Citation Nr: 18150738 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-48 270 DATE: November 15, 2018 REMAND Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), claimed as secondary to asbestos exposure, is remanded. INTRODUCTION The appellant served on active duty in the United States Navy from June 1955 to July 1958. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for “asbestos in the lung.” In light of the evidence of record and the appellant’s contentions, the Board has recharacterized the issue as set forth above on the cover page of this decision. As this case is being remanded, no prejudice to the appellant has resulted from the Board’s recharacterization of the issue. REMAND The appellant contends that he was exposed to asbestos in the course of his naval duties in the boiler room of his ship. He asserts that he was constantly exposed to asbestos without breathing protection, and that this is the cause of his current respiratory disability and symptoms. After a review of the evidence of record, the Board concludes that additional evidentiary development is necessary. As an initial matter, the Board finds that the record is sufficient to establish that the appellant was exposed to asbestos during active duty. In statements in clinical settings and in support of his claim, the appellant has described having handled asbestos insulation aboard the U.S.S. Ammen while working in the boiler room. He stated that he handled raw insulation, without masks or filters. The Board finds that the appellant’s statements in this respect are credible as they are consistent with his service personnel records, which confirm that his military occupational specialty was Boiler Operator, a position with a high probability of asbestos exposure. Considered with the medical evidence of record which found the appellant has the indicia of asbestos exposure, the Board finds the evidence is at least in equipoise as to whether the appellant was exposed to asbestos while on active duty, and as such, finds that this element of service connection is met. 38 C.F.R. § 3.303. The record, however, remains unclear as to whether the appellant’s current respiratory disability is causally related to that in-service asbestos exposure. In support of his claim, he has submitted an October 2015 letter from Deep South Asbestos Litigation, LLC advising him that he had “tested positive” for asbestos exposure based on a reading of his chest x-ray by a private doctor in October 2015. Those chest X-rays or radiographic reports, however, are not of record, rendering this letter of little probative value in establishing a current diagnosis. The appellant underwent a VA examination in October 2016. He reported that he had worked as a fireman on a warship from 1955 to 1958, during which time he handled and applied raw asbestos to make blankets for steam lines. The examiner diagnosed the appellant as having chronic obstructive pulmonary disease (COPD). The examiner concluded that the appellant’s COPD was less likely than not related to his active service. Rather, the examiner indicated that it was more likely related to “decades of tobacco use,” although the record at the time of the VA examination contained no reported tobacco use history. The examiner ruled out an asbestos-related disability based on a chest x-ray and chest CT scan taken at the time of the examination. The examiner acknowledged the Deep South Asbestos Litigation letter noting that a chest x-ray had shown that the Veteran had “tested positive” for asbestos. However, the examiner explained that chest x-rays were less conclusive (i.e. not the “gold standard”) in diagnosing asbestos-related illness. In February 2017, the appellant submitted additional evidence, including a January 2017 letter from a nurse practitioner from the Birmingham Pulmonary Group who indicated the appellant had been evaluated in December 2016 for shortness of breath, including with a CT scan and a pulmonary function test (PFT). She noted that the PFT had shown COPD, the same disability diagnosed by the October 2016 VA examiner, and further similarly noted that COPD was usually a disease found in smokers. She indicated that although it could be inherited, the appellant’s lab work had been normal, indicating that it was not hereditary. The nurse practitioner also indicated that a CT scan had shown a small amount of fluid around the right lung for which diuretics had been prescribed. She indicated that the CT scan would be repeated to see if the fluid was gone. The nurse practitioner, however, did not comment on the etiology of the appellant’s COPD and fluid on the right lung, to include whether either condition was due to service. In addition, the Board observes that records from Birmingham Pulmonary Group have not been associated with the record. The appellant also submitted a December 2016 letter from Kathleen Warner, M.D., who noted that the appellant had smoked one pack of cigarettes daily from 1956 to 1959. He had also been exposed to asbestos while in the Navy. She concluded that the appellant’s “chest x-ray findings are consistent abnormal with asbestos related lung disease,” and that PFT “are consistent with restrictive lung disease.” This finding of restrictive lung disease conflicts with the findings of the Birmingham Pulmonary Group, who concluded that the appellant’s PFT’s showed obstructive lung disease. Dr. Warner indicated that given the appellant’s history of significant asbestos exposure and the diagnostic testing performed, “I feel with reasonable certainty that the patient does suffer from bilateral asbestos-related lung disease.” Dr. Warner, however, did not provide a rationale for her diagnosis, nor did she comment on the etiology of the appellant’s previously diagnosed COPD. In April 2017, the appellant underwent a second VA examination which again only diagnosed the appellant with COPD, although it did concede he had significant asbestos exposure during his active duty service. The examiner reviewed the appellant’s radiographic results and determined that the appellant was not at least as likely as not suffering from an asbestos related disability because, the changes over time in his imaging studies were not typical of asbestos related lung disease but, rather, were indicative of emphysematous changes. In an August 2017 VA Form 9, the appellant claimed that he had “never been” a cigarette or cigar smoker, despite the medical history recorded by Dr. Warner. In summary, after reviewing the evidence of record, the Board finds that clarification is necessary as to the nature and etiology of the appellant’s current respiratory disability. As set forth above, Dr. Warner has diagnosed the appellant with a vague “asbestos-related lung disease.” She neither specified the nature of that disease nor did she comment on the appellant’s previously-diagnosed COPD, rendering her opinion of little probative value. The remainder of the clinical evidence suggests that the appellant has been diagnosed as having COPD and that this disability is likely due to smoking. The appellant’s private treatment provider explained that COPD is usually due to smoking and the VA examiner indicated that the appellant’s COPD is likely due to “decades of tobacco use.” The appellant, however, has provided conflicting statements regarding his tobacco use history, further complicating the matter. Thus, the matter is REMANDED for the following action: 1. After obtaining the necessary information and authorization from the appellant, contact Deep South Asbestos Litigation, LLC; Birmingham Pulmonary Group; and Dr. Kathleen Warner and ask them to provide records relevant to the appellant’s claim of service connection for a respiratory disability. 2. Afford the appellant an examination to determine the nature and etiology of his current respiratory disability. Access to claims file should be made available to the examiner for review in connection with the examination. Following examination of the appellant (to include taking a medical history which clarifies the appellant’s smoking history and post-service occupational exposure) and review of the claims file, the examiner should identify all current respiratory disabilities and lung pathology. The examiner should then provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current respiratory disability or lung pathology is causally related to the appellant’s active service or any incident therein, to include in-service exposure to asbestos. In providing the requested opinion, the examiner must address the relevant evidence of record, to include: (1) service treatment records which contain a July 1955 X-ray study showing a small calcific nodule in the right lung; (2) the appellant’s credible reports that he was exposed to asbestos while on active duty; (3) the December 2016 opinion from Dr. Warner cited above.   A clear rationale for all opinions must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel