Citation Nr: 1307158 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 08-23 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a lung disability, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION 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 Veteran served on active duty from July 1950 to April 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board Remanded the appeal in December 2011. In March 2011, the Veteran testified before the undersigned Veterans Law Judge at the RO. 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 In its December 2011 Remand, the Board directed the agency of original jurisdiction (AOJ) to obtain examination and opinion regarding the Veteran's claim that he has a disorder due to exposure to asbestos from a provider who was a certified "B reader." "B reader" certification is provided through the National Institute for Occupational Safety and Health (NIOSH), a program within the Centers for Disease Control and Prevention (CDC). The B reader certification program was mandated by the Federal Mine Safety and Health Act of 1977, as part of the Coal Workers' Health Surveillance Program. B reader certification is available to physicians with a valid state medical license who demonstrate proficiency in the classification of chest radiographs for pneumoconiosis. Pneumoconiosis is defined as a lung disorder caused by deposition of particulate matter (such as asbestosis or coal dust). Dorland's Illustrated Medical Dictionary 1491 (31st ed. 2007). The NIOSH website about the B reader program states that there are currently about 300 certified B readers in practice in the United States. The AMC determined that there was no B reader available within the jurisdiction where the Veteran lived and could report for examination. The VA examination was conducted and opinion rendered by a pulmonary specialist who is not certified as a B reader. However, it appears that one or more B readers are employed by VA; at the time of this Remand, there is apparently one B reader employed at the Los Angeles VAMC and on at the San Diego VAMC. Recognition is given to the fact that there may not be a certified B reader who is employed by VA in the jurisdiction in which the Veteran resides. However, in light of the limited availability of certified B readers, it is the Board's judgment that an opinion from a certified B reader with access to a copy or digital copy of the Veteran's radiologic examination of the chest would be sufficient for substantial compliance with the Board's prior Remand and this Remand. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: (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. Obtain the Veteran's VA outpatient treatment records from September 2011 to the present, and associate the records with the claims files or the electronic file accessible on appeal. 2. Obtain a digital copy of the Veteran's January 2012 radiologic examination of the chest (a copy of the original x-ray, not a copy of the report or interpretation of that x-ray), and associate that digital x-ray, or a copy of the x-ray if non-digital, with the claims file and/or the electronic file accessible on appeal as well as an electronic file available to a VA reviewer. 3. Obtain a copy or digital copy of the Veteran's October 21, 2002 PA and lateral radiologic examinations of the lungs (a copy of each original x-ray, not a copy of the report or interpretations of those x-rays), and associate that copy or digital x-ray with the claims file and/or the electronic file accessible on appeal as well as an electronic file available to a VA reviewer. 4. Obtain a digital copy or copy of any original MRI or CT scan of the Veteran's lungs (a copy of each original examination, not a copy of the report(s) or interpretation(s)) conducted since January 2007 (when the claim underlying this appeal was submitted), and associate each digital radiologic lung examination, or each copy of non-digital x-rays, with the claims file and/or the electronic file accessible on appeal as well as an electronic file available to a VA reviewer. 5. Arrange for the report of the February 2011 VA examination, a copy of the February 2011 radiologic examination of the Veteran's lungs, and a copy of the October 2002 radiologic examination of the Veteran's lungs, at a minimum, and other relevant radiologic examinations of the lungs conducted by VA during the pendency of this appeal, to be reviewed by a pulmonary specialist who is a NIOSH-certified "B reader." There are presently two (2) NIOSH-certified "B readers" employed by the California VA health care system. The claims folder and a copy of this Remand must be made available to the physician 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. Ask the reviewer to assign a diagnosis for each current disorder of the lungs. Based on the review of the examination and review of the radiologic examinations of the lungs discussed above, at a minimum, the B reader reviewer should provide a medical opinion as to whether or not the Veteran has a lung/respiratory disorder due to asbestos exposure, and assign a definitive diagnosis for any/each asbestos-related lung disorder. If it is found that the Veteran does have asbestos-related disorder, the reviewer should provide an opinion as to whether such disorder is, at least as likely as not (50 percent probability or greater), related to asbestos exposure in service. For any lung disorder not found to be related to asbestos exposure is present, the reviewer should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a current lung disorder which, even though not related to exposure to asbestos, was incurred during or as a related of some aspect of the Veteran's period of service. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. 6. Upon completion of the above and any other necessary development, the RO/AMC shall readjudicate the Veteran's claim for service connection for a lung disability, to include as due to asbestos exposure. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and provide an opportunity to respond thereto. The case shall then be returned to the Board, if in order, for further appellate review. 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 A. HERMAN 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).