Citation Nr: 1309480 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 08-25 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disability to include as due to claimed asbestos and chemical exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from January 1944 to November 1946, and from March 1951 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2009, the Veteran testified at a Travel Board hearing before the undersigned. In a June 2011 decision, the Board denied the issue on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court, in a September 2012 Order, vacated the Board's June 2011 decision and remanded the matter to the Board. 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 & Supp. 2012). 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, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. As noted by the Court, the Veteran submitted a private medical opinion from Dr. Herman N. Shah, M.D., P.A., which is dated May 2011, prior to the Board's June 2011 decision. However, the opinion letter as well as associated pulmonary function tests (PFTs) were not associated with the record at the time of the Board decision. Thus, this matter has been returned to the Board. The Veteran asserts that his lung disease is etiologically related to service, to include claimed inservice asbestos and chemical exposure while aboard the USS Hancock vessel and while working in the ship's laundry room. Since this case involved complex medical questions, the RO afforded the Veteran a VA examination in August 2010. The VA examination included a physical examination, chest x-rays, PFTs, and medical literature review which overall yielded a diagnosis of COPD. The x-rays revealed linear changes suggesting old scarring at the left lung base, but without evidence of active disease. The PFTs suggested moderate obstructive lung impairment. The physical examination indicated the presence of COPD. The examiner opined that it was less likely as not the COPD was related either to inservice asbestos or chemical exposures. The examiner explained that those types of exposures result in interstitial lung disease. The Veteran had obstructive lung disease, per this examination. In contrast, the opinion of Dr. Shah indicated that the Veteran had moderate restrictive lung disease which he opined was as likely to be from previous military services. Dr. Shah included PFTs which were dated in November 2010. These PFTs post-date the VA examination. The PFT report indicated that eh Veteran had a mild obstruction as well as low vital capacity, possibly from a concomitant restrictive defect. In essence, the VA and the private physicians reached different conclusions regarding the Veteran's current diagnosis. The basis for the negative opinion from the VA examiner was due to examination and testing which yielded a diagnosis of obstructive lung disease. The private physician did not provide specific rationale for his conclusion that current lung disease was service-related, but stated that the Veteran had restrictive lung disease. His associated PFTs indicated obstruction, but also a possible restrictive defect. In light of the foregoing, the Board finds that the Veteran should be provided with an opportunity to provide a more thorough medical opinion. In addition, the Veteran should be afforded a VA lung examination which includes a review and discussion of the prior VA medical examination report as well as Dr. Shah's report and PFTs. In order to resolve the current diagnosis due to the varying reports, the VA examination should include new and current chest x-rays, a computerized tomography (CT) and PFTs. (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.) The case is REMANDED for the following action: 1. The Veteran should be notified that he may provide a more thorough medical report or opinion or supplement Dr. Shah's medical opinion. 2. Schedule the Veteran for a VA lung examination to determine the nature and etiology of any current respiratory disability. Any indicated tests, including x-rays if indicated, should be accomplished. In particular, chest x-rays, as well as a CT and PFTs should be performed. The examiner should review the record prior to examination. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current respiratory disability had its clinical onset during service or is related to any in-service disease, event, or injury, to include due to claimed inservice exposure to asbestos and chemicals. The examiner review and discuss the prior VA medical examination report as well as Dr. Shah's report as well as the pertinent PFTs. The examiner should provide a complete rationale as to the basis for the current diagnosis, indicating whether the Veteran has obstructive or restrictive lung disease and its etiology. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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 2002 & Supp. 2012). _________________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).