Citation Nr: 1334809 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-10 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a respiratory disability, to include due to asbestos exposure. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. All, Associate Counsel INTRODUCTION The Veteran had active military service from September 1966 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction lies with the Detroit, Michigan RO. The Veteran testified before a Decision Review Officer in February 2011. A transcript of the hearing is associated with the claims file. The Board has broadened the issue on appeal to better reflect the benefits sought by the Veteran. The original issues were entitlement to service connection for chronic obstructive pulmonary disease (COPD) with emphysema, and for mesothelioma, both as a result of asbestos exposure. As amended, the issue is entitlement to service connection for a respiratory disability, to include due to asbestos exposure. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 Veteran claims service connection for a respiratory disorder as directly related to his in-service asbestos exposure while working as a boilerman in the Navy. The Veteran's exposure to asbestos is conceded. The record shows that the Veteran has been treated extensively for severe respiratory problems by private physicians since 2005. During that time, the Veteran has received numerous diagnoses, including asbestos related lung disease with pleural plaques, COPD with emphysema, exertional dyspnea secondary to very severe obstructive airways disease, and scattered areas of pleural thickening, among others. See medical reports from Dr. A.S. dated October 2005 through December 2008; letter from Dr. H.K. dated October 2008; radiology report dated March 2006. The record indicates that the Veteran is a former longtime smoker who quit in 2002. The Veteran has not received treatment from VA. See March 2009 claim. In May 2009, the Veteran underwent a VA examination. The Veteran received diagnoses of COPD with emphysema, and pleural calcification from asbestos exposure. The examiner noted that there was no evidence of mesothelioma by history or per medical record review. In offering an opinion, the examiner was specifically directed to state whether any current respiratory condition is as least as likely as not related to the Veteran's in-service asbestos exposure. A full rationale for any opinion was required. Instead, the examiner offered the following conclusory opinion: "Emphysema is not related to the asbestos exposure. Rationale per current medical literature review . . . Asbestos exposure does not cause COPD." The Board finds the May 2009 opinion inadequate for adjudication purposes because the examiner employed the wrong legal standard and did not provide a sufficient rationale for his conclusions. Therefore, a new VA examination and opinion is necessary prior to a Board decision with respect to these issues. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records, to include updated treatment records from Dr. A.S. and Dr. H.K., as noted above. Any additional treatment records identified by the Veteran should be obtained and associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to provide them the opportunity to obtain and submit those records for VA review. 2. Following the above, schedule the Veteran for a VA examination to determine the nature and etiology of any respiratory disability found. This remand and the entire claims file, to include any pertinent medical records contained in Virtual VA, must be reviewed by the examiner in conjunction with the examination. (If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not otherwise available must be printed and associated with the paper claims file for the examiner's review.) All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. After reviewing the record and examining the Veteran, the examiner should provide a diagnosis for any respiratory disability found, specifically ruling in or excluding diagnoses of COPD with emphysema, and mesothelioma. Then for any diagnosed respiratory disability, the examiner must state whether it is at least as likely as not (probability of at least 50 percent) that the disability: (a) is related to the Veteran's active military service, to include asbestos exposure; (b) had its onset during the Veteran's active military service or within one year of his separation from service; and (c) is related to any service-connected disability, specifically to include the pleural calcifications in the Veteran's lungs. (For the purposes of providing any opinion, the Veteran's exposure to asbestos during service is conceded.) In rendering any opinion, the examiner is instructed to specifically comment on any statements from the Veteran regarding the onset and continuation of symptoms. The medical reasons for accepting or rejecting the Veteran's report should be set forth in detail. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the requested examination has been completed, the report should be reviewed to ensure that it complies with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. Should the examiner indicate that additional evidentiary development is required to arrive at an opinion, such development should be undertaken. 4. Finally, after completing the above, and any other development deemed necessary, readjudicate the issue on appeal based on the entirety of the evidence. If a benefit sought on appeal 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. The Veteran has the right to submit additional evidence and argument on the 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 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). _________________________________________________ J. A. MARKEY 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) (2013).