Citation Nr: 1329784 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 07-09 612 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a compensable rating for asbestosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to October 1970. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an August 2006 rating decision issued by the Regional Office (RO) in Roanoke, Virginia. It was remanded by the Board for additional development in February 2012 and April 2013. The Veteran testified before the undersigned Acting Veterans Law Judge in September 2011. 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 At a March 2012 VA examination, the examiner opined that the Veteran's pulmonary symptoms were not due to asbestosis, but rather to chronic obstructive pulmonary disease (COPD), likely related to tobacco use. The examiner noted that the Veteran did not have the restrictive disease that would be associated with asbestosis. However, the history documented in the examination report was that the Veteran was a non-smoker. To resolve the apparent discrepancy between the history and findings, the claim was remanded by the Board for an addendum opinion which was completed in April 2013. At that time, the examiner clarified that in referring to a tobacco induced etiology for COPD, she was referring to second hand smoke, noting that the Veteran's father was a smoker who died of lung cancer. She then listed various etiological factors that could cause COPD, but did not identify any which were specific to this Veteran. She also concluded that the Veteran's COPD was unrelated to any of his service connected disabilities, including his mental health concerns (the Veteran has alleged he has greater difficulty breathing due to posttraumatic stress disorder (PTSD) symptoms). However, she did not provide a rationale for this conclusion. In a letter written in response to this examination report, the Veteran denied that he was exposed to secondhand smoke from his father or that his father died of lung cancer. In light of this, the examiner's relationship of the Veteran's respiratory symptoms to tobacco smoke is questionable. Additionally, she did not adequately address the Veteran's contention that his breathing problems are exacerbated by his PTSD. In light of this, and the Veteran's multiple complaints about this examiner and alleged errors in her reports, the Veteran should be provided with another VA examination, by a different examiner, to determine the current severity of his service connected asbestosis, including whether his respiratory symptoms are related to asbestosis or another unrelated respiratory problem, and whether his breathing problems are aggravated by his mental health disability. The Veteran also identified additional treatment that he received for asbestosis after the issuance of the most recent supplemental statement of the case (SSOC). The Veteran should be requested to provide an authorization to enable VA to obtain records of this treatment. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify all treatment that he received for his respiratory condition, and provide appropriate authorizations to enable VA to obtain these records, including records from Dr. K., who was identified by the Veteran in May 2013 correspondence. All identified records should be obtained and associated with the claims file. If records are identified but cannot be obtained, the efforts made to obtain the records should be documented in the claims file and the Veteran should be notified of VA's inability to obtain the records. If additional VA treatment records exist, they should also be obtained. 2. Afford the Veteran another respiratory examination, by an examiner other than the one who performed the March 2012 examination and provided the April 2013 opinion. The examiner should indicate all symptoms and functional effects of the Veteran's service connected asbestosis. If another respiratory disorder, including but not limited to COPD, is also diagnosed, the examiner should indicate whether it is possible to differentiate the symptoms of the two disorders. Additionally, the examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that the Veteran's COPD is either caused or aggravated by his asbestosis or his exposure to asbestos in service. The examiner should also indicate whether the Veteran's PTSD aggravates his asbestosis. A complete rationale should be provided in the report of examination; the examiner is asked to discuss applicable medical principles in light of this Veteran's particular medical history and current presentation. 3. After completion of the above development, the Veteran's claim should be readjudicated. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. 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). _________________________________________________ REBECCA FEINBERG 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).