Citation Nr: 1340199 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 08-07 722 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Veteran represented by: Taylor Holbrook, Attorney at Law ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from November 1953 to September 1955. The Veteran died in January 2007. The appellant is the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision of the RO. In June 2010, the Board denied the appellant's claim. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in August 2012, the appellant's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand. In an August 2012 Order, the Court vacated the Board's June 2010 decision and remanded the matter for readjudication in light of the Joint Motion. In May 2013, the Board requested a medical opinion from the Veterans Health Administration (VHA) in order to address whether the Veteran's death was related to his reported in-service asbestos or smoke exposure, or some other causative event or incident of his period of active service. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(d) (2013). The requested VHA opinion was received by the Board in August 2013. On August 9, 2013, the Board wrote to the appellant, provided her a copy of the VHA opinion, and solicited additional evidence and/or argument. Cf. Thurber v. Brown, 5 Vet.App. 119 (1993). The appeal is being remanded to the RO. VA will notify the appellant if further action is required. REMAND In the August 2013 Joint Motion, the parties agreed that the Board relied on the wrong statute when it determined that a medical opinion was not necessary to decide the appellant's case. As a result, the parties agreed that the appeal should be remanded for the Board to consider "whether the Secretary's general duty to assist found in [38 U.S.C.A.] § 5103A(a) requires obtaining a medical opinion in this case." See the Joint Motion, pages 2-3. As noted, following the Joint Motion, the Board requested a VHA medical opinion. Specifically, the Board requested that a VHA physician opine as to whether it was at least as likely as not (50 percent probability or greater) that the Veteran's fatal pulmonary fibrosis or other chronic lung disease was due to his reported in-service asbestos or smoke exposure or was the result of another causative event or incident of his period of active service. In a July 2013 report, a VHA physician summarized the Veteran's medical history and reported that he could not "state that there is a greater than 50% chance that the [Veteran's] pulmonary fibrotic process was due to asbestos exposure." As correctly noted by the appellant's attorney, the VHA physician used the wrong standard in forming his opinion. Instead of determining whether the cause of the Veteran's death was at least as likely as not (50 percent probability or greater) due to an injury or disease sustained while on active duty, the physician stated that he could not state that there was "a greater than a 50 [percent] probability" (emphasis added). In addition, the VHA physician indicated that additional evidence was required. Specifically, it was noted that the Veteran's pathology report showed he had severe interstitial fibrosis but the "geographical distribution, temporal heterogeneity and the presence of fibroblastic foci" were unclear. Significantly, the VHA physician noted that fibroblastic foci were often overlooked unless the slides were reviewed by a pulmonary pathologist and, if present, these would have been suggestive of usual interstitial pneumonitis (UIP). The VHA physician also noted that asbestosis was usually established when typical features of UIP were lacking and the exposure to asbestos was clear. In this case, the VHA physician stated that, while the typical features of UIP were not mentioned, they could not be ruled out unless he could "re-assess the real CT images and send the slides to a pathologist who specialize[d] in pulmonary disorders." Under these circumstances, an effort to should be made to obtain the evidence cited by the VHA physician and to obtain another medical opinion. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to obtain the real images from any VA CT scan, including the March 2006 CT scan that was performed at the Louisville, Kentucky VA Medical Center. Any materials so obtained should be associated with the Veteran's VA claims folder. 2. The RO should take all indicated action to contact the appropriate repository and determine whether any of the Veteran's lung pathology slides exist. If the search for such pathology slides has negative results, the claims file must be properly documented as to the unavailability of those records. 3. If pathology slides of the Veteran's lungs are obtained or are otherwise available, the RO should arrange for a review of such by a qualified health care provider who should provide an opinion as to whether any lung tissue exhibits findings that are consistent with asbestos exposure or interstitial pneumonitis. 4. Once the action has been completed to the extent possible, the RO should arrange for an appropriate VA health care provider to review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's fatal pulmonary fibrosis or other chronic lung disease was due to his reported exposure to asbestos and smoke during service or another causative event or incident that occurred during his period of active duty service. 5. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the appellant and her attorney should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant 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 or by the Court 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). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).