Citation Nr: 1802911 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-32 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a respiratory condition, to include asthma, chronic obstructive pulmonary disorder (COPD), and bronchitis, to include as due to smoke inhalation and asbestos exposure. REPRESENTATION Appellant represented by: Polly Murphy, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 1984, and served in the Army National Guard from June 1985 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing conducted at the RO in April 2013. A copy of the transcript has been associated with the claims file. In September 2014, the Board remanded the claim for additional development. In April 2016, the Board denied the Veteran's claim. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), which by May 2017 Order, granted a May 2017 Joint Motion for Remand. The Joint Motion vacated the Board's decision and remanded the matter for compliance with the instructions in the Joint Motion. The case has thus been returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has claimed entitlement to service connection for a respiratory disability. He essentially contends that this disability developed as a result of substance exposure in-service. VA concedes that the Veteran was exposed to asbestos in service while performing his duties as an F-14 aircraft systems organizational maintenance technician. VA also concedes that the Veteran was exposed to smoke and other substances while fighting a large fire while in the Navy. (See November 1983 letter from the United States Department of the Navy.) Specifically, the Veteran's representative has identified exposures to "airborne smoke, toxins from burning materials on board ship, and inhalation of airborne particles, paint, [and] burning fuel." (See December 2017 statement from Veteran's representative.) The May 2017 Joint Motion states that the Board has relied on two inadequate medical examinations in denying the Veteran's claim of entitlement to service connection for a respiratory condition. First, it states that an October 2015 examination was inadequate because it relied on an inaccurate factual premise. Specifically, its rationale cites the absence of asbestos exposure in service. However, the Joint Motion notes, the Board itself has conceded asbestos exposure in its decision. Therefore, it is necessary to remand this claim to obtain an opinion that takes into consideration the fact that the Board has conceded in-service asbestos exposure. Second, the Joint Motion notes that the July 2012 examination was inadequate because the examiner determined that the Veteran's only existing diagnosis at the time was asthma, but the examiner did not discuss other treatment records that appeared to indicate otherwise. It noted a January 2004 VA medical record showing mild restrictive lung disease and a January 2004 chest x-ray showing underlying mild COPD. The Joint Motion indicated that it was necessary to obtain an opinion that discusses these records, to include whether such records are indicative of an underlying respiratory condition other than solely asthma. The VA examiner who authors the requested opinion should also discuss any exposures that occurred in connection with the fire aboard the USS Ranger while the Veteran was stationed on that ship. The examiner should also discuss the article that the Veteran's representative submitted entitled "Airborne Killers: Fine Particles in the Lungs" from the June 2005 Harvard Magazine. In a December 2017 statement, the Veteran's accredited representative has requested that VA specifically perform Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) testing in order to test for interstitial lung disease. Given that the Veteran is being examined for asbestosis, the examiner should conduct DLCO (SB) testing or explain why such testing is not necessary. The Joint Motion also noted that the results of a July 24, 2012, Pulmonary Function Test (PFT) had been referenced by the July 2012 VA examiner, but that this record was not in the claims file. The Joint Motion noted that, while the April 2016 Board decision had determined that the PFT results had been associated with the claims file, the record that was being referenced did not appear to include the actual PFT report and results. It notes that the record that has been associated with the claims file notes "PFT CONSULT Has ADDENDA" with the instruction to "[s]ee Vista Imaging Display for PFT Report." However, this report itself is not in the claims file. On remand, the AOJ should obtain the July 24, 2012, PFT Report and results. Accordingly, the case is REMANDED for the following action: 1. Obtain the July 24, 2012 PFT test and results that have been noted to be contained in a VISTA Imaging Display addendum. 2. Following completion of the above, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed respiratory disability by a physician (M.D.). The Veteran's file should be made available for review by the examiner. The examiner should review the file and this fact should be noted in the accompanying medical report. All appropriate testing should be conducted. Specifically, the examiner should conduct DLCO (SB) testing or explain why such testing is not necessary. The examiner must diagnose all respiratory disabilities that the Veteran has had since he filed his claim in August 2010. In doing so, the examiner should discuss (a) the January 2004 VA medical record showing mild restrictive lung disease, and (b) the January 2004 chest x-ray showing underlying mild COPD, and determine whether diagnoses of restrictive lung disease or COPD are warranted. For each diagnosed disability, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disability is related to the Veteran's military service. In providing this opinion, the examiner should discuss the Veteran's conceded exposures to (a) asbestos and (b) smoke and other particulate matter that would have been present during a large ship fire. In offering this opinion, the examiner should consider and discuss the article "Airborne Killers: Fine Particles in the Lungs" from the June 2005 Harvard Magazine, that was submitted by the Veteran's accredited representative in December 2017. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. After the development requested above has been completed, again review the record and readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, 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). _________________________________________________ TANYA SMITH 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) (2017).