Citation Nr: 1321641 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 06-21 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a July 2005 rating decision of the VA Regional Office (RO) in New York, New York that declined to reopen the claim of entitlement to service connection for asbestosis. In June 2009 the Board reopened the claim of entitlement to service connection for asbestosis and remanded the case for further development. The claim was remanded again in November 2010. The case was subsequently referred for a Veterans Health Administration opinion in October 2012. In January 2013 the case was once more remanded for additional development, and is now again before the Board for adjudication. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development. The Board regrets the delay associated with this remand, as this appeal has been the subject of a Board decision and remand and two additional remands. However, a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). As the RO/AMC did not substantially comply with the prior remand instructions, the claim must be remanded again to ensure that all required actions are completed. The Veteran asserts that he has asbestosis or other current lung disorder that is related to asbestos exposure during active duty for which service connection should be granted. The Veteran's service treatment records show that he reported a history of pleurisy and was treated for possible pleurisy in February 1968 and pleurodynia in 1969. The Veteran's possible exposure to asbestos in service and subsequent medical history was discussed at length in the prior Board remand of January 2013. The Board notes that in November 2010 the case was remanded, in part, because a prior order to obtain a medical opinion from a board-certified VA pulmonologist had not been followed. Instead, an opinion was obtained only from a VA physician with no specialization in pulmonology, and was therefore not in substantial compliance with the prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (Although VA is required to comply with remand orders, it is substantial compliance, not absolute compliance that is required.); Stegall, 11 Vet. App. 268. Unfortunately, a similar compliance error has again occurred. The case was remanded in January 2013 in part to obtain a medical examination and opinion from a board-certified VA pulmonologist. The Board remand instructed that the pulmonologist should discuss the Veteran's current respiratory disorders and their possible relationship to his service, and he or she was specifically instructed to address the significance of the 2001 and 2006 CT scan findings, which showed pleural thickening. After the Board remand was issued, the Veteran was afforded a VA examination with a nurse practitioner in February 2013. Chest imaging was performed in March 2013, which the attending radiologist noted showed normal cardiac with no pleural effusion, trace pericardial effusion, clear central airways, mild emphysematous changes with multiple small bullae, mild bronchiectatic changes, a small amount of atelectatic changes/scarring, a trace amount of pleural thickening, and no evidence of discrete pleural plaque. Pulmonary function testing was performed, which found pre-bronchodilator results of FVC 60 percent of predicted and FEV-1/FVC 76 percent of predicted. The nurse practitioner examiner found that the Veteran did not have any current respiratory disorder other than asbestos exposure, by history. She quoted the rationale given in a prior VA opinion from March 2012 and further stated that the chest scan did not show any pleural plaques or other evidence of asbestosis, and that while the Veteran had reduced diffusing capacity (DLCO) upon pulmonary function testing, this result was not supported by the history or X-rays and the significance of this finding was unclear. After reviewing the examination report described above, the Board finds that the RO/AMC did not substantially comply with the January 2013 remand order; the examination was completed by a nurse practitioner and not a pulmonologist, as was clearly directed by the remand order, nor did the examiner fully answer the questions posed. The Board also specifically asked the examiner to discuss the significance of the 2001 and 2006 CT scan findings which showed pleural thickening, but no discussion, other than quoting a former examiner's findings, was given relating to this question. The Board notes that this is the third time that this case has been remanded at least in part due to an inadequate medical opinion. The RO/AMC is instructed to ensure that any new examination reports fully comply with all instructions set forth in this and all prior remands, pursuant to Stegall, 11 Vet. App. at 271, as well as with all VA legal standards governing adequate examinations. See 38 C.F.R. §§ 4.2, 3.159(c)(4) (2012); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by a board-certified VA pulmonologist. The claims folder and a copy of this remand must be made available to the examiner. The examining physician must indicate whether the claims folder is reviewed. All indicated tests and studies should be performed and clinical findings must be reported in detail. The examination report should reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc., in a narrative format. The examiner must respond to the following questions: (a) Does the evidence support a current diagnosis of asbestosis or an asbestos-related disorder? The examiner is specifically asked to address the significance of the 2001, 2006, and 2013 CT scan findings, as well as all results from pulmonary function testing. The physician must explain why the findings are or are not indicative of a diagnosis of asbestosis. The examiner must also comment on the significance of the findings of pleural thickening in prior CT scans. The examiner should note that while the Veteran did not have service aboard a ship, VA has conceded some exposure to asbestos during his service. (b) Does the evidence support a current diagnosis of any other respiratory disorder, to include restrictive or obstructive lung disease or emphysema? If no diagnosis is found, the examiner must discuss why the findings on the Veteran's past CT scans do not support a finding of any respiratory-related diagnosis. (c) The examiner should state whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any currently diagnosed respiratory disorder is related to or had its onset during the Veteran's military service, to include in-service exposure to asbestos and/or in-service treatment for pleurisy and pleurodynia in 1968 and 1969. The examiner must provide both clear conclusions and a reasoned medical explanation supporting his or her conclusions. In rendering the opinion, the examiner should include discussion of the Veteran's documented medical history and assertions, including the February 2006 diagnosis of asbestosis from his private physician. If the examiner opines that any question cannot be answered without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 2. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim, as the original claim will be considered on the basis of evidence of record. 38 C.F.R. §§ 3.158, 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. 3. The RO/AMC must ensure that all medical examination reports and opinions comply with this remand and the questions presented in the request. The RO/AMC must ensure that all examiners documented their consideration of the medical history and reviewed the claims file. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. Thereafter, the RO/AMC should readjudicate the claim. If the benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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). _________________________________________________ CHERYL L. MASON 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).