Citation Nr: 1330147 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-36 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a lung disorder claimed as due to exposure to asbestos, to include a chronic pulmonary disorder or lung cancer. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from October 1953 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). Please note 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 (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In his initial claim for service connection, the Veteran stated he was seeking service connection for lung cancer. The April 2008 decision limited its scope of review to that particular issue/disability. However, more recently, he indicated that he was seeking service connection for any pulmonary disorder, not limited to lung cancer. See Veteran's statement dated September 2009. A November 2008 VA examination diagnosed him as having pulmonary scarring and chronic obstructive pulmonary disease as well as a history of lung cancer. Accordingly, and in order to properly incorporate the Veteran's contentions and medical evidence of record, the Board has reframed the issue as entitlement to service connection for a lung disorder claimed as due to exposure to asbestos, to include a chronic pulmonary disorder or lung cancer. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Service connection may be established on a direct basis, when a disorder was incurred in or as result of service. Service connection may be established on a secondary basis if there is evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Following examination in November 2008, a VA contracted examiner opined that there is no known relationship between exposure to asbestos and carcinoid tumor. That opinion addressed the disorder identified by the Veteran in his initial claim for service connection. However, the examination report also noted the presence of pulmonary scarring and chronic obstructive pulmonary disease with severe obstruction or restriction. The examiner noted that asbestos exposure "could be" a contributory factor to the scarring, and could affect the Veteran's current level of pulmonary functioning, which was diminished by obstructive and restrictive disorders. Exposure to asbestos in service has been conceded. The examiner's statement does not provide a clear enough opinion to allow the Board to complete appellate review that addresses the likelihood that the Veteran has a current pulmonary disorder, to include scarring on the lower lobes and chronic obstructive pulmonary disease, which may be directly related to in-service exposure to asbestos, or whether in-service exposure to asbestos results in any residual which permanently aggravates a pulmonary disorder. The examiner's statement that such relationships "could be" present requires VA to obtain a more specific opinion regarding the likelihood that the Veteran has a current lung disorder due to his exposure to asbestos in service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded the opportunity to submit or identify any VA or non-VA health care provider who has treated him for any lung/pulmonary disorder since service discharge, to include diagnostic and radiology examinations of the lungs prior to the Veteran's 2006 treatment for carcinoid tumor. After securing the necessary medical release, all identified records should be obtained. Any negative development should be included in the claims file. 2. After the above has been completed, schedule the Veteran for a VA examination to address the nature and etiology of any lung disability. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2013).) All tests and studies deemed appropriate by the examiner should be conducted. Thereafter, based on the clinical findings obtained on examination and the review of the pertinent clinical history contained in the Veteran's claims file, the VA examiner should: a. assign a diagnosis for each current lung disorder as well as any lung disorder that has existed during the appeal period; b. provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any identified lung disorder (such as lung cancer or chronic obstructive pulmonary disease) had its onset in service or is otherwise etiologically related to the Veteran's active service, to include his presumed in-service exposure to asbestos; and, c. provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any lung disorder found to be related to the Veteran's active service caused or aggravated any other lung disability. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. When the RO/AMC is satisfied that the record is complete, the claim should be readjudicated, to include consideration of direct and secondary service connection for any current pulmonary disorder due to or aggravated by exposure to asbestos or the residuals of exposure to asbestos. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. 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). _________________________________________________ MICHAEL A. HERMAN 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).