Citation Nr: 1609476 Decision Date: 03/09/16 Archive Date: 03/15/16 DOCKET NO. 09-08 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD) (also claimed as emphysema and bronchitis), and as due to asbestos exposure. 2. Entitlement to service connection for a cardiac disability, to include as due to coronary artery disease (CAD) status-post myocardial infarction and coronary artery bypass grafting (also claimed as hardening of the arteries), and as due to asbestos exposure. 3. Entitlement to service connection for hypertension, to include as due to asbestos exposure. 4. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2011, the Veteran was scheduled for a hearing before the Board and did not appear. No good cause has been shown. Therefore, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). In December 2012, the Board remanded the case to the RO for additional development. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran was provided a VA examination in October 2007. The examiner noted that a chest x-ray showed borderline cardiomegaly and no plain radiographic evidence for asbestosis-related lung disease. The examiner concluded that the Veteran's chronic obstructive disorder (COPD), emphysema, bronchitis, hypertension, and coronary artery disease (CAD) were not caused by or a result of asbestos-related lung disease because the Veteran did not have asbestosis-related lung disease. The examiner, however, did not provide opinions as to whether any of the diagnosed disorders were caused or aggravated by his claimed exposure to aviation fuel and/or another incident in service. The examiner also did not address whether the Veteran's COPD, emphysema, bronchitis, hypertension, and CAD were caused by asbestos exposure, even if he did not have a known asbestosis-related lung disease, such as asbestosis. For these reasons, the Board remanded the Veteran's claims in December 2012 for a second VA opinion to address these remaining questions. In the second VA examination in February 2013, the examiner again limited the opinions to whether asbestos exposure caused the Veteran's various disabilities. There was no discussion regarding exposure to aviation fuel. In this regard, the Board notes the Veteran's private treating physician, Dr. Wiegmann, in May 2011 noted the Veteran had exposure to aviation fuel, a fact confirmed by the personnel records of record, but he did not feel he had adequate information to link the Veteran's heart disease to the exposure. He noted that some studies have linked hydrocarbons in jet fuel to the development of atherosclerotic heart disease. In addition, the examiner again focused on whether the Veteran had asbestosis but did not address whether the Veteran's COPD, emphysema, bronchitis, hypertension, and CAD were caused by asbestos exposure. A Veteran is not precluded from establishing service connection for a disability other than asbestosis with proof of direct causation even if the disability is not asbestosis or a disease more frequently associated with asbestos exposure. See 38 C.F.R. § 3.303; Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994). Finally, the examiner stated there was no evidence that the Veteran was exposed to asbestos. The Veteran has submitted evidence that there was asbestos in the aviation fuel pumps. Lay evidence concerning the onset of symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The same principle holds true in this instance regarding exposure to asbestos. The Veteran's evidence is competent as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). The Board thus finds the examination is inadequate and a remand is required to obtain this missing information. See 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). The Court held that a remand by the Board imposes upon the Secretary of the VA a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. On remand, the examiner should provide an opinion whether the Veteran's COPD, emphysema, bronchitis, hypertension, and CAD are caused by or related to service, including both aviation fuel exposure and asbestos exposure. As to the claim for an acquired psychiatric disorder, in an October 2014 rating decision, the RO denied service connection for an acquired psychiatric disorder. In March 2015, the Veteran expressed disagreement to the October 2014 rating decision. The RO has not issued a statement of the case addressing the claim and the Board is required to remand the claim. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). 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 October 2014 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. After the record development is completed, provide the Veteran with a VA cardiac examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has a cardiac 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. The examiner must not rely solely on the absence of cardiac symptoms or diagnoses in service as the basis for a negative opinion. The question is whether any current cardiac disability is related to service. The examiner is asked to specifically discuss whether any diagnosed cardiac disability is: a). Caused by or related to aviation fuel exposure; or b). Caused by or related to asbestos exposure. The examiner is asked to specifically discuss Dr. Wiegman's comment that that some studies have linked hydrocarbons in jet fuel to the development of atherosclerotic heart disease. A complete rationale for any opinion offered should be provided. 3. After the record development is completed, provide the Veteran with a VA pulmonary examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether the Veteran has a pulmonary 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. The examiner must not rely solely on the absence of pulmonary or respiratory symptoms or diagnoses in service as the basis for a negative opinion. The question is whether any current heart disability is related to service. The examiner is asked to specifically discuss whether any diagnosed pulmonary disability is: a). Caused by or related to aviation fuel exposure; or b). Caused by or related to asbestos exposure. A complete rationale for any opinion offered should be provided. 4. After the record development is completed, provide the Veteran with a VA hypertension examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to determine whether it is at least as likely as not (50 percent probability or more) that hypertension began in service or is causally and etiologically related to service. The examiner must not rely solely on the absence of hypertension symptoms or diagnoses in service as the basis for a negative opinion. The question is whether any current heart disability is related to service. The examiner is asked to specifically discuss whether hypertension is: a). Caused by or related to aviation fuel exposure; or b). Caused by or related to asbestos exposure. A complete rationale for any opinion offered should be provided. 5. After the development requested is completed, readjudicate the claims for service connection for a respiratory disability, cardiac disability, and hypertension. If any 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. 6. Furnish the Veteran a statement of the case on the claim for an acquired psychiatric disorder as denied in an October 2014 rating decision. In order to perfect an appeal of the claim, the Veteran must still timely file a substantive appeal 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).