Citation Nr: 1333112 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-48 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a lung condition, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Samadani, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to October 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. When this case was most recently before the Board in May 2013, it was remanded for further development. It is now before the Board for further appellate action. As noted in the May 2013 Board remand, the RO has not adjudicated the issue of whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for PTSD. See, for example, the December 2009 substantive appeal arguing that depression is secondary to PTSD. Accordingly, the issue of whether new and material evidence has been submitted sufficient to reopen a previously denied claim of service connection for PTSD has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The United States Court of Appeals for Veteran Claims has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is required in this case. Acquired Psychiatric Disorder As noted in the April 2012 and May 2013 Board remands, the two issues for psychiatric disorders (entitlement to service connection for an acquired psychiatric disorder other than PTSD and whether new and material evidence has been submitted sufficient to reopen a previously denied claim of service connection for PTSD) are inherently intertwined. In that regard, the appellant asserts that depression is secondary to PTSD. See the December 2009 substantive appeal. The issue of whether new and material evidence has been submitted sufficient to reopen a previously denied claim of service connection for PTSD was referred to the RO for appropriate action in the May 2013 Board remand. The RO has not yet adjudicated this issue. Therefore, the Board must remand the issue of entitlement to service connection for a psychiatric disorder other than PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other in the prescribed degree should not be subject to piecemeal decision-making or appellate litigation). Respiratory Disorder In the May 2013 remand, the Board asked the AMC to afford the Veteran a VA examination for her claimed respiratory disorder and to provide an opinion as to whether the Veteran's currently had a lung condition, to include asthma and restrictive lung disease, and if so, whether it was at least as likely as not that the Veteran's current lung condition was related to her active duty service, to include alleged in-service exposure to asbestos. Following an examination in June 2013 and review of the claims file, the examiner found that the Veteran had no lung disorder and had had normal lung x-rays since 2009. He concluded that it was less likely than not that a current lung disorder was related to the Veteran's military service. To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves); see also Romanowski v. Shinseki, WL 3455655 (Jul. 10, 2013) (holding that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.) If the Veteran no longer has a respiratory disability, an opinion is needed whether she had a respiratory disability at any time since she file her claim or close to the time when she filed her claim. Here, the Veteran filed a claim for "asbestos" in March 2007. In a March 2008 statement, she clarified that she wanted to file a claim for service connection for breathing problems, lung condition and asbestosis due to asbestos exposure. In a November 2006 letter from a physician at Concord Medical Center, it was noted that the Veteran was being evaluated for an asbestos physical. He reported that she began working in the military and then went to Tennessee Valley Authority. Exposure started in 1975 when she worked as a painter and asbestos was everywhere, including in the insulation, blanket, gloves, etc. Upon examination, she was diagnosed with parenchymal abnormalities bilaterally consistent with asbestosis which was due to her occupational exposure to asbestos in the workplace. The evidence shows that in December 2007, the Veteran was diagnosed by Dr. G.K. with bronchitis. In a September 2008 letter from Dr. D.W.K, M.D., the physician noted that he previously reviewed the employment exposure and performed history & physical examination, including review of pulmonary function study and chest x-ray. Concerning her examination, the physician stated that he had not heard on either occasion any evidence for inspiratory crackles, which is generally considered one of the requirements for the diagnosis of asbestos associated lung disease. It was noted that she demonstrates mild restrictive pulmonary disease. Concerning exposure, according to measurement provided, the Veteran may have been exposed to asbestos fibers at a concentration 0.0 to 0.5 fibers per cc of air. The apparent possible work exposure is approximately 15 years. Niache sets a limit of 0.1 fibers per cc of air. Based on this finding, it is then reasonable to believe that the duration and concentration of exposure could result in asbestos related lung disease. Based on all of the available data concerning the Veteran, it is impossible to exclude asbestos as the cause of her mild restrictive pulmonary defect. Therefore, it is reasonable to assume that mild pulmonary limitation is in fact due to asbestos exposure. The claims file contains a January 2009 prescription record documenting a prescription for Tiotropium with no refills. The evidence appears to show that the Veteran has been diagnosed with lung disability during the appeal period. The Board finds that the claims file should be returned to the June 2013 examiner for an addendum opinion as whether it is at least as likely as not that the Veteran had any type of respiratory disorder since the time she filed her appeal in March 2007 or shortly before. If so, the examiner should provide an opinion as to whether it is at least as likely as not that the disability is due to the Veteran's military service, to include alleged in-service exposure to asbestos. Additionally, the Board should take this opportunity to obtain any recent VA treatment records that have not yet been associated with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, 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. Obtain any recent VA treatment records since July 2013 and associated them with the claims file. 2. Request that the Veteran provide or authorize the release of any medical records not already of record that are pertinent to her claims, including any additional records from Dr. Kahn dating from 2009 and the emergency room where she was treated for bronchitis in November 2012. 3. After the above is complete, request an addendum opinion from the VA examiner who conducted the June 2013 VA respiratory examination. The entire claims file and a copy of this entire remand should be provided to the examiner. After reviewing the claims file, the examiner should answer the following questions: (a). Is it at least as likely as not (50 percent or greater probability) that the Veteran had any type of respiratory disorder, other than bronchitis, since 2007? If not, please reconcile that determination with the diagnoses of record (e.g., did the diagnosed disorders resolve, were the diagnoses in error, etc.). The examiner's attention is directed to the November 2006 letter (tabbed in green) from the physician at Concord Medical Center noting a diagnosis of parenchymal abnormalities bilaterally consistent with asbestosis which was due to her occupational exposure to asbestos in the workplace. The examiner's attention is also directed to the September 2008 letter (tabbed in green) noting a diagnosis of mild restrictive pulmonary disease but also stating that he had not heard any evidence for inspiratory crackles, which is generally considered one of the requirements for the diagnosis of asbestos associated lung disease. The examiner is informed that SSA records note a history of asthma. (b). If so, is it at least as likely as not (50 percent or greater probability) that the respiratory disorder is due to the Veteran's military service, to include as due to alleged in-service exposure to asbestos? (c). Is it at least as likely as not (50 percent or greater probability) that the bronchitis diagnosed in 2007 is due to the Veteran's military service, to include as due to alleged in-service exposure to asbestos? The examiner's attention is directed to treatment records showing diagnoses for chronic bronchitis (August 2006 and December 2007) (tabbed in blue). The examiner is also notified that the Veteran's personnel records reflect that she worked as a supply specialist during service and her SSA records reflect that she worked as a painter in various businesses after service, from 1978 to 1999. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Following the completion of the above-requested development, readjudicate the claims. If the claims remain denied, she and her representative must be provided a supplemental statement of the case and an opportunity to respond. (NOTE THAT THE ISSUE OF WHETHER NEW AND MATERIAL EVIDENCE HAS BEEN SUBMITTED SUFFICIENT TO REOPEN A PREVIOUSLY DENIED CLAIM OF SERVICE CONNECTION FOR PTSD IS INTERTWINED WITH THE ISSUE OF SERVICE CONNECTION FOR DEPRESSION AND CAN NOT BE ADJUDICATED BY THE BOARD UNTIL THE AOJ ADJUDICATES THE PTSD ISSUE WHICH WAS REFERRED TO THE AOJ IN THE INTRODUCTION). Thereafter, the case should be returned to the Board, if otherwise in order. 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). _________________________________________________ S. S. TOTH 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).