Citation Nr: 1313363 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 06-28 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a respiratory disorder, including as due to asbestos exposure. 2. Entitlement to service connection for a psychiatric disorder, including major depression and anxiety disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from March 1972 to August 1973. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating determination of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified during a hearing at the RO before the undersigned in July 2007. A transcript of the hearing is of record. Jurisdiction of the Veteran's case is currently with the VA RO in St. Petersburg, Florida. By way of background, the Board notes that, in an unappealed June 1994 rating determination, the Nashville, Tennessee, RO, denied service connection for asthma and bronchitis and, in a September 1998 rating decision, the RO denied service connection for asthmatic bronchitis. The Veteran appealed the RO's 1998 denial. In a July 1999 decision, the Board, in pertinent part, denied the Veteran's claim for service connection for a respiratory disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) that, in an Order of May 2000, dismissed his appeal as to that claim. The Board decision is, thus, final. 38 U.S.C.A. §§ 7103(a), (b), 7104(a) (West 2002); 38 C .F.R. § 20.1100 (2012). In the August 2005 rating decision, the RO reopened and then confirmed and continued the denial of the Veteran's claim for entitlement to service connection for a respiratory disorder due to asbestos exposure. In October 2008, the Board reopened these claims on appeal and remanded them to the RO via the Appeals Management Center (AMC), in Washington, DC, to obtain unassociated VA treatment records and to complete any further development deemed necessary. In February 2012, the Board remanded the claims to the AMC to provide the Veteran with appropriate VA examinations. Regrettably, the Board must again remand the claims of service connection for a respiratory disorder as due to asbestos exposure and major depression to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND In February 2012, the Board remanded the Veteran's case to the RO, in part, to afford him the opportunity to undergo VA examinations in conjunction with his claims. Unfortunately, the April 2012 VA examination reports are insufficient. Further clarification from the examiners is needed prior to Board consideration of the claims on appeal. Moreover, further development regarding his claimed asbestos exposure is warranted. The Veteran asserts that service connection is warranted for a respiratory disorder as a result of asbestos exposure while in service. He contends that he was exposed to asbestos while in the Navy and stationed aboard the USS ENTERPRISE. In an April 2005 statement, the Veteran contended that asbestos was all around him, in his sleeping compartment; work places, including the refrigerators, freezers, and below the decks. He also reported that he was exposed to chamber gases in boot camp, smoke from firefighting school, and jet fuel that aggravated and worsened his asthma and bronchitis. In January 2006, the Veteran submitted pictures of himself and a shipmate standing next to their sleeping berths, with the asbestos wrapped pipes surrounding them. During his July 2007 Board hearing, the Veteran restated his prior contentions, but added the pictures showed chalky white asbestos hanging off of the exhaust pipe. He indicated that people used to take pencils, poke in to the pipes, and chalky stuff would fall all over the place. There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, chapter 2, section C, paragraph 9 (Jan. 7, 2007) ("VA Manual"). Also, an opinion by VA's Office of General Counsel (OGC) discussed the proper way of developing asbestos claims. See VAOPGCPREC 4-2000 (Apr. 13, 2000). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id., at Subsection (a). The Manual also lists some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id., at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id., at Subsection (b). Inhalation of asbestos fibers can lead to a non-exclusive list of asbestos related diseases/abnormalities: fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id., at Subsection (b). The guidelines provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. VA Manual, paragraph 9(d). The extent and duration of exposure to asbestos is not a factor for consideration. Id., at Subsection (d). Thus, an asbestos-related disease can develop from brief exposure to asbestos or as a bystander. The guidelines further provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease. VA Manual, paragraph 9(e). Rating specialists must develop any evidence of asbestos exposure before, during, and after service. A determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). The Court has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). If the evidence supports a conclusion that the Veteran's current disability, while caused by asbestos exposure, is due to intervening post-service exposure, the opinion must be very specific explaining the basis for this finding. See McGinty, supra. Here, the Board finds that the record does not demonstrate that the Veteran's claim has been sufficiently developed. Although, the Veteran's service personnel records were obtained, the RO/AMC should further attempt to confirm the Veteran's assertions that he was exposed to asbestos during service. Additionally, a rating specialist must develop any evidence of the Veteran's asbestos exposure before, during, and after service. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). An April 2012 VA respiratory diseases examination report indicates that the examiner diagnosed the Veteran with chronic obstructive pulmonary disease (COPD) and opined that it was not due to or related to his service. The examiner reasoned that the Veteran's service treatment records were silent for COPD/emphysema and COPD was not diagnosed until 21 years after active duty (1994). However, a review of the record reflects that the Veteran was treated in service on multiple occasions for respiratory problems and contended that his symptoms began in service and have continued ever since. But, in her opinion, the VA examiner addressed only the symptoms that the Veteran expressed at separation (in August 1973, when he reported having chronic or frequent colds and shortness of breath), and opined that they "can be symptoms of COPD/emphysema or chronic bronchitis but they are non-specific and can also be symptoms of viral URI, sinus conditions, allergies, acute bronchitis and others." She stated that in the vast majority of individuals, COPD is due to smoking cigarettes. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. 38 C.F.R. § 3.102 (2012). Further clarification of the VA examiner's opinion is needed. Additionally, according to the April 2012 VA psychological examination report, the examiner opined that the Veteran's diagnosed disorders of anxiety disorder, not otherwise specified (NOS); depressive disorder, NOS; Benzodiazepine Dependency; and personality disorder NOS, were less likely a not (less than 50/50 probability) caused by or a result of his active service. The examiner reasoned that there was no objective evidence of a diagnosis of major depression or any other depressive disorder found within close proximity to his discharge in 1973. The VA examiner noted that the Veteran checked "yes" to the questions regarding depression or excessive worry and nervousness symptoms he had experienced (on an August 1973 Report of Medical History). The examiner stated that this was not sufficient evidence to state that the Veteran had a mental disorder. However, the VA examiner failed to consider the service physician's summary section of the August 1973 record, in which it was noted that the Veteran had chronic anxiety since coming in to service about a stolen car and associated debts. Additionally, the VA examiner indicated that the Veteran's mood complaints and depression may be associated with his alcohol dependence or prolonged benzodiazepine use, however, included a diagnosis of major depression (a July 1994 VA treatment record includes a diagnosis of major depression and notes that his mood was dysphoric and affect was saddened and that chemical dependency was not a factor). The VA examiner's findings do not reflect adequate consideration and analysis of all relevant evidence of record, to specifically include pertinent medical records such as the above-mentioned service treatment records and post service treatment records that renders the examiner's reasoning/analysis incomplete, if not inaccurate. See Nieves-Rodriguez; see also Coburn v. Nicholson, 19 Vet. App. 427 (2006) (affirming the holding in Reonal v. Brown, 5 Vet. App. 458 (1993), that a medical opinion based on an inaccurate factual premise is of no probative value). Further clarification of the VA examiner's opinion is needed. Furthermore, VA treatment records, dated in February and September 2002, indicate that the Veteran's depression was related to his lung problems that should also be considered by the VA examiner. See Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd 421 F.3d 1346, 1349 (Fed. Cir. 2005) (to the effect that a service connection claim includes all theories under which service connection may be granted); see also Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new etiological theory does not constitute a new claim); Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (an appellant's alternative theories of service connection are encompassed within a single claim). It is also unclear if all the Veteran's VA medical records were obtained. As a result of the Board's February 2012 remand, medical records, dated in November 2008 and electronically available through the VA Compensation and Pension Records Interchange (CAPRI), were uploaded to his Virtual VA eFolder. Recent treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all additional medical records regarding the Veteran's treatment for respiratory and psychiatric disorders at the Tampa VA Medical Center and Brooksville Community Based Outpatient Clinic, dated from November 2008 to the present, and from any additional VA and non-VA medical provider identified from him. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 2. Contact the Department of the Navy Medical Liaison Office, at the following address: Naval Sea Systems Command (SEA 00D), Congressional and Public Affairs Office, 1333 Isaac Hull Avenue SE, Washington Navy Yard, D.C., 20376, and request verification of the Veteran's alleged inservice exposure to asbestos. Enclose a copy of the Veteran's service personnel records, as well as a copy of all of the Veteran's statements and testimony of record in which he describes the ways by which he was allegedly exposed to asbestos. The Liaison Office should be requested to verify the alleged sources of exposure, and must be asked to indicate whether it was likely that the Veteran was exposed to asbestos in the course of his assigned duties. If no such opinion can be given, the service department must so state, and give the reason why. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file by the RO/AMC. The Veteran and his representative must be informed as to the result of these efforts. The Veteran must then be given an opportunity to respond. 3. Thereafter, a rating specialist must develop any evidence of asbestos exposure before, during, and after service. 4. After the above development has been accomplished, the entire claims file, to include a complete copy of this REMAND, should be returned to the April 2012 VA respiratory diseases examiner (or another similarly qualified VA physician), and the examination report should note review of the file (a clinical examination should be performed only if deemed necessary by the examiner). The examiner is requested to address if it is at least as likely as not (50 percent probability or greater) that any current pulmonary disorder is related to the Veteran's active service, including the respiratory problems documented in his service treatment records, or exposure to asbestos, chamber gases in boot camp, smoke from firefighting school, and jet fuel from 1972 to 1973. The examiner is specifically requested to comment on whether any currently diagnosed respiratory disability had its initial manifestation during active service, and opine as to the most likely etiology of his COPD. The examiner should discuss the appellant's Navy service and his post-service history, and any other pertinent risk factors for asbestos-related disease or other respiratory disorders, to include the Veteran's tobacco use. 5. Then, the entire claims file, to include a complete copy of this REMAND, should be returned to the April 2012 VA psychological examiner (or another similarly qualified VA psychologist or psychiatrist), and the examination report should note review of the file (a clinical examination should be performed only if deemed necessary by the examiner). The examiner is requested to address if it is at least as likely as not (a 50 percent probability or higher) that any current psychiatric disability, including major depression and anxiety, had onset during, or is otherwise causally linked to, the Veteran's military service, including indications of depression or excessive worry, nervous trouble of any sort, and chronic anxiety since coming into service reported on his August 1973 Report of Medical History. The examiner should further address if it at least as likely as not (a 50 percent probability or higher) that the Veteran's current psychiatric disorder, including major depression and anxiety, is the result of his respiratory disorder, including COPD. If not, is it at least as likely as not aggravated by his respiratory disorder, including COPD. If aggravated, what permanent, measurable increase in current psychiatric pathology is attributable to the respiratory disorder, including COPD? In answering these questions, please discuss the Veteran's pertinent history as well as all pertinent evidence in the claims file, including all pertinent previous medical opinions. 6. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures. 7. Readjudicate the Veteran's claims on appeal. If any of the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for 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). _________________________________________________ D.J. DRUCKER 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).