Citation Nr: 1329156 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-47 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a lung disorder, to include asbestosis, chronic obstructive pulmonary disease, and chronic obstructive sleep apnea, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1963 with prior service in the Arkansas Army National Guard, to include a period of active duty for training (ADT) from June 1957 to November 1957. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012) The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In March 2009, the Veteran submitted a claim of entitlement to service connection for asbestosis, claiming that he had been exposed to asbestos during his active duty. The RO interpreted this service connection claim as one for asbestosis, and the claim was developed and adjudicated accordingly. VA medical records dated from 2003 to the present indicate diagnoses of chronic obstructive pulmonary disease (COPD) and chronic obstructive sleep apnea. Accordingly, the Board recharacterized the Veteran's claim for service connection for a lung disability, to include those diagnoses. Brokowski v. Shinseki, 23 Vet App 79 (2009) citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)(finding that when determining the scope of a claim, the Board must consider the Veteran's description of the claim; the symptoms the Veteran describes; and the information the Veteran submits or that VA obtains in support of that claim). Service personnel records reveal that the Veteran served in the Arkansas National Guard from October 1955 to May 1960. During his National Guard service he had a period of ADT from June to November 1957, which involved training with an armor unit. His period of active duty was from May 1960 to May 1963 and his military occupational specialty (MOS) was indicated as auto repairman. The Veteran has submitted a written statement which asserts he was exposed to asbestos during these duties as a mechanic, as asbestos was used in clutch pads, brake linings, and gaskets. A written statement from a service buddy makes the same assertions with respect to asbestos exposure during service. In a May 2009 written statement, the Veteran claims that "prior to 1974 my only exposure to asbestos was in the military. In 1974 I went to work in maintenance at International Paper as a pipe fitter." However, a private medical examination report dated December 1998 indicates that the Veteran had a post-service occupational asbestos exposure history dating from 1958 until 1998; the reported exposure history was as a pipe fitter for International Paper. VA treatment records dated 2003 to 2007 indicate that the Veteran reported having "asbestosis and receives a settlement." A current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The requirement for service connection that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A December 1998 private examination report indicates an assessment of "interstitial changes on chest x-ray consistent with asbestosis." This assessment was made based upon a private x-ray examination report dated October 1997 and a "B-reader" evaluation of that report dated February 1998. However, all subsequent chest x-rays conducted by VA do not reveal any such abnormalities. The pulmonary function test (PFT) results of record also generally reveal normal findings. The Veteran filed his claim in March 2009. VA treatment records dated from 2003 to 2007 indicate transcriptions of the Veteran's assertions of a prior diagnosis of asbestosis, but no medical findings. The March 2007 VA treatment records reflect prescription and use of a CPAP machine for treatment of chronic obstructive sleep apnea. The October 2009 VA examiner specifically stated that no restrictive or obstructive lung disease were found at the October 2009 VA examination. The medical evidence obtained in the October 2009 VA examination and the August 2012 addendum ordered by the prior Board remand are inadequate in light of the Veteran's assertions and the evidence of record. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. The Veteran must be requested to provide a complete occupational history for all post-service employment from his separation from active duty in May 1963 to the present. The Veteran must also provide all evidence and information related to any asbestos settlement he received. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate examination for respiratory disabilities including asbestosis, COPD, and sleep apnea. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies, to include PFTs, chest x-ray, and if indicated, a chest computerized tomography scan, must be accomplished. A narrative report of the PFT must indicate the type(s) of respiratory defects present, if any. The examining physician must elicit a complete military and post-service occupational and asbestos exposure history from the Veteran, and must also review the evidence of record related to his prior reports of asbestos exposure. The examiner is informed that the evidence of record indicates that the Veteran had a level of asbestos exposure during service that would be consistent with that experienced by an auto mechanic for a period from June to November 1957, and from May 1960 to May 1963. After examination and review of the evidence of record, and with consideration of the Veteran's statements the examiner must provide the following opinions: * Does the medical evidence establish a current respiratory disability? * Were interstitial fibrotic changes, COPD, and/or chronic obstructive sleep apnea present at any time during the pendency of this appeal, which is from March 2009 to the present? * Is any degree of a currently diagnosed or previously diagnosed respiratory disorder related to the Veteran's to military service, or the result of exposure to asbestos during the Veteran's ADT from June to November 1957, or his period of active duty from May 1960 to May 1963? If the examiner concludes that a diagnosis of an asbestos related disorder is not warranted, the examiner must discuss the December 1998 private examination report and the accompanying x-ray and B-reader reports and indicate the following: * Does the medical evidence establish asbestosis in 1998? * Does the medical evidence, to include the subsequent examination and radiology reports, indicate that asbestosis was not present in 1998, or did asbestosis resolve? A complete rationale for all opinions must be given and the examiner must comment on the significance, if any, of the Veteran's longstanding smoking history in reaching any conclusions. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. The RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).