Citation Nr: 1337205 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-33 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1965, with subsequent service in the Navy Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in which the RO denied service connection for asbestosis. In September 2012 the Veteran testified during a Board hearing before the undersigned Veterans Law Judge in San Antonio, Texas; a transcript of the hearing is of record. In connection with the hearing, the Veteran submitted additional evidence, along with a signed waiver of RO consideration. See 38 C.F.R. § 20.1304 (2013). The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant documents. 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 Remand is required to obtain additional records and afford the Veteran a new VA examination to evaluate his claim for service connection for asbestosis. On remand, the AMC/RO should also verify any dates of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA) with the Navy Reserve. Any service treatment records and service personnel records regarding the Veteran's Reserve service, which have not previously been associated with the claims file, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to attempt to verify all of the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Navy Reserve. 2. Request from the National Personnel Records Center (NPRC) or any other appropriate entity any additional service treatment records and service personnel records regarding the Veteran's Reserve service which have not previously been associated with the claims file. 3. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed asbestosis. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for all outstanding pertinent treatment records, including all chest X-rays, from the South Texas Veterans Healthcare System (to include a September 2006 chest X-ray). If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 4. After obtaining any additional necessary authorization, contact Dr. A.S.M. (as identified in February 2008 correspondence from his office to the RO) to obtain any additional records, including X-ray reports, from Dr. E.B. (to include any records available on CD, as referenced in the February 2008 letter from Dr. A.S.M.'s office). If no additional records are available, the Veteran and his representative should be notified and the record clearly documented. 5. With any needed assistance from the Veteran, obtain any records specific to the Veteran related to his involvement in legal proceedings regarding asbestos, as referenced during the September 2012 hearing, to include any medical reports. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 6. After all available records have been associated with the claims file and/or Virtual VA e-folder, afford the Veteran a VA examination to determine whether he has current lung disease, including asbestosis, related to service. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Following examination of the Veteran and review of the record, the examiner should identify any lung disease, including asbestosis, present at any time since August 2007 (when the Veteran filed his claim for service connection). In regard to any diagnosed lung disease, to include asbestosis, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the lung disease was incurred or aggravated as a result of active service, to include asbestos exposure during active duty, ACDUTRA, and/or INACDUTRA. As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following: * The Veteran has described in-service asbestos exposure during his active duty service from June 1963 to June 1965 in his work fixing pipes, which involved mixing asbestos with his hands. He has also reported asbestos exposure during active duty from repairing pipes, hot water lines, steam lines, and boilers that were covered with asbestos. * A performance evaluation report regarding a period of ACDUTRA in July and August 1978 reflects that the Veteran worked in the sheet metal structural repair shop making repairs of airframe components. * A May 2000 independent medical evaluation from Dr. E.B. reflects that the Veteran was evaluated for possible asbestos disease. The Veteran gave a history of working at Kelly Air Force Base from 1966 to 1998 as a sheet metal worker and stated that, in this job, he had significant exposure to asbestos, adding that there was still considerable asbestos in the plant. He reported smoking 20 cigarettes a day for 22 years. Chest X-ray reportedly revealed mild interstitial infiltrates and mild pleural thickening, especially on the right. Pulmonary function test (PFT) was normal. Dr. E.B. concluded that, with an occupational history of prolonged exposure to asbestos and the radiological findings of interstitial infiltrates and pleural abnormalities, the Veteran had asbestosis and asbestos related pleural disease. * A May 2008 VA examination report indicates that the Veteran was diagnosed with asbestosis in 1998, at which time he was told to have X-rays yearly to look for changes. The examiner reviewed an August 2007 chest X-ray which revealed no plain film evidence of asbestos related lung fibrosis or pleural disease. A CT scan of the chest revealed no significant abnormality. The VA examiner's diagnosis was no radiologic evidence of asbestosis, confirmed history of asbestos exposure. He commented that the Veteran's asbestosis had not been confirmed by his testing but, if it had been confirmed, it would be his opinion that it was at least as likely as not the result of his asbestos exposure while serving in the Navy from 1963 to 1965. * During the September 2012 hearing, the Veteran testified that he worked as a "sheet metal man" after separation from service and he did not know that his job would have put him in close proximity to asbestos, as he worked on B52s and C52s. For the purposes of providing this opinion, the examiner should presume that the Veteran was exposed to asbestos during his active duty service from June 1963 to June 1965. In providing the opinion, the examiner must specifically consider and address the May 2000 independent medical evaluation from Dr. E.B., including his diagnosis of asbestosis and asbestos related pleural disease. All examination findings, along with a complete explanation for all opinions expressed, should be set forth in the examination report. 7. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. If the benefit sought remains denied the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for a response. The appellant has the right to submit additional evidence and argument on the matter that 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. 2013). _________________________________________________ JOHN Z. JONES 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).