Citation Nr: 1325955 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-29 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to service connection for a respiratory disorder, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel REMAND The Veteran had active service from June 1961 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Wichita, Kansas. The Veteran asserts that he has a respiratory disorder that is manifested as a result of exposure to asbestos during his period of active service. An Armed Forces Of The United States Report Of Transfer Or Discharge (DD Form 214) shows that the Veteran served in the United States Navy as a Machinist Mate, which, according to regulations is shown to be a probable occupation for exposure to asbestos while onboard a naval ship. Therefore, in the December 2010 rating decision, VA conceded that the Veteran was exposed to asbestos during his period of active service. Private treatment records dated from April 2007 to October 2011 show that the Veteran has been treated intermittently for symptoms associated with various respiratory disorders. Assessments during this time period have included asthma, probable emphysema, chronic obstructive pulmonary disease, dyspnea, pulmonary hypertension, hypoxemia, bronchitis, obstructive sleep apnea, atelectasis, bronchiectasis, and asbestos-related pleural disease. Treatment records have also shown pulmonary function tests within normal limits and findings of no active cardiopulmonary disease. The Veteran underwent a VA respiratory examination in October 2010. He reported symptoms of productive cough, wheezing, and shortness of breath. Physical examination revealed no evidence of abnormal breath sounds or asthma, congestive heart failure, or pulmonary hypertension. Chest X-rays revealed the heart size and mediastinal structures were within normal limits. There was no evidence of pulmonary infiltrate or calcified pleural plaque. There was no active heart or lung disease shown. Pulmonary function studies were normal. The examiner provided the diagnosis of ventilation/perfusion (V/Q) mismatch from atelectasis and scant amount of bronchiectasis and opined that it was less likely as not caused by or a result of exposure to asbestos. The examiner stated that although there may be pleural changes and plaque that would most likely be related to asbestos exposure, there were no pulmonary changes consistent with asbestosis. In November 2011, the RO received a letter from G. H. Howell, M.D., dated in October 2011, showing that the Veteran had been having an episode of acute bronchitis. It was also indicated that the Veteran had a history of an abnormal computed tomography (CT) scan, and that he no doubt had asbestos exposure given his pleural plaques on the CT from the preceding year. Dr. Howell indicated that given some of the changes in the parenchyma, a repeat CT scan was indicated. In an addendum, Dr. Howell added that the majority of the lung abnormality was atelectasis; however, given the Veteran's asbestos exposure, he could not exclude that there was not early asbestos-related interstitial lung disease. As noted above, the VA examiner in October 2010 indicated that diagnostic testing revealed no evidence of pulmonary infiltrate or calcified pleural plaque, and no active heart or lung disease. The November 2011 letter from Dr. Howell suggests that the Veteran has in fact developed pleural plaques and early asbestos-related interstitial lung disease. In light of the contradictory findings regarding the manifestation of asbestos-related disease, and given the multiple varying diagnoses associated with the Veteran's asserted disability over time as set forth above, the Board finds that the Veteran should be scheduled for a VA respiratory examination by a physician with expertise in pulmonary diseases to provide an opinion reconciling the conflicting evidence of record. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). Finally, as this matter is being remanded for the reasons set forth above, any additional VA and private treatment records for the Veteran for his respiratory disorder should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction shall ask the Veteran to identify all locations of VA treatment or evaluation for any respiratory disorder and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining to the Veteran's asserted lung disorder. All records obtained must be associated with the Veteran's claims file. 2. The agency of original jurisdiction shall request that the Veteran identify all private medical care providers that have treated or evaluated him for his respiratory complaints. The Veteran shall be asked to complete a release authorizing VA to obtain records of any such identified treatment. If the Veteran does not provide necessary releases, instruct him that he can obtain and submit the records himself. If any requested records cannot be obtained, advise the Veteran of this fact, of the efforts made to obtain the records, and of any further actions that will be taken. 3. The agency of original jurisdiction shall thereafter arrange for the Veteran to undergo a VA respiratory examination by a physician with expertise in pulmonary diseases for the purpose of ascertaining the nature and etiology of each respiratory disorder. The claims file, to include a copy of this remand, must be made available to the examiner for review. Any tests or studies to determine the exact nature of any asserted disorder(s) should be undertaken, including whether the Veteran has asbestos-related lung disease. Following examination and diagnostic testing of the Veteran, the examiner is requested to provide an opinion as to whether any currently diagnosed respiratory disorder had its onset during active service or is related to any in-service disease or injury, including exposure to asbestos, which exposure has been conceded by VA. The opinion should specifically address the question of whether the Veteran in fact experiences plaques or any other finding/symptom due to the in-service asbestos exposure. In doing so, the examiner must consider the November 2011 findings of Dr. Howell suggesting that the Veteran no doubt had asbestos exposure given his pleural plaques, and that given his asbestos exposure, he could not exclude that there was not early asbestos-related interstitial lung disease. In discussing these points, the examiner must acknowledge the Veteran's competent lay statements as to the onset and continuity of respiratory symptoms. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a specific respiratory disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide any requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination-for example, whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit an opinion. Any additional evidentiary development deemed necessary should be undertaken. The examiner must provide a complete rationale for each opinion given. It is requested that the examiner discuss the available medical evidence and reconcile any conflicting evidence. 4. The agency of original jurisdiction should thereafter review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication. 5. The agency of original jurisdiction should thereafter readjudicate the Veteran's claim, to include consideration of the November 2011 letter from Dr. Howell. If a benefit sought on appeal remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case. An appropriate period of time shall be allowed for response before the case is returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).