Citation Nr: 1313627 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-50 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a lung disorder, to include as due to exposure to asbestos. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran seeks to establish his entitlement to service connection for asbestos-related lung disease. The RO has determined that the Veteran has a high probability of asbestos exposure as a result of his naval military duties as a boilermaker and fireman. VA has issued a circular on asbestos-related diseases (DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988)) (DVB Circular), which provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in the VA Adjudication Procedure Manual and Manual Rewrite. See Adjudication Manual, M21-1, part VI, para. 7.21 (October 3, 1997); Manual Rewrite, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006); see also VAOPGCPREC 4- 00 (April 13, 2000). The guidelines provide that the latency period for asbestosis varies from 10 to 45 years between first exposure and development of the disease. Also of significance is that an asbestos-related disease can develop from brief exposure to asbestos or from being a bystander. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual Rewrite states: "During World War II (WWII), several million people employed in U.S. shipyards and U.S. Navy Veterans were exposed to crystallite products as well as amosite and crocidolite since these varieties were used extensively in military ship construction." M21-MR, Part IV.ii.2.C.9.g. The record reflects that the Veteran has received monetary settlements with various entities associated with the asbestos industry, presumably on the basis that the Veteran manifests an asbestos-related pulmonary disease due to his civilian occupation as a boilermaker. Evidence which tends to support an asbestosis-related pulmonary disability involves a September 1992 letter from M.C., M.D., of The Austin Diagnostic Clinic, which provided the following opinion: I reviewed the chest x-rays on [the Veteran] dated 06-02-92 for a B-reader interpretation. These are a film quality 2 due to overpenetration and overlying scapulae. There are parenchymal abnormalities consistent with asbestosis, namely small opacities of a shape and size s/t in the mid and lower lung zones and of a perfusion 1/0. There are no pleural abnormalities. There are no other abnormalities. Additionally, a February 1994 attorney letter refers to an examination report from Dr. P.H. who "confirmed" that the Veteran manifested an asbestos-related disease. However, a January 1994 evaluation by Dr. P.H.H., M.D., stated that the Veteran "may have Pulmonary Asbestosis, but without rales on chest exam this diagnosis is a bit more tenuous." On the other hand, VA examiners in March 2009 and April 2010 concluded that the Veteran did not manifest an asbestos-related disease. These opinions were based, in part, on a June 2009 B-reader chest radiograph interpreted as negative for asbestosis as well as pulmonary function testing (PFT). The April 2010 VA examiner provided the following rationale: The Veteran has a diagnosis of chronic obstructive pulmonary disease [COPD]. This type of pulmonary disease is most consistent with that caused by cigarette smoking. The Veteran does have a 50-year history of smoking cigarettes. Asbestosis diagnosis requires the findings of a reliable history of exposure as well as findings of interstitial fibrosis which would be manifested by either end-expiratory crackles, which the Veteran does not have, reduced lung volumes, and/or diffusing capacity of lung for carbon monoxide, which is not present in this Veteran, or the presence of typical chest x-ray or high resolution CT findings of interstitial lung disease. The Veteran does not meet the criteria for diagnosis of asbestosis at this time. However, he does meet the diagnosis qualifications and criteria for chronic obstructive pulmonary disease which is most likely due to smoking cigarettes. This then is the specific diagnosis for the Veteran's respiratory disability. In this examiner's opinion, the respiratory disability is less likely than not due to the probable asbestos exposure as a fireman and boilermaker in the service. This is due to the lack of criteria to establish the diagnosis of asbestosis, and due to the presence of pulmonary function testing which is consistent with the diagnosis of chronic obstructive pulmonary disease which is most likely due to more than 50 years of cigarette smoking. On review of the record in its entirety, the Board finds that further clarifying opinion is necessary prior to making a determination in this claim. The April 2010 VA examiner asserted that reduced lung volumes and/or diffusing capacity of lung for carbon monoxide were criteria for establishing a diagnosis of asbestosis. The record includes the finding from Dr. P.H.H. in 1994 that PFT demonstrated a tendency towards a reduced diffusion capacity. The most recent PFT performed by VA in April 2010 was interpreted as showing a reduced vital capacity suggestive of a restrictive defect or air trapping. The Board does not find that any specific evaluation was conducted for diffusing capacity of the lung for carbon monoxide (DLCO), which clearly was not conducted in PFT testing performed at the March 2009 VA examination. Additionally, neither of the VA examiners discussed the significance of the June 1992 B-reader interpretation of parenchymal abnormalities consistent with asbestosis involving small opacities of a shape and size s/t in the mid and lower lung zones and of a perfusion 1/0. Thus, the Board finds that additional findings are necessary to clarify whether the Veteran manifests a restrictive lung defect as suggested by some evidence of record, and a request for high resolution CT scan of the chest to resolve the conflicting B-reader interpretations, if available. On remand, the Board also notes that the VA clinic records associated with the claims folder do not reflect the Veteran's treatment for COPD as reported by the Veteran and VA examiners. In this regard, the Veteran indicated that he was being treated at the VA facility in Oklahoma City, Oklahoma. The AOJ must ensure that all relevant VA clinic records pertaining to COPD treatment are associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. Determine the Veteran's first date of VA treatment for COPD and/or a lung disorder, and associate all relevant records from the VA facility in Oklahoma City, Oklahoma, pertaining to COPD and/or a lung disorder treatment since that time. 2. Upon completion of the above, schedule the Veteran for examination by an appropriate medical doctor to determine whether the Veteran manifests a lung disorder as a result of asbestos exposure. The claims folder contents (paper and electronic) must be made available to the examiner for review. The examiner should conduct all appropriate testing, to include PFT testing for evaluating reduced lung volumes and diffusing capacity of lung for carbon monoxide. The Veteran should also be afforded high resolution CT scan of the chest, if available. Following all necessary testing, physical examination of the Veteran and review of the claims folder contents, the examiner is requested to provide opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran manifests a lung disorder related to his presumed high probability of asbestos exposure in service? In addressing this question, the examiner must address the following: * the significance of the findings from the B-reader interpretation of a June 1992 chest x-ray; * the 1994 opinion from Dr. P.H.H. that PFT testing demonstrated a tendency towards a reduced diffusion capacity; and * whether current PFT testing demonstrates reduced lung volumes and diffusing capacity of lung for carbon monoxide consistent with asbestos-related pulmonary disease. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the record. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).