Citation Nr: 1322108 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 06-15 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a respiratory disability, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from November 1958 to October 1962. This matter came before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction over the Veteran's claims file currently resides with the New York, New York RO. The Veteran testified before a Veterans Law Judge (VLJ) in September 2008. A transcript of his hearing has been associated with the record. In September 2011 the Veteran was advised that the VLJ who conducted his hearing was no longer employed by the Board, and was provided an opportunity to request an additional hearing. In November 2011 the Veteran responded that he did not desire an additional hearing. In February 2012 the Board denied entitlement to service connection for diabetes mellitus and remanded the instant claim of entitlement to service connection for a respiratory disability for additional development. The appeal was again remanded in January 2013 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 service connection for a respiratory disability, asserting that asbestos exposure during service caused a current disability. An April 1993 letter from S.M.L., M.D. at Mt. Sinai Medical Center, indicates that X-rays taken in March 1993 demonstrated evidence of scarring of the chest wall bilaterally of the kind seen after asbestos exposure. Dr. L. noted that he had also reviewed the report of a December 1992 CT scan, and would be interested in reviewing the actual films. In May 1997, J.S., M.D., from Mt. Sinai, reported to the Veteran that the results of a March 1997 examination at Mt. Sinai were available. Dr. S. noted that examination of the Veteran's chest and lungs revealed no abnormalities, and that chest X-rays and breathing tests also revealed no abnormalities. Dr. S. indicated that the Veteran had reported that he had quit smoking and that such was wise in light of asbestos exposure. He noted that although the Veteran showed no signs of asbestos-related disease at that time, it was possible that he might develop scarring in his lungs in the future. He recommended repeat examination on an annual basis. In April 1999 Dr. S. indicated that examination of the Veteran's chest and lungs revealed a prolonged expiratory phase. He noted that X-rays showed fibrosis (scarring) of the kind commonly seen after asbestos exposure. Spirometry showed no abnormalities. Dr. S. advised that even if the Veteran had no further asbestos exposure, he might develop additional scarring in his lungs in the future. He advised annual examinations. In March 2000, A.R., M.D., from Mt. Sinai, reported that examination of the veteran's chest and lungs showed no abnormalities. He indicated that chest X-rays showed scarring involving the pleura of the kind commonly seen after asbestos exposure. He noted that even if the Veteran had no further asbestos exposure, he might develop additional scarring in his lungs in the future. He advised annual examinations. A December 2001 VA treatment record reflects that the Veteran was diagnosed with asbestosis at Mt. Sinai by MRI. The provider noted that the Veteran had marked exposure from high school through service, and afterward as a heating mechanic. The Veteran was examined by N.I.R., M.D., a pulmonologist, in May 2002. He reported a history of asbestos exposure starting in childhood, noting that the house in which he lived was heavily contaminated. He related that it was only recently renovated. He also reported extensive exposure to asbestos during his time in the Air Force, and following service. He indicated that he smoked starting at age eight until he was 49, two to three packs per day. He endorsed a chronic cough that produced a small amount of sputum daily for the previous 10 years. He complained of shortness of breath and noted that he had frequent episodes of bronchitis. Physical examination revealed somewhat diminished breath sounds. Dr. R. noted that he heard no wheezing. He indicated that pulmonary function tests revealed minimally reduced vital capacity and total lung capacity. There was no response to inhaled bronchodilators. The diffusing capacity for carbon monoxide was moderately reduced, and oxygen saturation at rest was 94 percent. X-rays showed extensive bilateral pleural plaques but no distinct calcifications. He indicated that there was a pattern of diffuse interstitial or nodular changes. He diagnosed asbestos related pleural disease and asbestosis. In July 2002, S.L., M.D., from Mt. Sinai, related that examination of the Veteran's chest revealed an increased diameter (barrel chest) and hyperresonance on percussion. He noted that chest X-rays showed scarring involving the pleura of the kind commonly seen after asbestos exposure. He noted that even if the Veteran had no further asbestos exposure, he might develop additional scarring in his lungs in the future. He advised annual examinations. He noted that it was important that a chest X-ray be read by a physician trained in X-ray diagnosis of occupational lung diseases. A VA X-ray report dated in September 2002 provides an impression of prominent bronchovascular markings. A VA examination was carried out in January 2011. The examiner noted that a November 2010 X-ray study was unremarkable. She did not discuss the results of pulmonary function tests conducted in February 2011. She concluded that there was no current diagnosis of a respiratory disorder. While she acknowledged a previous finding of pleural fibrosis, she did not reconcile the previous findings by various physicians of X-ray evidence of pleural scarring of the sort found in individuals exposed to asbestos. Moreover, the credentials of the individual who reviewed the November 2010 X-ray study are not clear. Specifically, it is unclear whether the individual who reviewed the VA X-ray study was qualified in X-ray diagnosis of occupational lung diseases, as urged by the Veteran's Mt. Sinai physician. As such, the Board finds that the examination is inadequate, and that an additional pulmonary examination must be carried out. In its February 2012 remand, the Board directed that an additional VA examination be carried out. The Board specified that if it was determined that there was no diagnosis, the examiner was required to discuss the previous diagnoses of asbestosis and pleural disease. On examination in March 2102, the nurse practitioner who examined the Veteran stated that he had been diagnosed with asbestos exposure. Current X-rays, reviewed by a VA attending physician, were negative for any acute cardiopulmonary pathology. The examining nurse practitioner stated that there was no current respiratory condition related to asbestos exposure. She acknowledged the previous private records but concluded that there was no evidence of pleural disease, fibrosis, or lung nodules on chest X-ray and that examination of the lungs was normal. She did not provide a discussion of the previous findings and how they comported with her determination that there was no current pulmonary pathology. In January 2103 the Board determined that the previous examinations were inadequate for the purpose of deciding the Veteran's claim. The appeal was remanded for an additional examination. The Board specified that the examination should be by a pulmonologist, on a fee basis if necessary. The Board further indicated that X-ray studies should, if possible, be interpreted by a physician trained in X-ray diagnosis of occupational lung diseases. The record reflects that a VA examination was conducted in February 2013, not by a pulmonologist, but by the same nurse practitioner who had examined the Veteran in March 2012. Moreover, the examiner acknowledged only the statements and findings by Dr. N.I.R as supportive of the Veteran's claim. The Board, however, observes that other physicians, to include Dr. S.M.L. and Dr. S. had previously identified fibrosis and scarring. The discussion provided by the nurse practitioner did not reconcile these conflicting findings. The February 2013 VA examination was not in compliance with the Board's January 2013 remand order. As such, the case must again be remanded for action that complies with the Board's previous order. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Secondly, the Board recognizes the principal that in the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). In that regard, the Board also recognizes the recent decision of the U.S. Court of Appeals for Veterans Claims' decision in Romanowsky v. Shinseki, No. 11-3272 (U.S. Vet. App. May 9, 2013) which held that a claimant satisfies the current disability threshold when a disability exists at the time his or her claim was filed, even if the disability resolves prior to VA's adjudication of the claim. In light of the holding in Romanowsky, there is a question as to whether the findings reported by Dr. S.M.L. (scarring of the chest wall), Dr. A.R. (pleural scarring), and Dr. N.I.R. (extensive bilateral pleural plaques), resolved prior to the filing of the Veteran's claim in March 2004, or if not, whether such findings were indicative of a respiratory disability related to service that was in existence during the pendency of the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Accordingly, the case is again REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a pulmonologist, on a fee basis if necessary, to determine whether he now has, or has ever had at any time during the pendency of his claim any respiratory disability that is related to service. The claims folder should be forwarded to the examiner for review, and the examiner should be directed to elicit a complete history from the Veteran, the details of which should be included in the report. All necessary testing should be conducted, to include X-ray studies. Those studies and any previous studies should, if possible, be interpreted by a physician trained in X-ray diagnosis of occupational lung diseases. If this is not possible, an explanation should be provided in the examination report. Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all currently present respiratory disabilities. If there is a current diagnosis, the examiner must comment on the Veteran's asbestos exposure history, to include exposure both prior and subsequent to service as well as during service. The examiner should then provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any such disability is related to any disease or injury in service, to include exposure to asbestos. If there is no currently diagnosed respiratory disability, the examiner must reconcile this lack of diagnosis with previous findings of asbestosis and pleural disease made by pulmonologists and physicians specializing in occupational lung diseases, and specifically provide an opinion as to whether it is as likely as not that the Veteran has ever had during the pendency of his claim (from March 2004) a respiratory disorder, including asbestosis, that can be related to his period of service. The examiner should also be requested to provide a discussion of whether findings such as scarring of the chest wall or pleura, fibrosis, and pleural plaques are subject to resolution such that subsequent examination would reveal no respiratory disorder. A discussion of the reasons behind any opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. The Veteran is hereby 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 a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Upon completion of the examination ordered above, review the examination report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Then, readjudicate the claim on appeal, with application of all appropriate laws, r egulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). _________________________________________________ MICHAEL A. PAPPAS 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).