Citation Nr: 1341928 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 07-01 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for pulmonary asbestosis and asbestos-related pleural disease secondary to asbestos exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to February 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which declined to reopen the Veteran's previously denied claim for service connection for pulmonary asbestosis and asbestos-related pleural disease secondary to asbestos exposure. In his substantive appeal, dated in December 2006, the Veteran requested a Board hearing at the RO. However, in January 2008, his representative requested that the hearing be canceled. In October 2009, the Board reopened the Veteran's claim and remanded it to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further action, to include consideration of the claim on the merits. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). After remanding the case a second time, in November 2010, the Board denied the claim in August 2011. The Veteran appealed the Board's August 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the parties to the appeal (the Veteran, through an attorney, and a representative from VA General Counsel) filed a Joint Motion for Remand of the Board's decision (Motion). The Court granted the Motion later that same month. In February 2013, the Board remanded the claim to the RO, via the AMC, for additional development. After taking further action, the AMC confirmed and continued the prior denial and returned the case to the Board. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. The electronic file contains additional evidence-including additional VA medical records, and a December 2013 brief from the Veteran's representative-which the Board has reviewed. For the reasons expressed below, this appeal is again being REMANDED to the RO, via the AMC. VA will notify the Veteran if further action is required. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate his claim, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2013). VA is also required to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). When this case was remanded in February 2013, the Board requested, among other things, that the agency of original jurisdiction (AOJ) assist the Veteran in obtaining any additional private medical evidence identified. The Board also requested that the AOJ contact the National Personnel Records Center (NPRC), or any other appropriate source, to determine whether any clinical records from the Veteran's in-service hospitalization at Chanute Field Hospital in Rantoul, Illinois, were available; making as many attempts as necessary to obtain the records, and, if the records could not be found, issuing a formal determination that the records do not exist or that further efforts to obtain them would be futile. Thereafter, the AOJ was to return the claims file to a VA examiner who had provided a medical opinion in December 2010. After reviewing the claims file, the examiner was to again determine whether the Veteran had asbestosis or asbestos-related pleural disease. If the examiner determined that the Veteran did not have asbestosis or asbestos-related pleural disease, he was to explain the basis for his December 2010 statement that a high resolution computed tomography (CT) scan is the "definitive test" for asbestosis. The examiner's opinion was to be accompanied by a supporting rationale, including a discussion of the Internet articles submitted by the Veteran in August 2011 and an explanation as to why high resolution CT might, or might not, be a superior diagnostic tool to x-ray. Unfortunately, the requested development has not been fully completed. With respect the matter of obtaining additional private medical evidence, the Board notes that the Veteran, in March 2013, submitted, among other things, a release for medical records from Gulf Coast Pulmonology Associates. The AOJ twice requested, and then received, records from that provider. However, inasmuch as the reports refer to earlier treatment at the same practice (e.g., in January 2013)-the records of which were not included in the materials provided to the AOJ-it appears clear that the records are not complete. The Veteran was never notified of that fact, as required by regulation. See 38 C.F.R. § 3.159(e)(1) (2013). Nor was he asked to provide a release for records of his reported private hospitalization for pneumonia (and gout) in November 2006, or for a CT scan of his chest around February 2007, as reported in newly-received VA clinical reports dated January 4, 2007 and March 9, 2007. See 38 C.F.R. § 3.159(e)(2) (2013). With respect to clinical records pertaining to the Veteran's in-service hospitalization at Chanute Field Hospital, the evidence reflects that the AOJ requested such records from NPRC, unsuccessfully, in March 2013 and May 2013, under codes "C01" and "M05." In response to the latter request, NPRC indicated that "no search [was] possible based on information furnished: Index of retiled records at NPRC failed to identify unit." Thereafter, in September 2013, the AOJ wrote the Veteran, asking him to provide identifying information for the unit to which he was assigned at the time of the relevant hospitalization. The Veteran responded later that month, but did not provide the identity of his unit. In October 2013, the AOJ entered a formal finding to the effect that, due to lack of information with respect to the identity of the Veteran's unit, the clinical records of the Veteran's in-service hospitalization could not be obtained. The Board notes in this regard, however, that the Veteran had previously provided information pertinent to his unit, to include on a NA Form 13055 he completed in January 2010. Specifically, he identified the organization to which he was assigned as SEC Unit 1622nd SH PW. Thus, it appears that the information necessary for a further search by NPRC was already of record. With respect to the request for a supplemental report from the December 2010 VA examiner, the record reflects that the claims file was provided to the examiner in October 2013. The examiner reiterated his prior opinion that high resolution CT is the definitive test for asbestosis, and provided abstracts of three medical articles on the subject. However, he did not provide any further rationale for his opinion, or discuss the Internet articles submitted by the Veteran in August 2011, as requested in the remand. The Court has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given the Court's holdings on the matter, and the fact that the development sought in this case has not been fully completed, the Board has no choice but to return this case to the AOJ. Therefore, a remand is required in order to obtain another addendum opinion. 38 C.F.R. § 19.9 (2013). Records of the Veteran's VA medical treatment were last uploaded to his electronic (Virtual VA) file on March 4, 2013. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). For the reasons stated, this case is REMANDED for the following actions: (Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Notify the Veteran and his representative that the records received from Gulf Coast Pulmonology Associates are not complete, inasmuch as they refer to earlier treatment at the same practice (e.g., in January 2013), the records of which have not been included in materials provided to VA. Inform the Veteran and his representative of the efforts VA has made to obtain the records; of any further action VA will take on his claim, including deciding the claim based on the evidence of record unless the Veteran submits the records VA has been unable to obtain; and of his ultimate responsibility for providing the evidence. 38 C.F.R. § 3.159(e)(1). 2. Ask the Veteran to provide releases for records of his reported private hospitalization for pneumonia (and gout) in November 2006, and for records of the CT scan of his chest he reportedly underwent around February 2007, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary releases, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. If any records identified by the Veteran as relevant are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since March 4, 2013. The evidence obtained, if any, should be associated with the claims file. If additional records are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified. 4. Again contact the NPRC, under code "M05," or any other appropriate code, to determine whether any clinical records from the Veteran's in-service hospitalization at Chanute Field Hospital in Rantoul, Illinois, are available. In so doing, inform NPRC that the Veteran has identified the organization to which he was assigned at the time of his hospitalization as SEC Unit 1622nd SH PW. If the records cannot be found, and no alternative methods of procuring them remain, issue a formal determination to that effect and associate it with the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. After all of the foregoing development has been completed to the extent possible, arrange to have the Veteran's claims file reviewed by a pulmonary specialist, if feasible. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has, or has had at any time since August 2005 (when the current claim was filed), asbestosis or asbestos-related pleural disease. If it is the examiner's conclusion that the Veteran does not have-and has not had since August 2005-asbestosis or asbestos-related pleural disease, the examiner must explain the basis for his or her opinion. If the examiner's opinion is based on the results of high resolution CT scans, the examiner should explain why high resolution CT might, or might not, be a superior diagnostic tool to x-ray. The examiner's explanation must include a discussion of the Internet articles submitted by the Veteran in August 2011-to the effect that asbestosis can be identified by x-ray-and prior favorable opinions offered by private physicians to the effect that x-rays were consistent with asbestos exposure and asbestos-related disease. A complete medical rationale for all opinions expressed must be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 or by the U.S. 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). _________________________________________________ A. JAEGER 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 this appeal. 38 C.F.R. § 20.1100(b) (2013).