Citation Nr: 1322829 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 04-33 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a respiratory disorder, to include asbestosis. REPRESENTATION Appellant represented by: Dennis L. Peterson, attorney WITNESS AT HEARING ON APPEAL Appellant, and L.R. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from June 1953 to June 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran appealed, and in August 2007, the Board remanded the claim for additional development. In a September 2008 decision, the Board denied the claim for service connection for asbestosis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision and remand the Veteran's claim for readjudication. In a September 2009 Order, the Court granted the motion, vacated the Board's September 2008 decision, and remanded this case to the Board for readjudication. In April 2010, the Board remanded the claim for additional development. The Veteran testified at a hearing before a Decision Review Officer at the RO in November 2005. In January 2007, the Veteran and L.R., his daughter, testified at the RO before a Traveling Veterans Law Judge who is no longer at the Board. Transcripts of those hearings have been included in the claims folder. In May 2013, the appellant was notified that he was entitled to another hearing. See 38 U.S.C.A. § 7107(c) (West 2002). However, in a statement, received in June 2013, the appellant's attorney stated that the Veteran did not desire another hearing. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND VA has conceded that the Veteran had in service exposure to asbestos. However, there is conflicting evidence as to whether or not the Veteran carries a diagnosis of asbestosis or a chronic respiratory disorder related to asbestos exposure. Two separate VA examinations have clearly stated that there is no evidence of asbestos-related pulmonary disease. However, the record also includes private opinions that diagnosis asbestosis and that relate that diagnosis to the Veteran's military service. "B reader" certification is provided through the National Institute for Occupational Safety and Health (NIOSH), a program within the Centers for Disease Control and Prevention (CDC). B reader certification is available to physicians with a valid state medical license who demonstrate proficiency in the classification of chest radiographs for pneumoconiosis. On remand, the RO should be requested to have a B reader interpret current X-rays for the Veteran. The Board also notes that there is no medical evidence of record dated after 2007, a period of over five years. On remand, the Veteran should be requested to identify all relevant treatment since 2007, followed by an attempt to obtain all identified records. 38 U.S.C. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). 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. Request that the Veteran identify all sources of treatment for his respiratory symptoms since 2007 (i.e., since the most recent medical evidence of record). After obtaining all necessary authorizations, the RO should attempt to obtain these identified records and associate them with the Veteran's claims file. If the RO is unable to make contact with any identified private health care providers, or if no response is received from them within a reasonable amount of time, the RO should document such results in the claims file. 2. After the development directed in the first paragraph of this remand is completed, the Veteran should be afforded an examination by a physician. The physician should obtain a detailed history of service and post-service asbestos exposure from the Veteran. Chest X-rays should be taken, and any other appropriate and necessary diagnostic testing should be completed. 3. Following the development directed in the first and second paragraphs of this remand, the Veteran's chest X-ray films should be provided to a NIOSH-certified Class B reader to diagnose or rule out asbestosis (or any asbestos-related disorder). If the Phoenix VA medical center (VAMC) does not have a certified B-reader on staff, the RO should make arrangements to forward the Veteran's chest X-ray films, and the claims file, to an appropriate VAMC that does have a B-reader able to interpret the X-rays to diagnose or rule out asbestosis (or asbestos related illness). The B reader should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has asbestosis, or any other asbestos-related lung disorder. A comprehensive report including a complete rationale for all opinions and conclusions reached must be provided. 4. Following the development directed in the first three paragraphs of this remand, the physician who conducted the examination as directed in the second paragraph of this remand is requested to provide an opinion as to: a) Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has asbestosis, or any other asbestos-related lung disorder. b) If, and only if, the Veteran is determined to have asbestosis, or any other asbestos-related lung disorder, the examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran's asbestosis, or other asbestos-related lung disorder (as appropriate), is related to asbestos exposure during service from June 1953 to June 1957. The physician must provide a comprehensive report including a complete rationale for all opinions and conclusions reached. The claims folder must be made available to the examiner for review in conjunction with the examination, to include a copy of the "B reader's" report, as discussed in the second paragraph of this remand, and the examination report must note that review. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC). The appellant should be given an opportunity to respond to the SSOC. 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. HERMAN 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).