Citation Nr: 1300958 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-14 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from November 1971 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran claims entitlement to service connection for asbestosis. He asserts that he was exposed to asbestos during active service in the Navy and that he currently has asbestosis. Service records reveal that the Veteran served in the Navy from November 1971 to October 1975. His discharge papers, DD 214, indicate that he separated at the rank of Seaman (E 3) with the USS INDEPENDENCE (CV 62) being his last duty assignment. However, this form also indicates that he did not have any period of sea service which would be indicative of being stationed aboard this aircraft carrier. The DD 214 also indicates that he had a specialty in electrical / mechanical repair. Other service personnel records of record do not support that he had such a specialty. Rather, the other service personnel records reveal that he served as an unrated Airman Apprentice and Airman from enlistment until October 1974 when his rating was changed to being and unrated Seaman. The service personnel records also reveal that he served primarily in two fighter squadrons. Because of his Navy service, the evidence establishes that he had some level of asbestos exposure during active duty. However, a July 2002 private examination report also indicates post-service employment as a civilian at Navy facilities for over a decade. In July 2002, a private respiratory examination of the Veteran was conducted. The Veteran reported dyspnea on exertion, productive cough, occasional wheezes, and chest pain on rare occasion. He reported exposure history of his four years of active duty Navy service as well as over 10 years as a civilian Navy employee. Pulmonary Function Tests (PFTs) revealed a mild restrictive defect. Chest x-ray examination was previously conducted in December 2001 and evaluated by the examiner who is a certified "B reader." Evaluation of the x-rays revealed small opacities in the lower and mid lung regions which the examiner found were consistent with mild asbestosis. The assessment was mild asbestosis, although the examiner did not indicate which period of exposure was responsible. There is no relevant medical evidence dated between this examination report and May 2007 when the Veteran filed his claim. A current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). Subsequently, two VA Compensation and Pension examinations of the Veteran were conducted in April 2008 and May 2012. Both examinations included PFTs and chest x-rays, which were evaluated by B readers. Both examinations concluded that the Veteran did not warrant a current diagnosis of asbestosis or any other respiratory disability. The second examination report indicated that the July 2002 examination report had been reviewed, but the examiner did not discuss the findings of that report showing a diagnosis of asbestosis. Asbestosis is not a medical condition which resolves. While the 2002 private examination report indicates a diagnosis of asbestosis based on PFT and x-ray examination. two subsequent VA examinations in 2008 and 2012 reveal no current respiratory disability, asbestosis or otherwise, based upon the same tests. As the VA examination reports did not address the findings of the 2002 private examination report, they are inadequate. Therefore, an additional examination is necessary. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional VA or non-VA medical treatment for asbestosis. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named 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) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate examination for asbestos related respiratory disabilities. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Indicated diagnostic tests and studies, to include PFTs, chest x-ray, and, most specifically, a chest CT, must be accomplished. After examination and review of the record the examiner must provide the following opinions: * does the evidence support that the Veteran has any current respiratory disability? * whether it is at least as likely as not, a 50 percent or greater probability, that any degree of any current respiratory disability is the result of exposure to asbestos during the Veteran's active service from 1971 to 1975? If the examiner concludes that a diagnosis of an asbestos related disorder is not warranted, the examiner must discuss the 2002 private examination report and the 2008 and 2012 VA examination reports and indicate the following: * Did the Veteran have asbestosis in 2002 which resolved? * Are the findings of the examination reports other than the 2002 examination report more accurate and/or probative of the Veteran's current respiratory diagnosis, and if so, why? A complete rationale for all opinions must be given. 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. 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 report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the 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 (2012). In the event that the Veteran does not report for the aforementioned 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. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. Following the above, the RO must readjudicate the Veteran's claim for entitlement to service connection for asbestosis. If the benefit on appeal remains denied, a supplemental statement of the case must be issued, and the Veteran and his representative must be afforded an opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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) (2012).