Citation Nr: 1323960 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-38 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a lung disorder, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: David L. Huffman, Esq. WITNESSES AT HEARING ON APPEAL Appellant and Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from September 1958 to September 1961. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the claim for entitlement to service connection for a lung disorder, to include as due to asbestos exposure. The Veteran perfected a timely appeal to that decision. This case was previously before the Board in October 2009. At that time, the Board remanded the issue of service connection for a lung disorder for further development. The Veteran died in January 2011. The Board subsequently dismissed the issue of service connection for a lung disorder in June 2011. In January 2011, the appellant submitted a statement seeking entitlement to recognition as an appropriate substituting party, as his widow and in February 2013 the Board granted the appellant's request for substitution. In addition, the February 2013 Board decision remanded the issue of entitlement to service connection for a lung disorder for additional RO consideration and development. The requested development having been completed, the matter again is before the Board. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In this case, the Veteran (and now the appellant) claim that the Veteran incurred a lung or respiratory disability as a result of his military service. Specifically, the Veteran and the appellant have alleged that his respiratory problems were caused by exposure to asbestos while serving aboard multiple naval vessels. Despite the extensive procedural development already undertaken, the Board concludes that another remand is required to allow for further development. In that regard, the claim was remanded by the Board in February 2013, in relevant part, to obtain a VA medical opinion regarding the etiology of the Veteran's lung disabilities. In the subsequent April 2013 VA medical opinion, the reviewing physician noted the Veteran's diagnoses of obstructive sleep apnea, interstitial fibrosis, pneumonia (resolved), and COPD. The reviewing physician concluded that these disabilities were not caused by or the result of the Veteran's military service, to include asbestos exposure. The rationale for the expressed opinion for the most part was excellent; however, the Board notes one potentially significant oversight. The physician initially noted in the opinion that the service treatment records had been reviewed and that there were no respiratory diagnoses in service. In addition, the physician stated that, "This veteran was not treated for any pulmonary problems during his active duty from 1958 to 1961." By contrast, review of the claims file includes service treatment records from May 1960 documenting chest congestion for the previous week and a December 1960 report noting that the Veteran had been coughing up clots of blood for the past day and a half. As indicated in the physician's initial statement, the service treatment records do not include any respiratory diagnoses. The service treatment records, however, do document multiple instances of treatment for respiratory problems in service, which appears contrary to the physician's second statement noted above. As such, an addendum to the April 2013 VA medical opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental opinion from the physician who provided the April 2013 VA medical opinion. If the physician is not available, obtain an opinion from another appropriate medical professional. The claims file must be made available to and reviewed by the reviewer. The reviewer is asked to provide an opinion regarding whether it is as least as likely as not (50 percent probability or more) that any of the Veteran's diagnosed respiratory disabilities, including obstructive sleep apnea, interstitial fibrosis, pneumonia (resolved), and COPD, were related to any incident of the Veteran's military service, to include asbestos exposure. Specifically, the reviewer is requested to reconcile the service treatment records documenting chest congestion in May 1960 and coughing up clots of blood in December 1960 with the seemingly inconsistent statement in the April 2013 VA medical opinion that, "This veteran was not treated for any pulmonary problems during his active duty from 1958 to 1961." It would be helpful if the examiner/reviewer would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The reviewer should provide a complete rationale for any opinion provided. 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).