Citation Nr: 1604385 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 12-02 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease, including as due to in-service asbestos exposure. 2. Entitlement to service connection for asthma, including as due to in-service asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from May 1958 to May 1962 in the U.S. Navy and additional unverified service in the U.S. Navy Reserve (USNR). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied, in pertinent part, the Veteran's claims of service connection for chronic obstructive pulmonary disease and for asthma, each including as due to in-service asbestos exposure. After the Veteran requested reconsideration of this decision within 1 year, rendering it non-final for VA purposes, these claims were readjudicated in a May 2010 rating decision. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Veteran disagreed with the May 2010 decision in October 2010. He perfected a timely appeal in January 2012. A videoconference Board hearing was held at the RO in December 2014 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In January 2015, the Board denied, in pertinent part, the Veteran's claims of service connection for chronic obstructive pulmonary disease and for asthma, each including as due to in-service asbestos exposure. Both the Veteran, through an attorney, and VA's Office of General Counsel, appealed the Board's January 2015 denial to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (Joint Motion) in December 2015. The Court granted the Joint Motion later that same month in December 2015, vacating and remanding the Board's January 2015 denial of the Veteran's service connection claims for chronic obstructive pulmonary disease and for asthma, each including as due to in-service asbestos exposure. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he incurred chronic obstructive pulmonary disease (COPD) and asthma during active service. He specifically contends that in-service asbestos exposure while working aboard several U.S. Navy ships caused or contributed to his current COPD and asthma. VA already has conceded that the Veteran likely was exposed to asbestos while on active service. Having reviewed the record evidence, and in light of the Court's December 2015 Order granting the Joint Motion, the Board finds that additional development is required before the underlying claims can be adjudicated on the merits. Both parties to the Joint Motion contended that the Board erred in its January 2015 decision denying the Veteran's service connection claims for COPD and for asthma, each including as due to in-service asbestos exposure. They specifically contended that it was error for the Board to rely upon negative nexus opinions dated in November 2011 concerning the contended etiological relationships between COPD, asthma, and active service because those opinions were based on an inaccurate factual premise concerning the Veteran's reported smoking history. See Joint Motion dated December 1, 2015, at pp. 3-4. Both parties to the Joint Motion noted that the November 2011 VA examiner relied upon a reported 30 year smoking history for the Veteran when the Veteran subsequently testified before the Board in December 2014 that he had not smoked continuously for 30 years and had quit smoking on several occasions. Id.; see also Board hearing transcript dated December 2, 2014, at pp. 6. The Court has held that a medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Given the discrepancy between the Veteran's smoking history noted on the November 2011 VA examination and what he testified to before the Board in December 2014, and because it is bound by the Court's December 2015 Order granting the Joint Motion, the Board finds that the November 2011 VA examination is not probative on the issue of whether the Veteran's COPD and asthma are related to active service, including as due to in-service asbestos exposure. The Board notes in this regard that there is no medical opinion evidence currently of record addressing the contended etiological relationship between the Veteran's COPD, asthma, and active service, including as due to in-service asbestos exposure. The Board also notes in this regard that VA's duty to assist includes obtaining a VA examination where necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that, on remand, the Veteran should be scheduled for appropriate VA examination to determine the nature and etiology of his COPD and asthma, including as due to in-service asbestos exposure. Both parties to the Joint Motion also asserted that the Board had violated the Court's decision in Bryant in not suggesting that the Veteran submit a medical opinion from a clinician concerning the contended etiological relationship between COPD, asthma, and active service after he discussed what this clinician apparently had told him in his December 2014 Board hearing testimony. See Joint Motion dated December 1, 2015 at pp. 2-3; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (discussing the duty of a Board "hearing officer" to suggest the submission of evidence not in the record). A review of the Veteran's December 2014 Board hearing testimony shows that he testified that he had been told by a "Dr. Aguchay" that his COPD and asthma were due to a combination of his smoking history, his job, and his in-service job duties and conceded asbestos exposure. See Board hearing transcript dated December 2, 2014, at pp. 6-7. Because it is bound by the Court's December 2015 Order granting the Joint Motion, and because this claim is being remanded for additional development, the Board finds that, on remand, the Veteran should be given the opportunity to identify evidence which may have been overlooked that might substantiate his claims, to include medical opinion evidence from a treating provider concerning the contended etiological relationship between COPD, asthma, and active service. See Bryant, 23 Vet. App. at 488. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for chronic obstructive pulmonary disease (COPD) or asthma since his service separation. Advise the Veteran that he may submit medical opinion evidence from a treating provider concerning the contended etiological relationship between COPD, asthma, and active service. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Thereafter, schedule the Veteran for appropriate VA examination to determine the nature and etiology of the disabilities at issue The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, to include a detailed smoking history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that chronic obstructive pulmonary disease (COPD), if diagnosed, had its onset in or is related to active service or any incident of service, including as due to in-service asbestos exposure. The examiner also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that asthma, if diagnosed, had its onset in or is related to active service or any incident of service, including as due to in-service asbestos exposure. A complete rationale must be provided for any opinions expressed. The examiner is advised that VA has conceded that the Veteran likely was exposed to asbestos while on active service. The examiner also is advised that the Veteran has reported a multi-year smoking history following active service although he has alleged that he did not smoke continuously after his service separation and quit smoking on several occasions since service. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ WAYNE M. BRAEUER 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).