Citation Nr: 1328241 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-07 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a lung disability other than pleural disease and interstitial lung disease (including fibrosis and asbestosis), to include left diaphragmatic dysfunction with left lower lobe atelectasis. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1962 to August 1966. This matter is before the Board of Veterans' Appeals (the Board) on appeal of February and June 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a Board hearing before the undersigned in March 2011. A transcript of the hearing has been associated with his VA claims file. In an April 2013 decision, the Board awarded the Veteran service connection for pleural disease and interstitial lung disease (including fibrosis and asbestosis). The issue on appeal concerns whether the Veteran has any other diagnosed lung disabilities, to include left diaphragmatic dysfunction with left lower lobe atelectasis, that may be similarly service-connected. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board regrets having to delay adjudication of the Veteran's claim for a second time. However, this remand is necessary to ensure compliance with the Board's prior remand instructions, and to afford the Veteran all consideration due to him under the law. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). As noted in the Board's previous April 2013 remand, the Veteran indicated in an August 26, 1980 statement to VA that he had previously applied for benefits from the Social Security Administration (SSA) and that his claim was denied. He was 36 years old at the time. Because records relating to this SSA claim were not of record at the time of its April 2013 decision, the Board instructed the AOJ on remand to obtain any records from SSA pertinent to any claim made by the Veteran for disability benefits, as well as the medical records relied upon concerning any such claim. If records were unavailable, the AOJ was to clearly document as much in the claims file. Although records pertaining to a more recent (2003) claim for SSA benefits were obtained and associated with the Veteran's claims file, there is no indication that the AOJ ever requested SSA records dating prior to 2003, to include those pertaining to the claim referenced by the Veteran in 1980. Indeed, while it is entirely possible that records relating to this previous claim no longer exist, the Board specifically instructed the AOJ to document any such unavailability in the record if such was the case. In light of the fact that the AOJ made no mention of its efforts to obtain these early SSA records or their availability, as well as the fact that the Veteran has since reported to the May 2013 VA examiner that his original SSA claim was for disability benefits due to a potentially relevant condition manifested by discomfort in his chest, the Board believes that another remand is necessary so that retrieval of such records can be attempted. Also in April 2013, the Board instructed the AOJ to schedule the Veteran for a VA examination, and to obtain an opinion as to the etiology of his left diaphragmatic dysfunction with left lower lobe atelectasis. As the Veteran has maintained that his current lung problems are a direct result of in-service asbestos exposure, the Board made clear in its prior remand that for purposes of this etiological opinion, the VA examiner should accept as true that the Veteran had asbestos exposure while serving on active duty, even though this exposure (or any other in-service lung problem) was not documented anywhere in his service records. Upon review of the record and after examination of the Veteran, the May 2013 VA examiner pertinently opined that the Veteran's diaphragmatic dysfunction with left lobe atelectasis was not due to service. Crucially however, in formulating this negative nexus opinion, it appears that the examiner did not accept as true (or simply did not articulate consideration of the fact) that the Veteran had in-service asbestos exposure, but rather based his opinion in part on an understanding that there was "no evidence in the STR [service treatment record] to support a direct injury as due to, or incurred in service." Because it is unclear whether the VA examiner specifically considered whether the Veteran's current lung disability is as likely as not related to his in-service injury-namely, asbestos exposure-a clarifying opinion should be requested on remand. Accordingly, the case is REMANDED for the following action: 1. With any needed assistance from the Veteran, obtain from SSA records pertinent to the Veteran's original claim for disability benefits (filed in the early 1980s), as well as the medical records relied upon concerning that claim. If such records are unavailable, the claims file should be clearly documented to that effect. 2. After completion of the development described in item (1) above, forward the Veteran's claims file (including relevant Virtual VA records) and a copy of this REMAND to the same VA examiner who administered the Veteran's May 2013 VA examination for an addendum report. The examiner should review his prior findings, to include his determination that the Veteran's left diaphragmatic dysfunction with left lower lobe atelectasis is not related to his period of active duty service. Upon review of the evidence of record, to include all evidence added to the Veteran's claims file since his last review, the examiner should supply a new medical opinion specifically addressing whether it is at least as likely as not (50 percent probability or better) that the Veteran's above-referenced lung disability is related to in-service exposure to asbestos. As before, the examiner should accept as true for the purposes of this opinion that such asbestos exposure occurred even if the Veteran's service treatment records document no such exposure, or any specific treatment for lung problems. This clarifying opinion should include supporting explanation as to why or how he reached his medical conclusion, with reference to the evidence of record. If the May 2013 VA examiner is unavailable to provide an addendum report, the Veteran's claims file, to include a copy of this REMAND and all relevant Virtual VA records, should be forwarded to another qualified medical professional to provide an opinion as to the etiology of the Veteran's left diaphragmatic dysfunction with left lower lobe atelectasis. After review of the claims file, to include the May 2013 examination report, the examiner should answer the same question outlined in the paragraphs above with supporting explanation. If any examiner determines that additional physical examination and/or diagnostic testing of the Veteran are necessary, or that a specialist should be consulted, such should be scheduled. The Board reiterates that a clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Further, if any examiner cannot provide the requested opinion without resorting to speculation, the examiner should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ DONNIE R. HACHEY 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).