Citation Nr: 1332833 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-25 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including due to exposure to asbestos and/or other toxic chemicals. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty in the U. S. Air Force from May 1964 to September 1968. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011 and again in May 2013, the Board remanded the claim to the RO via the Appeals Management Center in Washington, DC, for further devevelopment and consideration. Even more development is required, however, so the Board is yet again remanding the claim to the RO via the AMC. Also in the May 2013 remand, the Board noted that an additional claim had been raised by the Veteran's representative, the American Legion (AL), regarding entitlement to service connection for coronary artery disease (CAD), but had not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Thus, because the Board did not have jurisdiction over this additional claim, the Board referred it to the RO for appropriate development and consideration. But there is no indication the RO since has developed or considered this additional claim. Therefore, the Board is again making this referral. REMAND The Veteran initially claimed that he developed COPD entirely because of exposure to asbestos during his military service. Later, however, he asserted that he was exposed to several toxins during his service, albeit still including asbestos, but that any one of them may have caused his COPD. He contends the record includes doctors' opinions linking his COPD to his exposure to aircraft paints and solvents (trichloroethene and zinc chromate) while performing his duties and responsibilities in service as an aircraft mechanic. In the initial March 2011 remand, the Board noted that the then existing evidence as to exposure to trichloroethene and zinc chromate consisted of the Veteran's statements to F.W.B., D.O., reported in a December 2006 medical opinion, and the Veteran's July 2007 statement that those chemicals were used in the performance of his duties. He had supplied no information on when he was exposed to those substances, under what circumstances and in what specific capacity, and in what quantities or for what duration so as to, in turn, permit independent verification of that claimed exposure to those substances and to ascertain whether he had exposure sufficient to cause the deleterious health effects he had alleged. Thus, on remand, the RO/AMC was directed to request further details from him on how, when, and in what quantities he was exposed to asbestos, trichloroethene, and zinc chromate. Then, based on the information provided, the RO/AMC was directed to attempt to verify the use of those materials by the Air Force during his service and his potential exposure to them in the capacities claimed. In response to the RO's/AMC's request for the aforementioned information, the Veteran submitted a statement in September 2011. He specifically described his duties as an aircraft mechanic. For example, he reported that his duties involved removing and replacing wheels and tires assembled from SAC assigned aircrafts. He took them apart and was required to degrease them with a chemical bath. During that process, the rims were placed in a tank filled with acid so the rims could be stripped. According to him, the rims were primed with zinc chromate and repainted with aluminum paint. In addition, the paint on some wheels had to be chemically removed. He stated that, during that process, he was exposed to many chemicals containing trichloroethene. He added that, when those chemicals were heated, he inhaled toxic fumes that were emitted throughout the work place. After he had provided this additional information, there was no indication the RO/AMC in turn had tried to verify the use of the materials he had cited. Thus, the Board determined the RO/AMC had not complied with the March 2011 remand directives. It then was incumbent on the Board to again remand the claim to ensure this compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Also in the March 2011 remand, the Board had noted that, although Dr. F.W.B. had provided a statement opining that the Veteran's then currently diagnosed COPD was related to exposure to trichloroethene and/or zinc chromate during his service, Dr. F.W.B. had not provided a medical basis or rationale for his opinion. Discussion of the underlying medical rationale of an opinion, not instead mere review of the claims file, is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two"); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). Thus, the Board indicated that Dr. F.W.B.'s opinion was insufficient reason to grant the claim. Nevertheless, on remand, the RO/AMC was directed to contact Dr. F.W.B. and request a supporting rationale for his opinion that exposure to trichloroethene and/or zinc chromate had caused the Veteran's COPD. In April 2011, the RO/AMC sent the Veteran a letter asking that he complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, for Dr. F.W.B. so that VA could obtain additional evidence from this doctor. In a statement from the Veteran in response, received in September 2011, he indicated that Dr. F.W.B. had moved to another location and that he was in the process of trying to locate him. The Veteran did not subsequently provide a new address for Dr. F.W.B, however. Consequently, the RO/AMC was unable to contact him and obtain an addendum opinion providing the required explanatory rationale. In the more recent May 2013 remand, the Board observed the Veteran since had submitted a second medical opinion in support of his claim - this time from K.H.B., M.D., dated in April 2012. In the statement, Dr. K.H.B. had linked the Veteran's reactive airway disease syndrome to his exposures to zinc chromate and trichloroethene. But similar to the earlier opinion from Dr. F.W.B., which the Board had discussed in its prior remand, Dr. K.H.B.'s opinion also did not include any underlying medical basis or rationale and did not cite to research or scientific literature on the subject. So just as in the case of Dr. F.W.B.'s opinion, Dr. K.H.B.'s opinion was an insufficient basis to permit granting the claim, especially since a VA compensation examiner that had evaluated the Veteran previously on remand in February 2012 had concluded unfavorably against this posited correlation between the Veteran's COPD and his military service. Hence, in this course of the additional remand, the RO/AMC was directed to contact Dr. K.H.B. and ask that he provide an addendum statement (supplemental comment) discussing the underlying medical rationale of his opinion, including medical literature or results of empirical research supporting his April 2012 opinion. As well in the May 2013 remand, the Board noted that, although the Veteran had submitted clear statements describing how his duties in service had exposed him to certain toxic chemicals, he had not submitted any specific statements on how he was exposed to asbestos. Thus, on remand, the RO/AMC was requested to contact him and ask that he submit a more comprehensive statement describing how, in his capacity as an aircraft mechanic, he was exposed to asbestos. Later in May 2013, the RO resultantly sent the Veteran a letter and requested that he provide a more comprehensive statement describing how he was exposed to asbestos during his service. The RO/AMC also asked that he complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, for Dr. F.W.B. so VA could obtain more information concerning his medical rationale of his April 2012 opinion. Since that May 2013 letter, however, the file does not contain any response from the Veteran. Nevertheless, in regards to obtaining the supplemental opinion from Dr. F.W.B., it was not required to first ask the Veteran to complete and return the VA Form 21-4142 to obtain the supplemental opinion from this doctor with the required explanatory rationale. Since Dr. F.W.B. already had sent in a statement, the RO/AMC, instead, merely was directed to contact him directly and request this addendum opinion. Since this has not been done, it must be before deciding this claim. Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. Review the September 2011 statement from the Veteran regarding his exposure to toxic chemicals, including trichloroethene and zinc chromate, while working as an aircraft mechanic. Based on the information provided, attempt to verify the use of those materials by the Air Force during his service and his potential exposure to them in the capacities claimed. Next, prepare a Memorandum for the claims file and specifically indicate which materials he was exposed to. 2. Contact Dr. K.H.B. directly and ask that he provide an addendum statement (supplemental comment) discussing the underlying medical rationale of his opinion, including medical literature or results of empirical research supporting his April 2012 opinion. [It is not necessary to first obtain a VA Form 21-4142 from the Veteran prior to contacting Dr. K.H.B.] 3. Upon receipt of this and all other additional evidence, readjudicate this claim. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).