Citation Nr: 1600717 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 14-06 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to asbestos exposure and/or secondary to service-connected asbestosis. 2. Entitlement to service connection for prostate cancer, to include as secondary to asbestos exposure. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to asbestosis. 4. Entitlement to service connection for diabetes, to include as secondary to asbestosis. 5. Entitlement to service connection for a heart disability, to include as secondary to asbestosis and/or hypertensive vascular disease. 6. Entitlement to service connection for a lumbar spine disability, to include as secondary to asbestosis. 7. Entitlement to service connection for hypertensive vascular disease, to include as secondary to asbestosis. 8. Entitlement to service connection for lower extremity radiculopathy, to include as secondary to asbestosis and/or a lumbar spine disability. 9. Entitlement to service connection for a kidney disability, to include as secondary to asbestosis. 10. Entitlement to a compensable initial rating for asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from December 1957 to November 1961. These matters come before the Board of Veterans' Appeals (Board) from December 2010 and August 2012 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND COPD The claims file includes a print-out of an article from the National Institutes of Health (NIH) which reflects that a possible complication of asbestosis is COPD. The Veteran's representative, in a November 2015 brief, asserted that "according to the NIH and a number of other researchers and pulmonary experts COPD is a complication or result of asbestos. Aggravation happens at the least." A December 2010 VA report reflects the opinion of the examiner that the Veteran's COPD is not related to his asbestos exposure in the military service; however, the examiner did not provide an adequate rationale, or provide an opinion as to whether the Veteran's COPD is caused by, or chronically aggravated by, his service-connected asbestosis. Thus, a supplemental opinion is warranted. In providing an opinion, the clinician should also consider the findings of the NIH, the October 2010 VA examination report which reflects that the Veteran does not have remarkable interstitial disease or restrictive airway disease, and the Veteran's more than 40 year history of smoking, if pertinent. Prostate Cancer The Veteran was diagnosed and treated for prostate cancer in 2010. In a November 2015 brief, his representative indicated that studies have found a relationship between asbestos and prostate cancer. Thus, the Board finds that a clinical opinion may be useful to the Board in adjudicating the Veteran's claim. In providing an opinion, the examiner should consider, if pertinent, the Veteran's age and more than 40 year history of smoking. (The Veteran's representative cited to a general article on asbestos from the Agency for Toxic Substances & Disease Registry, and cited to The University of Pennsylvania Hospital, but failed to provide a specific article or study.) GERD, Diabetes, Heart disability, Lumbar Spine disability, HYPERTENSION, Radiculopathy and Kidney Disability A November 2011 report from Dr. C.N.B. reflects his opinion that the Veteran has been prescribed steroids for asbestosis and that this steroid use has caused weight gain. Dr. B. contends that this weight gain has caused the Veteran's GERD, diabetes, back pain, radiculopathy, hypertension, and that his hypertension has caused renal disease and heart disease. Dr. B. stated that the Veteran "has been treated with steroid and bronchodilators for many years for his asbestosis and has gained weight up to 205 pounds." The basis of the information is unclear. The clinical records reflect that the Veteran had GERD in August 2005, low back complaints in March 2008, diabetes in March 2008, and hypertension in 2001. The evidence does not reflect that the Veteran had been prescribed steroid use for asbestosis at those times, or that he had a chronic increase in weight prior to his diagnoses of those disabilities. On remand, additional clinical records from 2000 to present should be obtained, and a clinical opinion. (2000 is one year prior to the date of noted for hypertension.) Increased Rating The Veteran underwent a VA examination in 2010. An August 2010 VA examination report reflects that the Veteran's functional capacity (Pulmonary function test results) is probably based on his nonservice-connected COPD, and not his service-connected asbestosis. In a December 2011 VA Form 21-4138, the Veteran's spouse, G.B., stated that she has noticed that the Veteran's breathing is worse. In a December 2011 VA 21-4138, the Veteran stated that his breathing has worsened in the last three years. Neither individual has been shown to be competent to distinguish between the Veteran's service-connected disability and his nonservice-connected COPD. Nevertheless, they are competent to state their observations. As it has been more than five years since the VA examination and the Veteran and his wife have indicated a possible worsening of his condition, the Board finds that the Veteran should be scheduled for another examination to determine the current extent of his service-connected disability. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain all clinical records for the Veteran's claimed disabilities from January 2000 to present, to include all VA clinical records. 2. After completion of the foregoing, schedule the Veteran for an examination to determine the extent of his service-connected asbestosis. The claims folder and copies of all pertinent records should be made available to the examiner for review. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the asbestosis. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. The clinician should differentiate if possible, the Veteran's pulmonary function test results due to COPD from those, if any, due to asbestosis. (e.g. See October 2010 VA examination report.) 3. Thereafter, obtain clinical opinions (and examinations if deemed necessary as follows. The claims folder and copies of all pertinent records should be made available to the examiners for review. a.) with regard to prostate cancer, obtain a clinical opinion as to whether it is as likely as not (50 percent or greater) that the Veteran's prostate cancer is (i) due to asbestos exposure or (ii) caused or aggravated by his service-connected asbestosis. In providing an opinion, the examiner should consider, if pertinent, the Veteran's age; history of smoking, and the general article on asbestos from the Agency for Toxic Substances & Disease Registry. b.) with regard to COPD, obtain a supplemental clinical opinion as to whether it is as likely as not (50 percent or greater) that the Veteran's COPD is caused by, or chronically aggravated by, his service-connected asbestosis. The clinician should consider i.) the Veteran's contention that the NIH and other studies may have found that COPD is a complication of asbestos; ii.) the October 2010 VA examination report which reflects that the Veteran does not have remarkable interstitial disease or restrictive airway disease; and iii.) the Veteran's 40 year history of smoking. c.) with regard to GERD, diabetes, heart disability, lumbar spine disability, HTN, radiculopathy, and a kidney disability, the clinician should provide an opinion as to the following: i.) Whether it is as likely as not (50 percent or greater) that any of the following disabilities: GERD, diabetes, heart disability, lumbar spine disability, HTN, radiculopathy, and/or a kidney disability is casually related to, or aggravated by, his service-connected asbestosis, to include any prescribed steroids for that condition. The examiner should specifically indicate whether the Veteran was prescribed steroids for treatment of asbestosis. In rendering an opinion, the clinical should consider: i.) the evidence that the Veteran has been prescribed steroids for his back pain and COPD. (See e.g. March 2009 record that the Veteran was inquiring about steroid use, February 2011 record that the Veteran was given steroids for his back pain and COPD, April 2011 record that the Veteran was given steroids for his back pain); ii.) the Veteran's more than 40 year history of smoking; and iii.) the Veteran's dates of diagnoses for his disabilities and his weight(s) as noted in the clinical records. 4. Following completion of the above, readjudicate the issues on appeal. If any benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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) (2015).