Citation Nr: 18142980 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 99-18 370A DATE: October 18, 2018 REMANDED Entitlement to service connection for an asbestos-related pulmonary disability is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1966 to August 1969. This matter was previously before the Board on several occasions. The Board remanded the matter in February 2004 for additional procedural and evidentiary development. In February 2006, the Board denied the claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which, in February 2008, vacated the denial and remanded the matter for further consideration. The Board subsequently remanded the matter for additional development in May 2008, April 2012, and March 2016. In March 2017, the Board again denied the claim. The Veteran again appealed the matter to the Court. In a November 2017 Joint Motion for Remand (JMR), the parties agreed that the Board’s March 2017 decision should be vacated and the case remanded for further development. The Veteran testified at a July 2003 hearing held before a Veterans Law Judge (VLJ) via videoconference from the Regional Office (RO); a transcript of the hearing is associated with the claims file. The hearing included testimony regarding the Veteran’s asbestosis. In January 2016, the Board informed the Veteran that the VLJ who had presided over the hearing was no longer available, and could not participate in the adjudication of the claim as required. See 38 U.S.C. § 7107 (2012); 38 C.F.R. § 20.707 (2017). The Veteran was offered an opportunity for a new hearing, but he declined in a January 2016 reply. The Board must remand the matter on appeal to ensure compliance with its March 2016 remand directives and the November 2017 JMR, as well as to allow the Agency of Original Jurisdiction (AOJ) to review newly-submitted evidence in the first instance. See Stegall v. West, 11 Vet. App. 268 (1998). In pertinent part, in its March 2016 remand directives, the Board directed the AOJ to schedule the Veteran for a VA respiratory (Obstructive, Restrictive, and Interstitial) examination with a pulmonologist or another examiner who can demonstrate specialized knowledge or experience in the area of pulmonary or asbestos-related disease. The Board’s remand instructions indicated that the qualifications of the examiner must be clearly stated in the examination report. While the Veteran was examined by a VA examiner in May 2016, this examiner did not state that he specialized in pulmonology. However, this examination report included a pulmonologist consultation report authored by “Dr. RDM,” who is a board-certified pulmonologist since 1999. Additionally, the Veteran underwent another VA examination in January 2017, which was conducted by “Dr. ECV,” who stated that she was certified in family medicine. To date, the Veteran was not examined by a pulmonologist or another examiner who can demonstrate specialized knowledge or experience in the area of pulmonary or asbestos-related disease in contravention of the Board’s March 2016 remand directives. Following the Board’s March 2017 denial of the claim of entitlement to service connection for an asbestos-related pulmonary disability, the November 2017 JMR instructed the Board to obtain an examination report authored by a pulmonologist or specialist if this was required. While the Veteran’s attorney submitted a July 2018 letter from a private pulmonologist discussing the Veteran’s current disorder and its relationship to the Veteran’s active duty service, the record does not indicate that the Veteran or his attorney waived initial review of this evidence by the AOJ. Generally, the Board may not consider additional evidence not previously reviewed by the AOJ unless a waiver of initial AOJ review is obtained from a claimant. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c) (2017). Although 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a claimant submits evidence to the AOJ or the Board with, or after submission of a substantive appeal to the Board (VA Form 9), this provision is only applicable to cases where the VA Form 9 was filed on or after February 2, 2013. 38 U.S.C. § 7105(e) (2012). The record shows that the Veteran filed his VA Form 9 in September 1999. As there is no indication that the Veteran has waived initial AOJ adjudication, a remand is required in the case for the AOJ to consider the new evidence relevant to this service connection claim. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA Respiratory (Obstructive, Restrictive, and Interstitial) examination with a pulmonologist or another examiner who can demonstrate specialized knowledge or experience in the area of pulmonary or asbestos-related disease. The qualifications of the examiner must be clearly stated in the examination report. The claims folder must be reviewed in conjunction with the examination. The examiner must obtain a history from the Veteran regarding his exposure to asbestos, both in service as a combat engineer working with heavy equipment, to include mechanics duties (e.g., working with brake pads) and after service, with an 18-year history in maintenance work at a paper company. The examiner must also identify all current disabilities of the lungs; any necessary testing, to include imaging or pulmonary function tests (PFTs), must be conducted in support of such. Based upon a review of the relevant evidence, history provided by the Veteran, and sound medical principles, the VA examiner should: a. Identify and diagnose any pulmonary disorders, to include an asbestos-related pulmonary disability, during the appeal since January 1995. In rendering the above opinion, the examiner should discuss the significance of the March 1994 finding by “Dr. LMM” of “pulmonary asbestosis” and the March 2000 VA examination finding of “mild restrictive pulmonary disease, possibly related to asbestos exposure.” See VBMS entry with document type, “VA Examination,” receipt date 03/29/2000. b. Provide an opinion as to whether any diagnosed disorder, to include an asbestos-related pulmonary disability, is at least as likely as not caused or aggravated by the Veteran’s active duty service from August 1966 to August 1969. The role of established asbestos exposure on active duty must be discussed. In rendering the above opinions, the examiner should discuss the significance of the findings and opinions of the May 2016 and January 2017 VA examiners, the July 2018 private pulmonologist, and Dr. RDM in the pulmonologist consultation report. See (1) VBMS entry with document type, “C&P Exam,” receipt date 05/23/2016, at pages 1-7; (2) VBMS entry with document type, “C&P Exam,” receipt date 01/12/2017, at pages 1-14; and (3) VBMS entry with document type, “Correspondence,” receipt date 08/22/2018, at page 30. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 2. After completing Step 1, and any other development deemed necessary, readjudicate the claim of entitlement to service connection for an asbestos-related pulmonary disability in light of the new evidence, including the July 2018 letter from a private pulmonologist and the new VA examination report conducted by a pulmonologist or another examiner who can demonstrate specialized knowledge or experience in the area of pulmonary or asbestos-related disease. If any benefit sought on appeal remains denied, a supplemental statement of the case (SSOC) should be furnished to the Veteran and his attorney, and they should be afforded a reasonable opportunity to respond.   A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel