Citation Nr: 1303336 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 06-21 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a July 2005 rating decision of the VA Regional Office (Ro) in New York, New York that declined to reopen the claim of entitlement to service connection for asbestosis. By decision dated in June 2009, the Board reopened the claim of entitlement to service connection for asbestosis and remanded the case for further development. The claim was remanded again in November 2010. The case was subsequently referred for a Veterans Health Administration (VHA) opinion in October 2012. Following review of the record, 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 Veteran asserts that he has asbestosis or a current lung disorder that is related to asbestos exposure during active duty for which service connection should be granted. [To the examiner: Please be advised that the following is intended as a brief factual background and is not intended as a substitute for your review of the Veteran's claims folder.] The Veteran did not have Navy service or served on a ship. According to service personnel records and written statements, his military occupational specialty (MOS) was aircraft armament repairman that included helicopter maintenance. He has submitted evidence that he has been certified as a member of a class of people with exposure to asbestos for which a class action suit was filed against Crane Company that manufactured gaskets, valves, boilers, etc., between the 1920s and 1970s. Among other occupations and positions reported, the Veteran indicates that he had asbestos exposure working on and around military helicopters between 1967 and 1970. VA concedes exposure to asbestos in service. However, there is a conflict in the medical evidence as to whether the Veteran currently has asbestosis or an asbestos-related disorder, or whether he has any other respiratory disorder related service, to include inservice exposure to asbestos and treatment for pleurisy therein. Private medical statements dated in 2006 reflect diagnoses of asbestosis and early asbestos-related pleural thickening with non-calcified pleural plaque, bilaterally, based on findings from CT chest scans dated in August 2001 and January 2006. A January 2006 CT chest scan notes that bilateral posterior pleural thickening or plaque formation was identified, and that there was evidence of mild to moderate fibrotic changes at the lung bases and increased lung markings that were felt to be significant for round atelectasis and asbestosis. The report of a February 2006 Pulmonary Function Test (PFT) revealed findings of moderate restrictive lung disease, but normal DLCO findings. The Veteran's treating physician, Dr. A. D., opined in 2006 that he had asbestosis related to his service as helicopter maintenance repairman. A March 2006 VA PFT was interpreted as showing evidence of mild obstructive dysfunction, but normal DLCO findings. A chest X-ray was also interpreted as normal. The VA examiner concluded that there was no evidence of asbestosis. Subsequent medical opinions obtained from two VA examiners also ruled out a diagnosis of asbestosis based on the lack of interstitial fibrosis shown on CAT scan, as well as normal DLCO findings in the PFTs. [See the report of a September 2009 VA medical opinion with December 2010 supplemental medical statement, and a March 2012 VA medical opinion report.] However, none of the VA examiners has discussed why the findings identified in the 2001 and 2006 CAT scan reports did not support a diagnosis of asbestosis or an asbestos-related disorder as ascertained by private physicians. In addition, no medical opinion has been obtained to determine whether the Veteran has a currently diagnosed respiratory disorder that is related to inservice treatment for pleurisy in February 1968 and January 1969. Pursuant to Board remand, the Veteran was scheduled for a VA compensation and pension examination in September 2009 for a determination as to whether he had an asbestos-related disease. However, he declined to report for examination citing inability to do so due to service-connected psychiatric disability, including agoraphobia. His treating psychologist, B. R. Aronowitz, Ph.D., wrote in October 2009 that the appellant was under her care for service-related severe depression, anxiety and panic disorder with agoraphobia, was completely housebound and could not attend the VA compensation and pension "hearing" in September 2009. The claims folder was merely reviewed by a VA examiner in December 2010 before forming an opinion. In October 2010, the VHA examiner's report referred several times to the contradictory evidence in the record and indicated that it was difficult to form an opinion. It was noted that the available evidence was limited and that a thorough physical examination, new pulmonary function tests, and a new chest X-ray would be "extremely helpful" in arriving at a conclusion in the case. Under the circumstances, the Board finds that the Veteran must undergo a current VA examination for an informed decision in this matter. The Board empathizes with the Veteran's plight, but points out that the facts of this case are such that a favorable determination cannot be rendered unless VA can initially ascertain whether he currently has an asbestos-related lung disease, which has not been demonstrated in this case. Additionally, the record indicates that the Veteran has received VA treatment in the past and that the most recent request for records dates through October 2007. As VA has notice of the potential existence of additional records, they must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet.App. 611 (1992). Therefore, any records dating from November 2007 to the present should be requested and associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he submit any additional evidence from medical care providers who have treated him for asbestosis since 2006. Obtain any records identified by the Veteran that are not already in the claims file and associate them with the claims folder. Ask the Veteran to submit documentation or correspondence he has regarding any settlement with the Crane Company or the lawyers handling that action. 2. Request VA outpatient records dating from November 2007 and associate with the claims folder. 3. Schedule the Veteran for an examination by a board-certified VA pulmonologist. The claims folder and a copy of this remand must be made available to the examiner. The examining physician must indicate whether the claims folder is reviewed. All indicated tests and studies should be performed and clinical findings must be reported in detail. The examination report should reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc., in a narrative format. The examiner must also respond to the following questions. a) Does the evidence support a current diagnosis of asbestosis or an asbestos-related disorder? The examiner is specifically asked to address the significance of the 2001 and 2006 CT scan findings, as well as the normal DLCO findings in the PFTs in determining whether the evidence rules in or excludes a diagnosis of asbestosis or an asbestos-related disorder. b) Does the evidence support a current diagnosis of any other respiratory disorder, to include restrictive or obstructive lung disease? c) The examiner should specifically state whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently diagnosed respiratory disorder is related to or had its onset during the Veteran's military service, to include inservice exposure to asbestos and/or inservice treatment for pleurisy in 1968 and 1969? The examination report must include well-reasoned rationale for all opinions and conclusions reached. 4. The RO should ensure that the medical report requested above complies with this remand and its instructions. If the report is insufficient, or if any requested action is not taken or is deficient, it must be returned for correction. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. 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 may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. After taking any further development deemed appropriate, re-adjudicate the issue on appeal. If the benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. 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 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). _________________________________________________ CHERYL L. MASON 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).