Citation Nr: 1300455 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 10-40 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as asthma with chronic bronchitis, to include as secondary to asbestos and chemical exposure. REPRESENTATION Veteran represented by: West Virginia Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1973 to May 1976. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the Veteran's claim of entitlement to service connection for asthma with chronic bronchitis. In April 2012, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran asserts that he has a current respiratory disorder, specifically asthma, due to exposure to asbestos and/chemicals (e.g. jet fuel) from working in a boiler room in service. He testified at his April 2012 hearing that he worked 12 to 16 hour days on board a ship with asbestos pipes. He also indicated that he started having respiratory problems within a few months of service discharge. The Veteran served in the United States Navy from June 1973 to May 1976 as a Fireman. Service records show that he served onboard the U.S.S. Leahy as a Fire room Watch Supervisor and a Boiler Technician. Service treatment records are negative for any findings of a respiratory disability. In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section H, Topic 29 (Dec. 13, 2005). Additionally, the Board must follow development procedures specifically applicable to asbestos-related claims. Ashford v. Brown, 10 Vet. App. 120 (1997). VA must determine whether military records demonstrate evidence of asbestos exposure during service; whether there was pre-service, post-service, occupational, or other asbestos exposure; and whether there is a relationship between asbestos exposure and the claimed disease. The Board finds that the Veteran's contentions regarding potential in-service exposure to asbestos while serving aboard the U.S.S. Leahy are plausible. Therefore, for the purpose of this adjudication, the Board will concede that the Veteran may have been exposed to asbestos in service. However, mere exposure to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The question in a claim such as this is whether disabling harm ensued. The medical evidence must show not only a currently diagnosed disability, but also a nexus, that is, a causal connection, between this current disability and the exposure to asbestos in service. Hickson v. West, 12 Vet. App. 247 (1999). Post-service treatment records show diagnoses of asthma and reactive airway disease, with a hospitalization for asthma in 1981. Several records address the etiology of the Veteran's current disorder. The Veteran was afforded an examination in October 2009, the report of which reflects a diagnosis of asthma. The examiners indicated that asthma was less likely as not caused by or a result of the Veteran's service working in the boiler room on a Navy ship with asbestos. They reasoned that the Veteran did not have any evidence of asbestosis, but had a mild degree of air trapping with normal spirometry indicating mild asthma. Although the examiners acknowledged occupationally-induced asthma as a consideration, they found that asbestos was not listed as one of the major causes of occupationally-induced asthma. They also indicated that symptoms typically improved after removal of an irritant, which was not the case with the Veteran. In support of their opinion, they listed major causes of occupationally-induced asthma and occupations at risk: low molecular weight chemicals (polyurethane workers, roofers, insulators, and painters), anhydrides (manufactures of paint, plastics, and epoxy resins), metals (planters, welders, and metal and chemical workers), drugs (pharmaceutical workers, farm workers, and health professionals), wood dust (carpenters and woodworkers), dyes and bleaches (fabric and fur dryers, beauticians, amines chemists, cleaners, and plastic manufactures), glues and resins (plastic manufacturers), miscellaneous chemicals (laboratory workers, textile workers, pain sprayers, and health professionals), high molecular weight organic material (farmers, veterinarians, poultry processers, and fish and seafood processors), plant proteins (farmers, bakers, textile workers, food and plant processors, and health professionals), enzymes (pharmaceutical workers, food processors, plastic workers, and detergent manufacturers). Additionally, in a September 2009 treatment record, a VA clinician indicated that the Veteran's asthma symptoms might be related to his work with boilers during service, and it was most likely his work with boilers that triggered and caused his asthma. Also in September 2009, a VA staff pulmonologist indicated that the Veteran's being significantly overweight contributed to his breathing problems. In January 2010, the Veteran's VA clinician stated that it was very possible that the Veteran had some lung airway involvement, and again indicated that it was a good possibility that his occupation dealing with boilers during service could have caused his asthma symptoms. The Board finds that the current evidence of record is insufficient to determine the nature and etiology of the Veteran's claim for service connection for a respiratory disability. Although the Veteran was afforded a VA examination and the examiners indicated that there was no evidence that his asthma was related to asthma, they did not address the etiology of the current asthma, to specifically include whether it could be related to other aspects of the Veteran's service (e.g. exposure to chemicals). Furthermore, they did not address the VA clinical records noting a possible relationship between asthma and service. Likewise, the Board finds that the VA clinician's opinions are inadequate because he provided no basis for his assertions, there is no indication that he reviewed the claims folder, and his opinions are merely speculative in nature. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Therefore, the Veteran must be afforded another VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Therefore, on remand, the Veteran must be afforded another examination for this claim. Accordingly, the case is REMANDED for the following actions: 1. Arrange for an appropriate medical specialist to examine the Veteran and provide an opinion, with supporting rationale, as to the etiology of any current respiratory disability. A report should be prepared and associated with the Veteran's VA claims folder. The examiner should indicate on the examination report that the claims folder was reviewed in conjunction with the examination. The examiner should specifically determine whether it is as likely as not (a 50 percent or greater probability) that any identified respiratory disability, to include asthma with chronic bronchitis, is etiologically related to any incident of the Veteran's military service, to include his presumed exposure to asbestos or exposure to chemicals in a boiler room (including jet fuel). The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record, to include the evidence cited above. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. After completing the requested actions, and any additional notification and/or development warranted, the RO/AMC must readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and afford an appropriate time period for response before the appeal is returned to the Board. 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 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). _________________________________________________ MICHAEL A. PAPPAS 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).