Citation Nr: 1337952 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-21 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a respiratory disorder, to include asbestosis, claimed as a result of exposure to asbestos. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from June 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The Veteran's application for benefits listed his claim as one for entitlement to service connection for asbestosis. The medical evidence includes diagnoses of pleural thickening with a history of asbestos exposure and restrictive lung disease likely secondary to asbestos exposure. The Board has therefore recharacterized this issue on appeal as reflected on the title page. In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. 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 A review of the Veteran's service treatment records reflects no in-service complaints, treatment, or diagnoses of a lung disability. His personnel records reflect that he worked as a control room man involved in radio and television broadcasting. In a statement accompanying his claim dated October 2007, the Veteran said that while stationed aboard the U.S.S. HARWOOD, he spent three months while the ship was dry-docked pulling old wiring coated with asbestos and disposing the material without protective breathing masks. Statements from two fellow shipmates in letters dated August 2008 and June 2009 supported the Veteran's assertions of exposure to asbestos while aboard the ship. In a May 2009 letter, the Veteran addressed possible post-service asbestos exposure while working at Indiana Kentucky Electric Corporation. To date, VA has not attempted to confirm the Veteran's assertions that he was exposed to asbestos, either while the ship was in dry dock or otherwise during service. VA must ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Dyment v. West, 13 Vet. App. 141 (1999); see also VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). On remand, another medical opinion is required. The Veteran was afforded a VA examination in November 2008 after which the examiner diagnosed pleural thickening with restrictive lung disease likely secondary to asbestos exposure or methotrexate (which the examiner previously noted the Veteran was taking for nonservice-connected polymyalgia). The examiner noted the Veteran's reported exposure in-service as well as his subsequent work history as a senior technician with the Indiana-Kentucky Electric Corp., but did not include a clear opinion as to etiology. In a July 2009 statement, a private physician offered the opinion that the Veteran had "service-connected asbestos exposure resulting in disease of the lungs and pleura related to asbestos in places of a very high category for risk factors of developing lung cancer." That physician did not include any records or basis for the opinion offered. After clarifying the Veteran's asbestos exposure, a new VA examination and opinion is necessary to determine whether the Veteran's has asbestos-related lung conditions causally related to service. The VA treatment records in the file date to December 2007. On remand, any additional treatment records (VA or private) should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for lung or respiratory complaints since December 2007. After securing the necessary release, obtain these records, as well as any VA treatment records from December 2007 to the present. If no records are available, the claims folder must indicate this fact. 2. Take appropriate action to develop any evidence of the Veteran's potential exposure to asbestos during service (while aboard the USS Harwood, including while that ship was in dry-dock) and after service while employed at Indiana Kentucky Electric Corp. 3. After completion of the above, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any current lung disability. Arrange for the entire claims file and any pertinent medical records to be made available for review by the examiner. The examiner should perform any diagnostic tests deemed necessary. The examiner should elicit from the Veteran a complete history of his complaints of a lung disability, including any medical treatment. The AMC/RO should tell the examiner whether or not exposure to asbestos has been confirmed. Based on the examination and review of the record, the examiner should address the following: (a) Identify all currently diagnosed lung conditions and clarify whether the Veteran has asbestosis or other asbestos-exposure related disease; (b) if asbestosis or other asbestos-exposure related disease is diagnosed, is at least as likely as not (50 percent or greater probability) that disease is the result of in-service asbestos exposure or post-service exposure or related to use of methotrexate? The examiner should discuss the Veteran's service as well as his post-service history, and any other pertinent risk factors for asbestos-related disease or other respiratory disorders. (c) if asbestos exposure in service is not confirmed, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed lung disorder was incurred in service? The examiner should consider all pertinent evidence of record. Such evidence includes the Veteran's reported statements of in-service exposure to asbestos while aboard the U.S.S. Harwood. Post-service, the Veteran states that he worked as a senior control technician at the Indiana-Kentucky Electric Corp., and was issued protective breathing masks as part of his work duties. The rationale for all opinions should be provided. If the examiner cannot provide an opinion 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. 4. Thereafter, the RO must readjudicate the Veteran's claim seeking service connection for a lung condition. If the benefit is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond. The matters should then be returned to the Board for further appellate process. 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 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). _________________________________________________ M. E. LARKIN 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).