Citation Nr: 1612912 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 10-42 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for emphysema. 2. Entitlement to service connection for asbestosis, claimed as scarring of the lungs. ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to December 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in April 2013 wherein the Board denied the benefits sought on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2014, the Veteran and VA's Office of General Counsel filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication. The Court granted the Joint Motion and returned the case to the Board. Pursuant to the Joint Motion for Remand, the Board remanded the matter in September 2014 for additional treatment records. In June 2015, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). In September 2015, the Board remanded the appeal to afford the Veteran a VA examination to determine the nature and etiology of his claimed emphysema and asbestosis. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, it is necessary to remand the claim to comply with the September 2015 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2015, the Board remanded the appeal to afford the Veteran a VA examination to determine the nature and etiology of his claimed emphysema and asbestosis. In December 2015, the Veteran was afforded a VA examination. The VA examiner did not provide an opinion regarding whether it was at least as likely as not that the Veteran's claimed emphysema and asbestosis were related to active service. Additionally, the Veteran failed to address the January 2013 VA examination report, CT scans in April 2009 and April 2010, as well as VA treatment records from May and July 2010 showing pleural thickening in the Veteran's lungs. Therefore, another remand is necessary to obtain an addendum VA medical opinion to address the questions posed in the September 2015 remand directives. Accordingly, the case is REMANDED for the following actions: 1. Refer the Veteran's VA claims file to the VA examiner who conducted the September 2015 VA examination, or if unavailable, another suitably qualified VA medical professional, for a supplemental opinion as to the nature and etiology of the Veteran's claimed emphysema and asbestosis. If, after review of the claims file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The claims file, including any radiology images and pulmonary function tests, must be made available to the examiner for review. The examiner should conduct a thorough examination and identify any pathology found. For any diagnosed disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the condition is etiologically related to the Veteran's active service, including conceded asbestos exposure. In providing this opinion, the examiner should specifically address the January 2013 VA examination report, CT scans in April 2009 and April 2010 as well as VA treatment records from May and July 2010, which show pleural thickening in the Veteran's lungs. If pleural thickening is shown in the Veteran's records or at the time of examination, the examiner should specifically address its significance in the context of whether there is a relationship, if any, between the Veteran's condition(s) and inservice asbestos exposure. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should state and explain why an opinion cannot be provided without resort to speculation. 2. Upon completion of the above, readjudicate the issues on appeal. If any benefits remain denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).