Citation Nr: 1327091 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 07-05 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a pulmonary disability manifested by shortness of breath, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1964. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Regional Office (RO) in Winston-Salem, North Carolina. In November 2010, the Board denied the Veteran's claim of entitlement to service connection for atrial fibrillation and remanded the claim of entitlement to service connection for a pulmonary disability manifested by shortness of breath for additional development. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In January 2012, the Court granted a Joint Motion for partial Remand (JMR), vacating the portion of the November 2010 decision that denied entitlement to service connection for atrial fibrillation and remanding the matter for further development. In July 2012, the Board remanded the appeal for development consistent with the JMR. In March 2013, the Board denied the claim for service connection for atrial fibrillation. The Board remanded the claim at bar. 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 Inasmuch as the Board sincerely regrets the additional delay, further development is needed before the claim on appeal can be properly adjudicated. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board previously remanded the claim to obtain a VA examination to address the lay assertions of asbestos exposure aboard the USS Shangri La and provide an opinion as to the relationship, if any, between any diagnosed pulmonary disability and the claimed asbestos exposure. The May 2013 VA examiner documented the Veteran's assertions of in-service asbestos exposure and concluded that the Veteran's condition was less likely than not incurred in or caused by service. As rationale, the examiner explained that the Veteran had a gradual onset of shortness of breath with exertion over a period of 20 years. The examiner noted the Veteran was not on medication for his lungs, chest x-ray did not show any lung disease and there was no respiratory distress. The examiner did note that pulmonary function showed mild obstruction. The Board cannot find that this opinion substantially complies with the intent of the March 2013 remand. Although the examiner noted the subjective history of asbestos exposure, he did not provide a rationale for why the Veteran's conditions are unrelated to service, including this reported asbestos exposure. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding most of the probative value of a medical opinion comes from its reasoning); see also Stefl v. Nicholson, 21 Vet. App. 120, 123, 124-25 (2007) (holding a medical examiner must support his conclusion with an analysis that is adequate for the Board to consider and weigh against contrary opinions.) Rather, the examiner pointed to a gradual onset of the condition over a 20 year period. However, the M21-1R, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 9 provides that the latency period for asbestos related diseases varies from 10 to 45 years between first exposure and development of the disease. Moreover, in its March 2013 decision, the Board conceded that the Veteran was exposed to chemicals in service, including photography related chemicals, and materials in the supply room. See March 2013 BVA Decision, p. 7. In light of the above, the Board finds that an addendum opinion should be obtained prior to appellate adjudication. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, the record reflects the Veteran has been treated at VA facilities. Updated VA treatment records should be obtained and associated with the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the Veteran to identify all sources of treatment that he has received for his claimed condition, and provide any releases necessary for VA to secure these records. The RO/AMC should obtain copies of the complete records of all such treatment and evaluation from all identified sources. Updated treatment records from the VA Health Care Systems from February 2009 until the present should be requested and associated with the claims file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. After any records requested above are associated with the claims file, the RO should forward the claims file, to include a copy of this REMAND, to the VA examiner who prepared the May 2013 VA examination report for a supplemental opinion. The examiner should opine on whether is at least as likely as not (a 50 percent probability or greater) that any diagnosed pulmonary disorder had its onset in service or is otherwise etiologically related to his period of service. In so doing, the physician is to address, whether there is a relationship between any diagnosed pulmonary disability and the claimed asbestos exposure. The examiner should also discuss the in-service chemical exposure from photography related chemicals and materials. A complete rationale must be given for all opinions and conclusions expressed. If the prior examiner is not available, or is unable to provide the requested opinion without examining the Veteran, the RO must arrange for the Veteran to undergo a VA examination to obtain an opinion responsive to the questions posed hereinabove. 3. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim should be readjudicated. If the benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. The appellant 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). _________________________________________________ HOLLY SEESEL Acting 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).