Citation Nr: 1622369 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 14-11 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to October 1957. The Veteran died in April 2012. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) St. Paul Pension Management Center in St. Paul, Minnesota (RO), that denied the appellant's claim. The appellant filed a notice of disagreement dated in September 2013, and the RO issued a statement of the case dated in March 2014. The appellant submitted her substantive appeal in March 2013. In her substantive appeal, the appellant requested an opportunity to testify before a Veterans Law Judge at the local regional office. This hearing was scheduled for May 2015. The appellant, however, did not appear at the hearing and the request was deemed withdrawn. 38 C.F.R. § 20.704(d) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran died in April 2012. The death certificate indicates that the immediate cause of death was pulmonary fibrosis due to or as a consequence of asbestosis. Prior to his death, the Veteran was diagnosed with a number of pulmonary conditions, including chronic obstructive pulmonary disease (COPD), bronchiectasis with exacerbations/hemoptysis requiring transfusions, and interstitial fibrosis. He was indicated to be oxygen dependent from at least 2006. An October 2011 VA treatment note indicated that the Veteran had IPF with COPD with chronic hypoxic respiratory failure. The Veteran was noted to have severe emphysema with pulmonary fibrosis on prior CT scan along with right basilar pleural thickening from prior asbestos exposure. The Veteran's service records indicate that the Veteran's MOS in the service was woodworker/carpenter. The RO, in requesting an examination in connection with the claim, noted this military occupational specialty and reported that the Department of Defense recognizes a "probable" level of exposure to asbestos as a result of this position. In order to determine whether it was at least as likely as not that the veteran's diagnosis of pulmonary fibrosis was caused or aggravated by his probable asbestos exposure during his period of active military service, a medical opinion was obtained from a VA physician in July 2013. The physician reviewed the Veteran's medical records dated since 2005. The Veteran was diagnosed with various respiratory conditions and was noted to be an ex-smoker, having quit approximately 25 years prior to the earlier treatment notes. The Veteran was reported to be a retired jeweler. The physician noted an August 2010 pulmonary treatment note that indicated that the Veteran had moderate to severe COPD, oxygen dependent since 2004. The note indicated that a CT showed stable emphysema with fibrotic changes and stable right pleural thickening with calcification, that may be related to prior asbestos exposure. After a review of the evidence, the physician found that it was less likely as not that the Veteran's diagnosis of pulmonary fibrosis was caused or aggravated by his asbestos exposure during his period of active military service. The physician found that, although the death certificate notes a diagnosis of "asbestosis," the veteran was not given this diagnosis during his lifetime by any of the multiple pulmonologists which evaluated him. The diagnosis was idiopathic (unknown etiology) pulmonary fibrosis. In this regard, the Board notes that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos -related diseases. However, guidelines governing claims for service connection for asbestos -related diseases are contained in VA's Adjudication Procedures Manual. See VBA Manual M21-1, IV.ii.1.I.3 and VBA Manual M21-1, IV.ii.2.C.2 The Manual provisions acknowledge that inhalation of asbestos fibers may produce fibrosis, including interstitial pulmonary fibrosis or asbestosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). VBA Manual M21-1, IV.ii.2.C.2.b. Prior to his death, the Veteran had diagnoses of several respiratory disorders, as noted above, including disorders which may be associated with asbestos exposure. See VBA Manual M21-1, IV.ii.2.C.2.b. The VA physician's July 2013 opinion is inadequate because it indicates that the pulmonary fibrosis was not related to the in-service asbestos exposure because the Veteran was not diagnosed with asbestosis. However, the manual provisions make clear that pulmonary fibrosis may itself be due to asbestos exposure. Moreover, some of the Veteran's medical records indicate that the Veteran had right basilar pleural thickening from prior asbestos exposure or that "may be related to prior asbestos exposure." These records do not, however, give a rationale for their conclusion and are mostly stated in terms equivalent to may or may not, and are therefore entitled to little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to "may or may not" is an insufficient basis for an award of service connection). Because the evidence indicates that the Veteran had probable asbestos exposure in service, the Veteran died from pulmonary fibrosis, and VA's manual provisions acknowledge that inhalation of asbestos fibers may produce fibrosis, the Board finds that additional opinion is required. A new opinion from an appropriate specialist physician should therefore be obtained, which should specifically acknowledge VA's position that inhalation of asbestos fibers may produce fibrosis, including interstitial pulmonary fibrosis (ii) the Veteran's likely asbestos exposure in service, (iii) the Veteran medical records that indicate past exposure to asbestos, including the notations indicating pleural thickening that may be related to prior asbestos exposure, and (iv) the appellant's reports in her September 2013 notice of disagreement regarding the Veteran's post-service employment, that, according to the appellant, did not include exposure to asbestos. Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion from an appropriate specialist physician as to whether there is any relationship between the pulmonary fibrosis that caused the Veteran's death and his probable asbestos exposure in service. The claims file must be sent to the physician for review. The physician should first indicate whether it at least as likely as not (i.e., at least a 50 percent probability) that the pulmonary fibrosis that caused the Veteran's death was etiologically related to asbestos exposure in service. The physician should also express an opinion as to whether the pulmonary fibrosis was due to or a consequence of asbestosis as indicated on the death certificate. Consideration must be given to the death certificate and the medical records contained in the Veteran's record. The VA examiner should specifically acknowledge: (i) VA's position that inhalation of asbestos fibers may produce fibrosis, including interstitial pulmonary fibrosis (ii) the Veteran's likely asbestos exposure in service, (iii) the Veteran medical records that indicate past exposure to asbestos, including the notations indicating pleural thickening that may be related to prior asbestos exposure; and (iv) the appellant's reports in her September 2013 notice of disagreement regarding the Veteran's post-service employment, that, according to the appellant, did not include exposure to asbestos. A complete rationale should accompany each opinion provided. 2. Thereafter the claim should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. 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). _________________________________________________ Jonathan Hager 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).