Citation Nr: 1313586 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-13 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a chronic lung disability including asbestosis. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In January 2012 and October 2012, the Board remanded the appeal for additional development. 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 The Veteran seeks entitlement to service connection for a chronic lung disability. Specifically, he claims that his current lung problems were caused by his exposure to asbestos working as a pipe-fitter in the Navy. In this regard, the Veteran's DD Form 214 shows that he served in the Navy for four years and that the closest civilian equivalent to his occupational specialty was apprentice pipe-fitter/ship construction. Moreover, the VA Adjudication Procedure Manual lists pipe-fitters and ship construction as the types of occupations that caused asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos;" see also M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases." The post-service evidence of record documents the Veteran being treated for pneumonia in August 2000 as well as a March 2008 computed tomography (CT) scan of the chest which revealed "scattered small reticular and ground-glass opacities" that the radiologist opined may be related to the claimant's asbestos exposure. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). The Veteran was provided a VA respiratory examination in February 2010, at which time the examiner indicated that the Veteran's symptoms were shortness of breath and occasional coughing spells which have progressively worsened over the years. The examiner further emphasized that the Veteran was also a smoker and had been hospitalized for pneumonia for two weeks. Although the examiner stated that the Veteran's current symptoms included increased shortness of breath upon mild-to-moderate exertion, he opined that there was no evidence of current asbestosis-related symptoms and incorrectly stated that service treatment records did not indicate exposure to asbestos. Furthermore, there was no evidence of cor pulmonale, pulmonary hypertension, or right ventricular hypertrophy. In its January 2012 remand, the Board found the February 2010 VA respiratory examination to be inadequate because the examiner neither provided a diagnosis for the "small reticular and ground-glass opacities" seen in the March 2008 CT scan nor provided an opinion as to the probable etiology of the Veteran's post-service problems with pneumonia and "ground-glass opacities." Instead, after incorrectly noting that service records did not indicate asbestos exposure for this pipe-fitter, the examiner merely opined there were no current active asbestos related symptoms. But see McClain, supra. As such, the Board found that a remand was required to obtain a medical opinion as to the diagnoses of all of the Veteran's post-service lung disabilities, and an opinion as to the relationship, if any, between these lung disabilities and his military service including his work around asbestos as a pipe-fitter. Pursuant to the Board's February 2012 remand instructions, the Veteran was provided another VA examination in February 2012, at which time the examiner diagnosed the Veteran with mild chronic obstructive pulmonary disease (COPD) manifested by a mild decrease in diffusion capacity, as well as a pulmonary nodule. Mild emphysema was also identified upon CT scan of the chest. With respect to the pulmonary nodule, the examiner stated that the Veteran would undergo a repeat CT scan in 6 to 12 months to clarify whether the nodule was benign or malignant and whether it was related to COPD. However, the examiner found no evidence of asbestosis, asbestos-related pleural disease or lung disease. Moreover, "small reticular and ground-glass opacities" were not evident on the current CT scan and indicated to no longer be diagnosed. The examiner opined that the Veteran's COPD and pulmonary nodule were less likely as not caused by or due to the Veteran's active duty asbestos exposure or military service. The examiner explained that COPD was more likely due to tobacco use and not caused by asbestos exposure, while the Veteran's pulmonary nodule was of uncertain etiology, as there was not enough information to determine if it was benign or malignant at the time. Finally, the examiner opined that the "small reticular and ground-glass opacities" diagnosed in March 2008 were less likely as not caused by active duty asbestos exposure because they were not present on the recent CT scan and no longer diagnosed. However, in its October 2012 remand, the Board found that the February 2012 VA examination was inadequate because, while the examiner diagnosed the Veteran with COPD, emphysema, and a pulmonary nodule, she did not provide an opinion as to whether the emphysema and/or pulmonary nodule were at least as likely as not (50 percent probability or more) caused by the Veteran's active duty which included asbestos exposure. See 38 U.S.C.A. § 5103A(d) (West 2002) (the Veterans Claims Assistance Act of 2000 (VCAA) requires that VA provide a medical examination or, obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); see also 38 C.F.R. § 3.303 (2011); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). As such, the Board found that another remand to obtain these missing medical opinions was required. Furthermore, as the February 2012 VA examiner reported that there was not enough information to determine the etiology of the pulmonary nodule prior to additional evaluation, and that it would be further evaluated by CT scan in 6 to 12 months, the Board directed that all follow-up medical testing undertaken to ascertain the nature of the Veteran's pulmonary nodule should also be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Pursuant to the Board's October 2012 remand instructions, the Veteran was scheduled for a VA examination in November 2012. However, a review of the claims file suggests that the Veteran did not report to his scheduled VA examination. Regardless of the Veteran's absence from his scheduled November 2012 VA examination, the February 2012 VA examination opinion remains inadequate and cannot currently serve as the basis of a Board decision. 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). Furthermore, the Board notes that the Veteran's presence is not required for the February 2012 VA examiner to issue an addendum to her inadequate February 2012 VA examination report based on a review of the claims file. As such, the Board finds that the claims file should be returned to the February 2012 VA examiner for an addendum opinion consistent with the Board's remand directives. Additionally, also pursuant to the Board's October 2012 remand instructions, the RO requested the Veteran's VA treatment records in October 2012, approximately 8 months following the Veteran's February 2012 examination. As discussed above, the Veteran was expected to undergo a follow-up CT scan anywhere from 6 months (August 2012) to 12 months (February 2013) following the February 2012 examination in order to ascertain the nature and probable etiology of his diagnosed pulmonary nodule. As of October 2012, the results from this CT scan were not available. As the full 12 months has since expired as of February 2013, the RO should again attempt to obtain and associate with the record all medical records related to the Veteran's post-February 2012 testing, treatment, and diagnosis of the pulmonary nodule including all post-February 2012 medical records on file with the Portland VA Medical Center. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC, should obtain all medical records for the Veteran from the VA Medical Center in Portland, Oregon dated from February 2012 to the present. All attempts to obtain these records must be documented in the claims file. 2. After undertaking the above development to the extent possible, the RO/AMC should return the claims file to the author of the February 2012 VA examination report. After a review of the record on appeal the physician should provide answers to the following questions: (1) As to the diagnosed emphysema, is it at least as likely as not (50 percent probability or more) that it is related to the Veteran's active duty including, but not limited to, exposure to asbestos? (2) As to the pulmonary nodule, provide a diagnosis. If a diagnosis is made, then the physician is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it is related to the Veteran's active duty including, but not limited to, exposure to asbestos. In providing answers to the above questions, the examiner must specifically take into account the claimant's in-service work history, which the M21-1MR finds is the type of work which would entail asbestos exposure, as well as his post-service work history and whether it also entailed working in an occupation that would expose him to asbestos. In providing answers to the above questions, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale must be provided for any opinion offered. 3. The RO/AMC should thereafter readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).