changes. Plaques with normal pulmonary functions should not result in any symptoms or result in any disability." Accordingly, based upon the conflicting medical evidence of record, the Board finds that a new VA examination with an opinion is needed to clarify whether the Veteran has a diagnosis of asbestosis and, if so, whether the asbestosis is due to the conceded in-service asbestos exposure. Thus, on remand, a Board certified pulmonologist should examine the Veteran, determine whether he has asbestosis or any other pulmonary disability, and discuss the relevant evidence of record including the private treatment records, the conceded in-service asbestos exposure, and the Veteran's post-service occupational exposure to asbestos. If asbestosis or any other pulmonary disability is diagnosed, the examiner should opine whether there is a 50 percent probability or greater that it is related to the Veteran's active military service. Additionally, in a statement dated March 2012, the Veteran reported that he had been involved in a lawsuit regarding his asbestosis. Any records regarding that matter should be obtained, to the extent possible, and associated with the VA claims file as such documents may be pertinent to the Veteran's claim for compensation. Any negative reply should be documented in the record. 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. Contact the Veteran and request that he identify any outstanding medical examination and treatment records pertaining to his claim including any information regarding his asbestosis related law suit. All efforts to contact the Veteran should be memorialized. With any necessary assistance from the Veteran, obtain outstanding records identified by the Veteran and associate them with the Veteran's VA claims file. Any negative reply should be documented in the file. 2. Schedule the Veteran for a pertinent VA examination with a pulmonologist to determine the nature, extent, and etiology of any asbestosis or pulmonary disability that is found to be present. The claims file must be made available to the examiner. All indicated testing should be conducted. If asbestosis or any other pulmonary disability is diagnosed, the examiner should indicate whether there is a 50 percent probability or greater that it is related to the Veteran's active duty service, including his conceded exposure to asbestos in his MOS of electrician's mate. The examiner should address the private treatment records dated 1987 to 1993, as well as, the Veteran's post-service occupational asbestos exposure. Complete rationale should be given for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she 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 issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ J. A. MARKEY 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).