Citation Nr: 1330248 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 08-16 441A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a pulmonary disorder, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran presented testimony at a hearing before a Decision Review Officer (DRO) in February 2009, and before the undersigned Veterans Law Judge in June 2010. Transcripts from both hearings are of record. The claim was recharacterized and remanded by the Board in December 2010 for additional development. The Veteran submitted additional evidence directly to the Board in January 2012 and July 2012, which was accompanied by a waiver of RO consideration. See February 2012 response to January 2012 supplemental statement of the case (SSOC). The evidence will therefore be considered in this decision. 38 C.F.R. § 20.1304 (2012). The record before the Board consists of paper claims files and an electronic file known as Virtual VA. The claim 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 The Board remanded the claim in December 2010 in order for another VA examination to be conducted. It noted that recent testimony indicated that the Veteran's contention was that his current pulmonary disorder, to include pleural thickening and chronic obstructive pulmonary disease (COPD), is related to asbestos exposure in service. The Board determined that a September 2008 VA examination was incomplete because the VA examiner did not provide an opinion with regard to a possible diagnosis of COPD. A VA examination was conducted in January 2011 pursuant to the Board's remand. The VA examiner obtained contemporaneous pulmonary function testing (PFT), which showed non-specific ventilator defect; normal lung volumes and diffusing capacity; no post bronchodilator response; and no obstruction. The diagnosis rendered by the VA examiner was normal pulmonary function; no evidence of COPD. The Veteran submitted a July 2012 PFT conducted at Holzer Clinic, which concluded that although there is airway obstruction and a diffusion defect suggesting emphysema, the absence of overinflation is inconsistent with that diagnosis. It also concluded that although bronchodilators were not tested, a clinical trial may be helpful to assess the presence of a reversible component. The pulmonary function diagnosis rendered was moderate obstructive airways disease; minimal diffusion defect. Given the results of the July 2012 PFT, the Board finds that another VA examination should be scheduled to better assess any current pulmonary disorder. Obtaining another VA examination would also be beneficial to address the Veteran's assertions that he has bronchitis and to include a discussion of the various findings on PFT, computed tomography (CT) scanning, and chest x-ray throughout the course of the appeal. Recent VA treatment records should also be obtained. The Veteran should also be asked to provide his authorization and consent for the release of his complete records from Holzer Clinic. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Huntington VAMC, dated since December 2009. 2. Ask the Veteran to provide his authorization and consent for the release of his complete records from Holzer Clinic. 3. Schedule the Veteran for an appropriate VA examination, preferably with a pulmonologist. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. Contemporaneous PFT and CT scanning must be completed. The examiner should identify all current pulmonary disorders (with specific discussion as to whether the Veteran has a chronic restrictive or obstructive pulmonary disorder) and provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current pulmonary disorder had its onset during active service or is related to any in-service disease, event, or injury, to include the alleged exposure to asbestos in service and the February 1970 in-service treatment for chest congestion. The examiner should also address whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the diagnosis of bronchitis rendered in November 2005 had its onset during active service or is related to any in-service disease, event, or injury, to include the alleged exposure to asbestos in service and the February 1970 in-service treatment for chest congestion. The examiner is also asked to specifically address previous PFTs of record that showed non specific ventilator defect on spirometry and borderline normal lung volumes in January 2006; moderate restrictive disease without post bronchodilator response and normal diffusion capacity in May 2006; and non specific ventilator defect on spirometry, no post bronchodilator response, normal lung volumes, and minimal reduction in diffusing capacity in October 2008, as well as CT scanning that showed calcification in the right lower lobe in February 2005 and chest x-rays that showed minimal diffuse interstitial disease in April 2007, nodular opacity in the left lower lung zone in September 2008, and unchanged mild inferolateral pleural thickening on the left in October 2010. A comprehensive report, including complete rationales for all conclusions reached, must be provided. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant 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 or by the U.S. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).