Citation Nr: 1303953 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-15 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disability to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Marine Corps from January 1956 to March 1959 and in the U.S. Navy from April 1959 to November 1960. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Board remanded this case for additional development. The case is now before the Board for further appellate consideration. The Veteran also perfected an appeal as to service connection for a bilateral hearing loss disability and for residuals of a head injury characterized as headaches and dizziness. In a November 2012 rating decision, the AMC granted service connection for hearing loss and headache syndrome. As the claimed benefit has been granted in full as to those issues, they are no longer before the Board for consideration. A review of the Veteran's Virtual VA electronic claims file is negative for any additional information or evidence pertinent to the claim on appeal. 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 Unfortunately, the Board again finds that additional development is necessary prior to adjudication of the Veteran's claim for service connection for a respiratory disability, to include as due to asbestos exposure during military service. The Veteran contends that he has a respiratory disability due his exposure to asbestos while performing his military occupational duties as a welder and sheet metal worker aboard the U.S.S. Platte from November 1959 to August 1960. The Veteran's service personnel records from his second period of active service in the Navy, dating from April 1959 to November 1960, show that his military occupational specialty (MOS) was a fireman. They also show that he served aboard the U.S.S. Platte from November 1959 to August 1960. Although there is some inconsistency between the MOS noted in his records and the duties described by the Veteran, the Board notes that either would lead to potential exposure to asbestos. Therefore, the Veteran's asbestos exposure during his second period of active service is not in dispute. M21-1MR provides that inhalation of asbestos fibers can produce fibrosis and tumors, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. Medical nexus evidence is required in claims for asbestos-related disease linked to alleged asbestos exposure in service. VAOPGCPREC 4-2000 (Apr. 13, 2000); 65 Fed. Reg. 33,422 (2000). The Veteran was afforded a VA examination to determine the nature and etiology of his claimed respiratory disability in October 2012. In November 2012, the examiner opined that it is less likely than not that a nodule in the lower lobe of the Veteran's left lung or his COPD, which encompasses chronic bronchitis and obstructive airways disease, are due to his asbestos exposure during service. The examiner reasoned that as stated in prior CT scan, there are no specific findings particularly diagnostic of asbestosis. In particular, she explained that there is no evidence of calcified pleural plaque or of significant interstitial disease. Contrary to this rationale, however, the Board notes that a May 2012 CT scan of the Veteran's chest revealed a finding of apparent pleural plaque on the dome of the right hemidiaphragm. Thus, the Board is concerned that the reasoning provided in support of the November 2012 opinion is based at least in part on a factual error with respect to the record. Therefore, the opinion is inadequate for purposes of adjudication of the claim and an additional medical opinion must be obtained. 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). The Board also notes that the examiner did not address the significance, if any, of the Veteran's pre-service occupation as a farmer as noted in his January 1956 report of medical history or of in-service diagnosis of and treatment for bronchitis and pneumonitis in September and October 1956. Additionally, VA treatment records indicate that the Veteran received private emergency treatment for a respiratory condition at SOMC in March 2007. As these records are relevant to the claim, an attempt should be made to obtain them. Furthermore, VA treatment records were most recently updated in October 2009. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's assistance in obtaining any records of pertinent treatment not currently on file pertaining to his claimed respiratory disability, to specifically include treatment records and diagnostic reports from SOMC for emergency treatment received on March 7, 2005, for bronchitis and exacerbation of emphysema as alluded to in a March 2005 VA treatment note. The Veteran should be requested to identify any pertinent treatment and provide release forms as needed. 2. Obtain and associate with the claims file any ongoing VA treatment records and diagnostic reports pertaining to a respiratory disability, to specifically include any records from the Chillicothe, Ohio VA Medical Center and the Portsmouth, Ohio VA Outpatient Clinic dating since October 2009. Appropriate efforts must be made to obtain all available treatment records. All attempts to procure records should be documented in the file. If any records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Thereafter, obtain a VA medical opinion from a pulmonologist as the nature and etiology of any currently diagnosed respiratory disability. The claims folder, to include any relevant records contained in Virtual VA, and a copy of this REMAND must be made available to and reviewed by the examiner. A complete history as to the nature and circumstances of the Veteran's potential exposure to asbestos prior to and following active service should be discussed (see Veteran's statements dated in May 2007 and March 2011). The examiner is to presume that the Veteran was exposed to asbestos during his second period of active service dating from April 1959 to November 1960 and aboard the U.S.S. Platte from November 1959 to August 1960. The examiner should state each respiratory disability diagnosed since April 2007 and provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that each disability had its onset during, was caused or aggravated by, or is otherwise related to any incident of either period of active service, to include an episode of bronchitis and pneumonitis in September and October 1956 and asbestos exposure from November 1959 to August 1960. The examiner should discuss all potential pre- and post-service sources of asbestos exposure that have been indicated by the record. The examiner should also note and discuss the significance, if any, of a finding of mild restrictive lung disease during pulmonary function testing in June 2009; a pre-service occupational history as a farmer; the Veteran's 45+ year history of smoking one half to two packs of cigarettes per day until October 2004; and the May 2012 CT scan finding of apparent pleural plaque on the dome of the right hemidiaphragm. Any opinion expressed must be accompanied by a complete rationale. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examiner must specifically explain why the causation of any current respiratory disability is unknowable. If the examiner concludes that examination of the Veteran is necessary, it should be accomplished. 4. After the development requested has been completed, 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/AMC must implement corrective procedures at once. 5. If necessary, the Veteran is to be notified 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). 6. After the development requested above has been completed, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if 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 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 LANE 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).