Citation Nr: 1330119 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 11-10 070 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a respiratory disorder, including chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos and/or ionizing radiation. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1945 to August 1947 and from August 1947 to August 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over this appeal was subsequently transferred to the RO in Albuquerque, New Mexico. A November 2011 Board decision denied entitlement to service connection for COPD. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2012 Order granting a May 2012 Joint Motion for Partial Remand (Joint Motion), the Veteran's appeal concerning this issue was remanded to the Board. In February 2013, the Board remanded the issues of entitlement to service connection for a respiratory disorder, including COPD, to include as due to exposure to asbestos and/or ionizing radiation, and entitlement to service connection for posttraumatic stress disorder (PTSD). As will be detailed more precisely below, the Board finds further development is warranted with respect to the issue of service connection for a respiratory disorder, including COPD, to include as due to exposure to asbestos and/or ionizing radiation. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a rating decision dated in June 2013, the RO granted service connection for PTSD with an evaluation of 50 percent, effective March 26, 2008. As this represents a total grant of the benefits sought on appeal with respect to the issue of entitlement to service connection for PTSD, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In February 2013, the Board remanded the Veteran's claim for a VA examination to determine whether any diagnosed respiratory disorder was related to active duty service, to include as due to exposure to asbestos and/or ionizing radiation. Accordingly, the Veteran underwent VA examination in May 2013. After reviewing the Veteran's claims file, the VA examiner noted that physicians had diagnosed asthma and COPD in 2005 and obstructive sleep apnea in 2008. The VA examiner reported that there was no evidence of pulmonary fibrosis despite the Veteran's self-reported history. The VA examiner opined that the Veteran's COPD and asthma were likely from his 35 pack-years tobacco history and not from active duty. The VA examiner found it significant that the Veteran had been diagnosed with COPD and asthma in 2005, years after active duty. In addition, the VA examiner noted the Veteran did not have a diagnosis of obstructive sleep apnea from active duty and that service treatment records dated in December 1945 and August 1947 documented normal physical examinations, and specifically, normal respiratory systems. With respect to the Veteran's in-service exposure to asbestos, the VA examiner reported that because the Veteran did not have a diagnosis of asbestosis, no opinion would be given. The VA examiner repeated the assertion that the Veteran's COPD and asthma were likely from his 35 pack-years tobacco history and also opined that obstructive sleep apnea was not associated with asbestosis. Concerning the Veteran's in-service exposure to ionizing radiation, the VA examiner opined that because the Veteran did not have diagnoses of radiation pneumonitis or radiation fibrosis, he could not provide an opinion. The VA examiner reported that COPD, asthma, and obstructive sleep apnea were not related to ionizing radiation. In support of the findings, the VA examiner provided medical literature from UpToDate. Upon review, the Board finds the May 2013 VA examination and opinion inadequate for purposes of service connection. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, a remand is necessary to ensure compliance with the terms of the February 2013 Board remand. Stegall, 11 Vet. App. at 266. First, a January 2005 VA treatment record noted that records from Presbyterian hospital showed a history of pulmonary fibrosis and that a March 2002 chest X-ray showed an impression of chronic interstitial fibrosis unchanged. Conversely, the May 2013 VA examiner found there was no evidence of pulmonary fibrosis. As it is unclear whether the Veteran has a current disability of pulmonary fibrosis for purposes of service connection, the Board finds an addendum opinion is necessary. In addition, the VA examiner did not specifically offer an opinion as to whether it is at least as likely as not that any diagnosed respiratory disorder is due to in-service exposure to asbestos. Rather, the VA examiner stated that because the Veteran did not have a diagnosis of asbestosis, no opinion would be provided. Furthermore, the VA examiner did not provide any rationale as to why obstructive sleep apnea was not associated with exposure to asbestos. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning). Therefore, the Board finds remand is warranted in order to afford the Veteran an additional VA examination. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. § 3.159 (2013). In the February 2013 remand, the Board also instructed that the RO attempt to obtain any outstanding treatment records, to include treatment records from Presbyterian. The record shows the RO sent a notice letter in March 2013 requesting that the Veteran provide the appropriate information and release forms. The evidence does not demonstrate that the Veteran responded to the request, and the Veteran's representative did not indicate that any further evidence was available. However, as the case is being remanded for the reasons stated above, the Board finds the RO should again attempt to obtain any additional treatment records identified by the Veteran. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who treated him for any respiratory disorder. After securing the necessary releases, attempt to obtain copies of pertinent treatment records identified by the Veteran. To the extent that an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made, and the Veteran and his representative must be informed of the negative results and be given the opportunity to secure the records. Two attempts must be made to obtain any private medical records identified unless it is clear that a second attempt would be futile. If records are identified but not obtained, inform the Veteran of the nature of the records, describe the attempts made to obtain them, and tell him that the claim will be adjudicated on the basis of the current evidence; however, if he obtains and submits the missing evidence, the claim will be re-adjudicated if necessary. 2. After the above development has been completed, schedule the Veteran for an examination, conducted by a pulmonologist, to determine the nature and etiology of any respiratory disorder. The claims file and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be performed, which must include appropriate X-ray studies. The examiner must review all the evidence of record, including the Veteran's service treatment records, service personnel records, VA treatment records, and any additional private treatment records obtained. The examiner should identify all current respiratory disorders and reconcile any current examination findings with the reported diagnosis of chronic interstitial fibrosis in 2002. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater degree of probability) that any respiratory disorder had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury. In this respect, the examiner should specifically offer an opinion as to whether it is at least as likely as not (a 50 percent or greater degree of probability) that any diagnosed respiratory disorder is due to in-service exposure to asbestos. Likewise, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent or greater degree of probability) that any diagnosed respiratory disorder is due to in-service exposure to ionizing radiation. In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale for any opinion expressed, to include citation to specific medical documents in the claims file and supporting clinical findings, must be included in the examination report. 3. Then, re-adjudicate the claim of entitlement to service connection for a respiratory disorder, including COPD, to include as due to exposure to asbestos and/or ionizing radiation. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative and an appropriate period of time in which to respond. Then, return the appeal 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 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).