Citation Nr: 1323763 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-32 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a respiratory disorder, to include as due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In a June 2007 letter, the RO in Chicago, Illinois notified the Veteran of that determination and of his appellate rights. Jurisdiction remains with the RO in Chicago, Illinois. In March 2012, the Board remanded this issue as well as issues of entitlement to service connection for hearing loss and tinnitus to the RO via the Appeals Management Center (AMC), in Washington, DC. for further development. In a November 2012 decision, the RO granted service connection for hearing loss and tinnitus, thus resolving the appeal as to those issues. Unfortunately, another remand is necessary with regard to the remaining issue and therefore, the appeal is again REMANDED to the RO via AMC. VA will notify the Veteran if further action on his part is required. REMAND A remand is required because there was not compliance with a directive of the March 2012 remand. See Stegall v. Derwinski, 11 Vet. App. 268, 271 (1998). More fundamentally, VA has not satisfied its duty to assist the Veteran in providing an adequate medical examination to substantiate his claim. 38 U.S.C.A. § 5103(A)(d) (West 2002 & Supp. 2012). In the March 2012 Remand, the Board directed that VA must provide an examination to determine the nature and etiology of any respiratory disorder suffered by the Veteran. It stated that the examiner should either diagnose or rule out a respiratory disorder and if one was diagnosed to provide an opinion as to whether the disorder had onset during his active service or was caused by his conceded in-service exposure to asbestos, or was otherwise related to his active service. VA provided an examination in April 2012. The examiner determined that the Veteran does have a diagnosis of a respiratory condition but stated that she was unable to state exactly what the condition was without more testing. She stated that the testing was beyond the scope of the compensation and pension examination and that the testing had to be done by his primary care physician. She referred to a chest x-ray study that showed a mass and a patchy infiltrate in his left lung field. She then stated that there was no evidence of signs of asbestosis and opined that his respiratory condition was due to cigarette smoking rather than his active service. For several reasons, this is not an adequate examination and opinion. First, the examiner did not provide a diagnosis of his respiratory condition, but merely stated that he had a respiratory condition. This does not comply with the remand directive. Second, she indicated that additional testing was required but no additional testing was performed. Referring him for additional testing by his primary care physician is not an adequate examination. Third, she offered an opinion as to whether his chest x-ray showed asbestosis, but there is no evidence that the examiner is a certified B-reader or that his x-ray study included interpretation by a B-reader. Fourth, she provided an opinion based on what appears to be insufficient facts because she did not identify from what respiratory condition or conditions the Veteran suffers. Therefore, a remand is necessary for VA to provide an adequate examination and obtain an adequate opinion. The Veteran should be examined by a pulmonologist, if possible, and chest x-rays must be interpreted by a physician certified as a B-reader. Additionally, it is unclear as to whether the Veteran has received VA treatment. In the October 2012 supplemental statement of the case, the AMC listed "VA treatment records" under a heading of Evidence. The April 2012 examination report indicates that the Veteran's claims file and "CPRS" medical records were reviewed. A report of an April 2012 audiology examination indicates that the claims file was reviewed and there were no VA treatment records, or any other records, reviewed that were not in the claims file. There are no treatment records associated with the claims file. It is therefore unclear as to whether the Veteran has been treated by VA. If he has, then any such records relevant to the issue on appeal must be associated with the claims file. This must be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that he inform the RO/AMC as to whether he has ever received treatment by VA relevant to his respiratory disorder, and if so, to identify the dates and locations of such treatment. 2. Then, request any records identified by the Veteran. If the Veteran does not respond, request records of relevant treatment from the VA health care system that includes Loves Park, Illinois, for the period since May 2007, and from the VA health care system that includes Fargo, North Dakota, for the period prior to May 2007. If no records are obtained, obtain negative responses for all requests. Efforts to obtain the records must continue until the records are obtained or negative responses are received. Associate records obtained or negative responses with the claims file. 3. After completing the above development, ensure that the Veteran is scheduled for an examination to determine the nature and etiology of his respiratory disability. The examination should be conducted by a pulmonologist, if possible. Chest x-rays must be submitted to and interpreted by a physician certified as a B-reader. The examination report must document that the physician who interpreted the x-rays is certified as a B-reader. All tests necessary to diagnose the Veteran's respiratory condition should be conducted. The examiner is asked to accomplish the following: (a) Identify any and all respiratory conditions suffered by the Veteran. This identification must be by diagnosis; a general statement that he has a "diagnosed respiratory condition" is not adequate. The examiner must provide an explanation to support the diagnosis. (b) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed respiratory condition was caused by exposure to asbestos during active service. The examiner must accept as fact that the Veteran was exposed to asbestos during active service. A complete rationale must be provided for any opinion rendered. (c) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed respiratory condition had onset during the Veteran's active service or was caused by his active service, other than by exposure to asbestos. A complete rationale must be provided for any opinion rendered. 4. Then, readjudicate the issue on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. 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). _________________________________________________ JONATHAN B. KRAMER 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).