Citation Nr: 1331487 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-15 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for pulmonary fibrosis/asbestosis. REPRESENTATION Appellant represented by: Maxwell D. Kinman, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2011, the Veteran presented sworn testimony during a video conference hearing in Houston, Texas, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. In December 2011, the Board issued a decision denying the Veteran's claim for service connected compensation for pulmonary fibrosis/asbestosis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a September 2012 Order, the Court vacated the December 2011 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). Accordingly, and for the reasons set forth below, this appeal is being REMANDED to the Houston, Texas RO. VA will notify the Veteran if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Furthermore, if VA undertakes to provide a medical examination, the Board must ensure that such examination is adequate. See Barr v. Nicholson, 21 Vet. 303, 311. The Veteran claims that his current respiratory disorders, namely his pulmonary fibrosis and asbestosis, are related to his reported asbestos exposure in service. The claims file also includes evidence that the Veteran was exposed to occupational hazards during his post-service employment while working at a plywood plant, a glass factory, and a plastics plant. In November 2008, the Veteran underwent a biopsy of the right upper lobe of the lung, the results of which revealed focal interstitial fibrosis with ill-defined interstitial histiocytes and polarizing crystals, emphysema, and thickened vascular walls suggestive of pulmonary hypertension. During a January 2009 VA treatment visit, the treatment provider reviewed the November 2008 biopsy report, and also noted signs of possible asbestosis. Specifically, in the assessment section, the treatment provider indicated that the biopsy results "showed evidence of foreign body - ?asbestosis...." The Veteran was afforded a VA examination in February 2009 in connection with his claim for service connection for pulmonary fibrosis/asbestosis. During the examination, the Veteran provided his military history and reported that he served as a boiler man in service. The Veteran also provided his post-military employment history and reported to have worked at a plywood plant, a glass factory and a plastics plant after service. Upon evaluating the Veteran and reviewing the claims file, to include the November 2008 biopsy results and January 2009 pulmonary note, the VA examiner diagnosed the Veteran with asbestosis, and determined that said disorder was less likely as not caused by or a result of his military service. According to the examiner, the Veteran's asbestosis is more likely than not due to his post-service occupational history of various exposures while working for a plywood plant, glass factory and plastics plant. Unfortunately, the Board does not find this medical opinion to be an adequate one. Although the examiner related the Veteran's claimed disorders to his post-service occupational exposure to various types of compounds while working at a plywood plant, a plastics plant and a glass factory, as opposed to his reported in-service asbestos exposure, she (the VA examiner) did not provide an explanation as to how she arrived at this conclusion. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Kightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). In this case, the VA examiner did not cite to the records reviewed or relied upon in making her ultimate determination. While she provided a recitation of the Veteran's medical history, she did not explain how this history helped her reach her conclusion. That is, she did not discuss which factors associated with the Veteran's military and post-service medical history, led her to conclude that the Veteran's current asbestosis/pulmonary fibrosis was more likely linked to his post-service work history. In addition, she did not provide a medical reasoning or explanation in support of her determination. A rationale must be elucidated by a discussion of the medical principles that apply to the medical facts relating to the Veteran's disability. Indeed, a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions," see Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007), and the "examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two," Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the Board finds that another medical opinion which considers all of the evidence of record and which provides sufficient rationale and explanation for any conclusion reached is necessary for the purpose of determining the nature and etiology of any respiratory and/or pulmonary disorder that may be present. Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination with a VA physician who specializes in respiratory disorders (i.e. pulmonologist) to determine the nature and etiology of any current respiratory/pulmonary disorder(s) present. The claims folder, a copy of this remand, and all records on Virtual VA must be made available to the examiner in conjunction with the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report. The examiner should specifically take note of the November 2008 VA lung biopsy report. Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any respiratory and pulmonary disorder(s), and provide diagnoses for all identified disabilities. The examiner should specifically discuss whether the Veteran has a diagnosis of asbestosis. For any respiratory and/or pulmonary disorder(s) found on examination, the examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder(s) had its(their) onset in service, to include as a result of the Veteran's possible in-service asbestos exposure, or is(are) otherwise related to the Veteran's military service. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) All opinions expressed must be supported by a complete explanation for why the examiner arrived at the opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. No action is required of the Veteran until he is notified. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).