Citation Nr: 1319190 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 12-13 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lung disease, to include asbestosis. ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1942 to January 1946. This matter initially came before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for asbestosis. In December 2012, the Acting Chairman of the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In January 2013, the Board remanded this matter for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In his May 2012 substantive appeal (VA Form 9), the Veteran raised the issue of entitlement to non service-connected pension. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in May 2010 to assess the nature and etiology of his claimed lung disease. He was diagnosed as having "positive exposure to asbestosis while in the Navy in WWII" and a problem associated with this diagnosis was noted as being "asbestosis." The physician assistant who conducted the examination explained that the Veteran had conceded exposure to asbestos in service and that his chest X-ray was consistent with exposure to asbestos. However, his pulmonary function testing which was conducted during the May 2010 examination was normal and the findings were consistent with exposure to asbestos without evidence of asbestosis. In July 2010, the examiner who conducted the May 2010 VA examination provided a diagnosis of a history of asbestosis exposure with chest X-ray evidence of calcification of both hemidiaphragms consistent with exposure to asbestosis and normal pulmonary function testing. She explained that there is a difference between plaques (a benign radiographic finding) and asbestosis. Interstitial abnormalities are the X-ray feature that, together with altered gas transfer and reduced lung volumes, would support a diagnosis of asbestosis. The X-ray findings of pleural plaques/calcification of the hemidiaphragms were supportive of asbestos exposure, but there were no interstitial changes shown. Plaques with normal pulmonary functions should not result in any symptoms or disability. The Veteran was afforded a second VA pulmonary examination in April 2013. Interstitial lung disease (which includes asbestosis) was not identified as being a current diagnosis. However, the only diagnosis which was provided was "pleural plaquing/asbestosis" based on a history of asbestos exposure, pleural plaquing, and normal pulmonary function tests. The physician who conducted the April 2013 VA examination opined that she could not resolve the question of whether the Veteran's pleural plaquing was related to in-service asbestos exposure without resorting to mere speculation. She reasoned that asbestos exposure in service was conceded, but that the Veteran had also experienced significant asbestos exposure in his post-service occupation. Thus, it would be merely speculative to opine as to the extent to which his "current respiratory condition/symptoms/disability" was related to in-service asbestos exposure as opposed to post-service exposure. The April 2013 VA examination is inadequate because it contains contradictory information as to whether the Veteran has a current lung disease. Specifically, the Veteran was not diagnosed as having any interstitial lung disease (including asbestosis). However, the diagnosis that was provided included "pleural plaquing/asbestosis." Additionally, a July 2012 private treatment record from Brevard Health Center (Brevard) includes a diagnosis of acute bronchitis. The April 2013 examiner did not acknowledge or discuss this diagnosis or provide any opinion as to the etiology of the diagnosed bronchitis. In this respect, the requirement for a current disability is satisfied if there is evidence of the disability at any time since the Veteran's claim of service connection was received in February 2010, even if the disability is currently in remission. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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). Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In a January 2013 letter, the Veteran was asked to identify any relevant post-service private medical treatment received for his claimed lung disease and to complete the appropriate release form so as to allow VA to obtain records of any such treatment. In response to this letter, he provided a list of diagnostic procedures which had been conducted between November 2010 and January 2013. This list included a chest X-ray conducted in June 2012 and CT scans conducted on July 2, 2012 and July 25, 2012. These procedures all reportedly contained findings pertinent to the lungs. However, records of these procedures are not currently in the claims file and the location at which they were performed was not identified. Also, the Veteran submitted a summary report of treatment received in July 2012 at Brevard. This report includes a diagnosis of acute bronchitis. There are no additional treatment records from Brevard in the claims file. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain such records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). Inasmuch as the appeal is being remanded for other reasons, there is an opportunity to ask the Veteran to clarify the identity of the treatment providers who conducted the CT scans and chest X-rays in June and July 2012 and to submit the appropriate release forms so as to allow VA to obtain all relevant treatment records from these treatment providers and Brevard. Accordingly, the case is REMANDED for the following action: (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. Ask the Veteran to identify the location and name of the medical facilities where chest X-rays and CT scans were conducted in June 2012 and on July 2, 2012 and July 25, 2012. The Veteran shall also be asked to complete authorizations for VA to obtain all records of his treatment for a lung disease from Brevard Health Center and from any other sufficiently identified private treatment provider. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, ask the examiner who conducted the April 2013 VA examination to review the claims file, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, and provide a new opinion as to the nature and etiology of any current lung disease. The opinion provider shall answer all of the following questions: (a) Does the Veteran have current asbestosis (i.e. has asbestosis been present at any time since February 2010, as opposed to only benign pleural plaques)? (b) With respect to each current lung disease identified (i.e. any lung disease diagnosed since February 2010, including bronchitis and any asbestosis), is it at least as likely as not (50 percent probability or more) that the current lung disease had its onset in service, is related to the Veteran's conceded exposure to asbestos in service, or is otherwise the result of a disease or injury in service? In formulating the above opinions, the opinion provider must acknowledge and comment on all lung diseases diagnosed since February 2010 (including the diagnosis of bronchitis provided in July 2012 at Brevard Health Center and any asbestosis), the Veteran's conceded exposure to asbestos in service, his exposure to asbestos in the years following service, and his history of tobacco use. The opinion provider must provide reasons for each opinion given. The opinion provider is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the opinion provider rejects the Veteran's reports regarding symptoms, the opinion provider must provide a reason for doing so. If the opinion provider determines that he or she cannot provide an opinion without resorting to speculation, the opinion provider shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the opinion provider be undertaken so that a definite opinion can be obtained.) If the April 2013 examiner is unavailable or otherwise unable to provide the requested opinions, the Veteran shall be afforded a new VA examination to obtain the necessary opinions. 3. The AOJ shall review the opinion/examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 4. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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 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). _________________________________________________ J. A. MARKEY 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).