Citation Nr: 1527678 Decision Date: 06/29/15 Archive Date: 07/09/15 DOCKET NO. 13-20 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to June 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision by the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has claimed service connection for asbestosis. His MOS in service was refrigeration mechanic and VA has conceded likely asbestos exposure. The Veteran submitted reports from Dr. Albert C. Curseen and Dr. Linda Anderson when he filed his claim. After the RO denied his claim, the Veteran submitted two signed VA Form 21-4142 essentially asking VA to request the records of these two doctors in October 2011. There is a memo in the file indicating that the requested medical evidence had already been submitted and apparently no attempt has been made to request the records with the October 2011 records authorizations. Upon review of the records presently in the file, the Board cannot be sure that VA has the complete records of Dr. Curseen and Dr. Anderson. Both doctors indicated further follow up care would be needed at least by Dr. Curseen. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to assist the veteran in the development of a claim. This includes assisting the veteran in procuring service treatment records, relevant treatment records, and providing a VA examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As the Veteran has requested VA obtain the records of Drs. Curseen and Anderson, and there has not been any attempt to obtain these records, a remand is required under the duty to assist. 38 U.S.C.A. § 5103A, Further, the Board has determined that a request should also be made to a third doctor, Dr. Richard C. Bernstein. Dr. Bernstein is a NIOSH Certified B reader who diagnosed the Veteran with asbestosis. For reasons explained below, the request to all three doctors should include copies of all radiological images of the Veteran for VA review. Dr. Anderson's reports suggest that the Veteran made a claim against his civilian employer with the state Industrial Commission. Similar efforts should also be made to obtain any records from the employer and the Industrial Commission. The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). The Veteran in a June 2013 statement referred to receiving treatment from the Greenville, North Carolina VAMC. VAMC records have not been associated with the file. The Board has determined that the missing records should be associated with the file. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Therefore, a complete set of VAMC records should be requested to ensure that the Board has all relevant VAMC records. The Veteran received a VA examination in May 2011. As noted, the RO conceded asbestos exposure. Nevertheless, the VA examiner concluded that it was less likely than not that service played a role in the Veteran's asbestosis because the service treatment records had no documentation of asbestos exposure. Instead, the examiner relied upon the Veteran's exposure for 30 years in his civilian occupation. Thus, the examination report is flawed because the examiner did not account for the asbestos exposure of the Veteran that occurred during his service as conceded by VA. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The examiner did not explain how the exposure results precluded service connection for asbestosis that had its onset in service, gradually progressed over the years, and/or was aggravated by the civilian exposure. The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). M21-1MR, IV.ii.2.C.9.d. A rationale based on the absence of asbestos during service is insufficient. The Board also finds the VA examiner failed to explain how or to what extent was the Veteran's service and post service exposure, and the influence each had on the Veteran's asbestosis. The Veteran's service asbestos exposure could be the onset for progression of the asbestosis later aggravated by civilian asbestos exposure. Stated another way, even if the Veteran's post- service asbestos exposure is the major factor in his asbestosis, the examiner does not explain how the in-service exposure could still be a cause, albeit lesser cause, of the asbestosis. The Board requires medical guidance as to the effect of both service and civilian asbestos exposure. The Board therefore finds the report inadequate and the Veteran should be provided a second VA examination to provide the missing information, that is, identification of the disability and an opinion whether it is related to service. See 38 U.S.C.A. § 5103A (d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As noted above, both Dr. Curseen and Dr. Anderson diagnosed the Veteran with asbestosis. Dr. Bernstein, a NIOSH Certified B reader, diagnosed asbestosis from the X-ray taken in April 2000. Even the VA examiner found evidence consistent with asbestosis from the pulmonary function test. The radiologist interpreting the VA examination X-ray, however, found no radiological evidence of asbestosis. It is unknown if the reporting radiologist is a NIOSH Certified B reader. Neither the radiologist nor the VA examiner addressed or reconciled the May 2011 findings with the earlier treatment records and x-rays. Therefore, the new VA examination should include an opinion by a NIOSH Certified B reader to reconcile the conflicting evidence to the extent possible. In that regard, the Board has directed that VA attempt to obtain copies of the radiological images from the private physicians to assist the reader reach any opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records of treatment of the Veteran at the VAMC and associated outpatient clinics from his first visit to the present. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file. 2. Ask the Veteran to submit or authorize VA to obtain the medical records and radiological images of Dr. Richard C. Bernstein, Dr. Albert Curseen, and Dr. Linda Anderson. All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained, the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran he may submit any such records in his possession. 3. Provide the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), and ask that he identify the name and address of his former employer, and provide VA signed authorization for his former employer for any medical records or records regarding disability benefits that the Veteran applied for and/or is receiving from his last employer. A similar request for records should be made to the North Carolina Industrial Commission. All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If no records are obtained, the RO should notify the Veteran of the records that could not be obtained, notify the Veteran of the steps taken to obtain the records, and notify the Veteran he may submit any such records in his possession. 4. After the foregoing development is completed, provide the Veteran with a VA asbestos examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked to determine whether the Veteran has an asbestos disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability began in service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. Any opinion provided should be reconciled with the previous opinions obtained. The examiner is advised that VA has conceded the Veteran was likely exposed to asbestos in service. All available radiological studies of the Veteran, including the April 2000 radiological studies by Dr. Berstein and the September 2000 radiological studies of Dr. Anderson and studies of the May 2011 VA radiologist, should be reviewed and interpreted by a NIOSH B reader. The B reader should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has asbestosis, or any other asbestos-related lung disorder. The NIOSH Certified B reader is asked to comment on and reconcile if feasible the April 2000 radiological findings by Dr. Berstein and the radiological findings of Dr. Anderson with radiological findings of the May 2011 VA radiologist, including whether the May 2011 diagnosis represents a change in diagnosis, a progression of the Veteran's prior diagnoses, correction of an error, or the development of a new and separate condition. See 38 C.F.R. § 4.125. Recognition is given to the fact that there may not be a certified B reader who is employed by VA in the jurisdiction in which the Veteran resides. If so, the RO should make arrangements to forward all available chest X-ray films of the Veteran, and the claims file, to an appropriate VAMC that does have a B-reader able to interpret the X-rays and the requested opinion. A complete rationale for any opinion offered by either the VA examiner or the certified B reader should be provided. 5. After the development requested is completed, readjudicate the claim for service connection. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 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 2014). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).