Citation Nr: 1312635 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 08-33 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from May 1944 to February 1946. This matter comes before the Board on appeal from an October 2007 rating decision of the Department of Veterans Appeals (VA) Regional Office (RO) in Louisville, Kentucky. In May 2010, April 2011, and January 2013 the Board remanded the claim for further development or action. 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 Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a respiratory disorder, to include as due to asbestos exposure in service. The Veteran served in the Navy and exposure to asbestosis is presumed. Service treatment records do not reflect a chronic respiratory disorder to include asbestosis. The record shows that the Veteran currently has chronic obstructive pulmonary disease (COPD), but that there are no medical findings for asbestosis. In May 2010, the Board remanded this case for a VA examination and medical opinion to determine whether the Veteran has a respiratory disorder related to service to include asbestos exposure in service. A July 2010 VA examination report reflects a diagnosis for COPD and the examiner opined that this was less likely as not caused by or a result of service. His rationale was that there was no objective evidence of asbestosis of the lungs and that "there is not evidence to suggest the [V]eteran's copd is related to military service." In April 2011, the Board remanded this case to obtain an addendum to the July 2010 VA report of examination, to include a complete rationale for the opinion that "COPD is unrelated to service." See Board Remand Decision dated April 2011 at 3. In an August 2011 addendum report, the preparing VA physician indicated that his review of the claims files shows that the Veteran had chronic respiratory problems for many years, "probably due to mixed bronchitis/emphysema COPD." Under a section titled "OPINION," the physician cited pulmonary function test findings, statistic on smoking versus nonsmoking patients with COPD that die from the disease, and he noted that the Veteran was a nonsmoker. Then the physician concluded: As stated above there is no evidence in the available records of any respiratory difficulties during his active service. There is nothing to support the contention that he acquired this disorder in the service or that some specific insult or conditions incurred during that service led to the disorder. He reported that "[m]y opinion regarding the claimed 'asbestosis' is unchanged." The Board has carefully considered the medical opinions rendered in July 2010 and August 2011. These medical opinions are bereft of any rationale that the Board may rely upon in a decision. A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the August 2011 VA examiner failed to connect the Veteran's medical history or the medical findings of record (or lacking therein) with his conclusion that COPD is less likely than not related to service. Also, while he cited pulmonary function findings, statistic on smoking versus nonsmoking patients with COPD that die from that disease, and he noted that the Veteran was a nonsmoker, the examiner failed to indicate the significance of these factors-if any-in his conclusion. Furthermore, he reported that COPD is "probably due to mixed bronchitis/emphysema COPD," but he did not opine on whether these conditions are related to service or asbestos exposure. Also, the relevance of the finding that the Veteran's tests were negative for asbestosis in the context of the claim for COPD as secondary to asbestosis exposure is unexplained. Therefore, remand is required as there has not been substantial compliance with the Board's prior remand decisions. It is noted that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 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 RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records. All efforts to obtain additional evidence must be documented in the claims folder. If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. Then arrange for the same examiner who rendered the August 2011 addendum report to provide an additional report, which includes a complete rationale for his medical opinion that COPD is less likely than not related to service to include asbestos exposure. The claims files and any pertinent evidence in Virtual VA that is not included in the claims files should be made available to the physician. Specifically, the examiner should express an opinion with a complete rationale on the following: * Whether any respiratory or pulmonary disorder shown during the appeal period, to include COPD, is as likely as not (50 percent or greater probability) related to service to include asbestos exposure in service. In the context of his opinion, the examiner should explain the significance, if any, of his prior citing of the Veteran's pulmonary function test findings, the statistic on smoking versus nonsmoking patients with COPD that die from that disease, and that the Veteran was a nonsmoker. In the context of his opinion, the examiner should explain the significance, if any, of the finding that asbestosis of the lungs is not medically shown. A complete rationale for all opinions is required. That is, the physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., that he relied upon in reaching his conclusions. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible. If the August 2011 examiner is not available, the claims files should be forwarded to another appropriate VA physician, who should be instructed to provide the required opinions with supporting reasons. Another examination of the Veteran should only be performed if determined to be necessary by the person providing the opinion. 3. The RO/AMC should also undertake any other development it determines to be warranted. 4. Then, the AMC/RO should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ LANA K. JENG 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).