Citation Nr: 1301870 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-34 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disorder, to include as due to in-service asbestos exposure. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from March 1945 to July 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Acting Veterans Law Judge in August 2011. A transcript of the hearing is of record. In September 2011, the Board remanded the Veteran's claim for further evidentiary development. The Board's September 2011 remand instructions and the subsequent actions of the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claim has been returned to the Board for further appellate proceedings. 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 AMC, in Washington, DC. REMAND The Board's review of the claims file reveals that further development on the matter of entitlement to service connection for a respiratory disorder, claimed as due to in-service asbestos exposure, is warranted. In the September 2011 remand, the Board noted that the Veteran had been diagnosed with asbestosis in December 1994 and determined that his reports of in-service exposure to asbestos were credible. Accordingly, the Board directed that the Veteran was to be afforded a VA examination to determine the nature and etiology of any diagnosed respiratory disorder. In providing the requested diagnoses and opinions, the examiner was directed to address the Veteran's private treatment records, to include a December 1994 record from J.T.S., M.D., reflecting a diagnosis of asthma. An October 2011 computer printout from the AMC reflects that the Board's September 2011 remand instructions were conveyed verbatim. The October 2011 VA examination report reflects that the Veteran did not have a history of asthma. X-ray testing completed in October 2011 did not reflect calcified pleural plaques, but rather "apical and peripheral oligemia suggest[ing] emphysema." Asbestosis was diagnosed and the examiner stated that, since the Veteran's claims file was unavailable for review, an etiological opinion could not be offered without resort to mere speculation. Thereafter, the Veteran's VA claims file was sent to the October 2011 VA examiner, and in an August 2012 addendum, the examiner opined that the Veteran's asbestosis was less likely as not due to his in-service exposure to asbestos. In doing so, the examiner noted that the October 2011 X-ray reports did not reflect pleural plaques, the "hallmark of this disorder." The Veteran's claim continued to be denied by the AMC in a September 2012 supplemental statement of the case (SSOC). In October 2012, the Veteran submitted a statement and additional medical evidence in support of his claim. In an October 2012 SSOC, the AMC stated that the medical evidence submitted by the Veteran earlier that month was duplicative of evidence already in the claims file. The Veteran's claim continued to be denied by the AMC in an October 2012 SSOC and was subsequently transferred back to the Board. Initially, the Board notes that not all of the Veteran's October 2012 submissions were duplicative of evidence already in the claims file. Specifically, a December 1992 private treatment from E.H.H., M.D., which reflected a diagnosis of asthma and x-ray evidence of pleural plaques, was not of previously associated with the Veteran's claims file. In light of above, it appears that the December 1992 private treatment record from E.H.H., M.D. was not reviewed by the AMC in the first instance, and the Veteran did not submit a waiver of the RO's initial consideration of the evidence. As such, the additional evidence must be referred to the RO for review and preparation of a SSOC, if a grant of the benefit sought is not made. 38 C.F.R. § 20.1304(c) (a claimant must submit a written waiver of evidence submitted directly to the Board, or otherwise the new evidence along with the claims folder must be referred back to the RO for consideration). Moreover, the Board concludes that the October 2011 VA examination and August 2012 addendum are inadequate for the purposes of adjudicating the Veteran's claim. In the September 2011 remand, the Board directed the examiner to address the nature and etiology of any respiratory disorder present. However, despite the evidence of record reflecting a diagnosis of asthma in December 1994, the October 2011 VA examination report reflects that the Veteran did not have a history of asthma. It is unclear whether this disorder resolved. Further, although the October 2011 x-ray reports suggested findings consistent with emphysema, no further testing was completed in order to verify or rule-out this diagnosis and its etiology was not addressed. Also, it appears that the examiner's rationale for the negative nexus opinion concerning the Veteran's diagnosed asbestosis is not consistent with the evidence of record. Specifically, contrary to the VA examiner's August 2012 opinion, X-ray testing completed in December 1992 and July 1994 revealed findings of pleural plaques. The United States Court of Appeals for Veterans Claims (the Court) has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. 268 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Further, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of above, the October 2011 VA examination and August 2012 addendum are found to be inadequate for the purposes of adjudicating the Veteran's claim for entitlement to service connection for a respiratory disorder. Thus, he should be afforded another examination to clarify the nature and etiology of his claimed respiratory disorder on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, as this claim is being remanded, the Board finds that the AMC should contact the Veteran and request that he identify any VA and/or private treatment records which may be outstanding. Any treatment records identified by the Veteran should be obtained. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1); see also Loving v. Nicholson, 19 Vet. App. 96, 102 (2005) (noting that the Secretary has a duty to assist in obtaining relevant and adequately identified records); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: (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. The AMC must request that the Veteran identify any outstanding VA and non-VA treatment records which are not currently associated with the claims file. After the Veteran submits a completed, appropriate release, the AMC must attempt to any private treatment records identified by him. All records obtained should be associated with the Veteran's VA claims file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 2. The AMC must afford the Veteran an appropriate VA examination to determine the nature and etiology of any diagnosed respiratory disorder. All indicated tests and studies, to include chest x-rays and pulmonary function tests, are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner should address the following: a. Identify all current respiratory disorders. b. If asthma and/or emphysema cannot be diagnosed, such should be ruled out, and the examiner must reconcile the current findings with the December 1992 and December 1994 diagnoses of asthma and the October 2011 X-ray report suggesting emphysema. c. State whether current x-ray reports reflect pleural plaques. If pleural plaques are not currently identified, the examiner must address the December 1992 and July 1994 X-ray reports reflecting pleural plaques, to include a discussion of whether pleural plaques may resolve over time. d. Thereafter, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that ANY diagnosed respiratory disorder is etiologically related to his period of active service, to include the claimed asbestos exposure. Such an opinion must be rendered for EACH disorder identified in part (a). Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should so state and provide supporting rationale. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims file. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. Thereafter, the AMC must review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the requested medical examination and opinion to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Upon completion of the above, the AMC should readjudicate the issue on appeal, with consideration of all evidence obtained since the issuance of the October 2012 SSOC. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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). ______________________________________________ J. D. DEANE Acting 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).