Citation Nr: 1827080 Decision Date: 05/03/18 Archive Date: 05/14/18 DOCKET NO. 14-39 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a dental disability (claimed as loss of lower and upper teeth), for the purpose of obtaining VA compensation. 2. Entitlement to service connection for a respiratory disorder, to include as due to exposure to asbestos and herbicide (Agent Orange) exposure. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the United States Army from July 1965 to June 1971. This included service in the Republic of Vietnam (in-country) from November 1966 to November 1967 and from November 1968 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2014 and June 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In March 2018, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's claims file. The issue of entitlement to service connection for a dental condition for treatment purposes only has been raised by the record. See April 2012 claim for a dental disability / condition. In this respect, a claim for service connection for a dental disability on a compensable basis is also considered to be a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). A veteran may be entitled to service connection for noncompensable dental conditions, including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.381, 17.161 (2017). Simply stated, such disabilities, while they may receive treatment by VA, do not receive compensation by VA. Nevertheless, in the April 2014 rating decision on appeal, the AOJ advised the Veteran that a copy of his August 2012 dental claim was forwarded to the VHA Dental Clinic Eligibility Section at the VA Medical Center, who is responsible to determine whether the Veteran is eligible for any dental treatment. See 38 C.F.R. § 3.381(a) (2017); VBA Live Manual, M21-1, Part III, Subpart V, Chapter 7, Section B, Topic 2, Block a (April 23, 2015). Any inquiries concerning possible eligibility for VA dental treatment should therefore be directed to the Eligibility Section of the Dental Clinic at the VA Medical Center in question. In summary, the separate issue of service connection for a dental condition for treatment purposes only is not on appeal before the Board at this time. And based on the favorable decision below awarding service connection for a compensable dental disability, service connection for a dental condition for treatment purposes only would likely be moot. The issue of service connection for a respiratory disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is an approximate balance of favorable and unfavorable evidence as to whether the Veteran has a compensable dental disability under 38 C.F.R. § 4.150 (loss of all lower teeth in the mandible) as the result of trauma to the jaw during an in-service assault. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, a compensable dental disability ("Class I" eligibility) was incurred in active military service. 38 U.S.C. §§ 1110, 1712, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.381, 4.150 (Diagnostic Code 9913), 17.161(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant service connection claim for a compensable dental disability. However, the Veteran was provided adequate VCAA notice for this claim in May 2013. Moreover, if any defect in VCAA notice or assistance is found, such defect is not prejudicial to the Veteran, given the completely favorable disposition of the service connection appeal for a compensable dental disability. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); VAOPGCPREC 16-92. II. Service Connection for a Compensable Dental Disability - Section 4.150 Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Initially, any dental disorder at issue (loss of lower and upper teeth) is not an enumerated "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply here. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Federal Circuit Court recently held that diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a). Walker, 708 F.3d at 1338-39. Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Under VA regulations, VA compensation is available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150. These conditions include loss of whole or part of the mandible, nonunion or malunion of the mandible, loss of whole or part of the ramus, loss of whole or part of the maxilla, nonunion or malunion of the maxilla, limited motion of the temporomandibular articulation, loss of the condyloid or coronoid process, or loss of any part of the hard palate. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. VA compensation is also available for loss of teeth, but only if loss of teeth is due to loss of substance of body of maxilla or mandible. See Simington v. West, 11 Vet. App. 41 (1998). For loss of the teeth, bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. In addition, to be compensable, the lost masticatory surface for any tooth cannot be restorable by suitable prosthesis. Id. Otherwise, as noted above in the introduction section of this decision, a veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met, as already discussed above. 38 U.S.C. § 1712 (2012); 38 C.F.R. §§ 3.381, 17.161 (2017). And as discussed above, the AOJ has already referred the claim for VA dental treatment to the appropriate VA Medical Center / VHA dental clinic for a determination of eligibility. See 38 C.F.R. § 3.381(a) (2017); VBA Live Manual, M21-1, Part III, Subpart V, Chapter 7, Section B, Topic 2, Block a (April 23, 2015). When applicable, a determination will be made as to whether the noncompensable dental condition is due to a combat wound or other service trauma, or whether a veteran was interned as a prisoner of war (POW). 38 C.F.R. § 3.381(a). The significance of finding a noncompensable dental condition is due to service trauma is that a veteran will be eligible for VA dental treatment for the condition, without the usual restrictions of timely application and one-time treatment. 38 C.F.R. § 17.161(c) (referred to as "Class II(a)" eligibility). But the significance of a veteran having a service-connected compensable dental disability or condition is that he or she may be authorized any dental treatment indicated as reasonably necessary to maintain oral health and masticatory function. There is no time limitation for making an application for treatment and no restriction as to the number of repeat episodes of treatment. 38 C.F.R. § 17.161(a) (referred to as "Class I" eligibility). This is the issue the Board will address in the present case - whether the Veteran is entitled to "Class I" eligibility from VA for his dental problems. This "Class I" eligibility is what the Veteran is seeking. Each defective or missing tooth and disease of the teeth and periodontal issue is considered separately to determine whether the condition was incurred or aggravated in line of duty during active service. 38 C.F.R. § 3.381(b). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). At the outset, effective February 29, 2012 and effective September 10, 2017, VA regulations pertinent to dental claims were revised twice. The effect of both actions was taken to ensure that the Rating Schedule used current medical terminology and to provide detailed and updated criteria for evaluation of dental and oral conditions for disability rating purposes and to amend regulations regarding service connection of dental conditions for treatment purposes. See 82 Fed. Reg. 36080 (Aug. 3, 2017); 77 Fed. Reg. 4469 (Jan. 30, 2012). However, these amendments made no changes applicable to Diagnostic Code 9913 (loss of teeth). In short, the two sets of dental amendments do not impact the current dental compensation claim on appeal. The Veteran has alleged that before his enlistment into the Army in 1965, his teeth and gums were in good shape. However, in August of 1969, he fell after being assaulted by another soldier. In the process, he sustained a compound fracture of the left mandible. Thereafter, he underwent several oral reduction surgeries during active duty. He believes that his broken jaw during active duty in 1969 led to the progressive loss of his lower and upper teeth, both during and after service. As a result, after his in-service fracture of the mandible, his mouth has never been right. He has lost his teeth, he has difficulty speaking and eating, and this has caused him mental stress. See August 2012 dental claim; May 2014 NOD; November 2014 VA Form 9; March 2018 videoconference hearing at pages 1-6. The RO has already service-connected the Veteran for his fracture of the left mandible in an August 1991 rating decision. The RO assigned a noncompensable (0 percent rating) for the Veteran's fracture of the left mandible under 38 C.F.R. § 4.150, Diagnostic Code 9904 (malunion of the mandible). This 0 percent rating represents "slight" displacement of the mandible. Upon review of the evidence of record, the Board concludes that service connection for a compensable dental disability under 38 C.F.R. § 4.150 is warranted - loss of all lower teeth in the mandible. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has a current compensable dental or oral disability for which benefits are being claimed under 38 C.F.R. § 4.150. Here, recent VA medical evidence confirms that the Veteran has lost all 32 of his teeth. The loss of teeth includes loss of the masticatory surface. The loss of masticatory surface cannot be restored by suitable prosthesis. He is not able to use his dentures for either the mandible or maxilla. See January 2008 VA dental examination; May 2009 and September 2009 VA internal medicine notes; June 2008, September 2009, September 2011 VA preventive medicine notes. Moreover, VA dental treatment notes in May 2009 and September 2009 record an "edentulous" maxilla and mandible. "Edentulous" is defined as without teeth or having lost some or all natural teeth. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 594 (32nd ed. 2012). Therefore, this evidence would establish a current compensable dental disability for loss of teeth under 38 C.F.R. § 4.150, Diagnostic Code 9913 (loss of teeth). But service connection under 38 C.F.R. § 4.150 is still conditioned upon a finding of a nexus between this current loss of teeth with bone loss and the documented in-service trauma to the jaw during his military service in 1969. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Once again, for loss of the teeth, bone loss through trauma or disease, such as osteomyelitis, must be shown for compensable purposes. The loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. On this issue of a nexus to service, the record is mixed and reflects several favorable and unfavorable medical opinions pertinent to the Veteran's compensable dental disability claim. The Veteran's service dental records document that at enlistment in July 1965, all 32 of his teeth were present. There was no evidence of cavities or gingivitis at that time. However, in August of 1969, he fell after being assaulted by another soldier. In the process, he sustained a compound fracture of the left mandible and was hospitalized. (The mandible is defined as the jaw or lower jawbone). Thereafter, the Veteran underwent several in-service oral reduction surgeries to reduce the fracture during active duty in August 1969. Dental X-rays revealed that the mandibular left third molar (tooth number 17 or the wisdom tooth) was involved in the line of the fracture, and the fracture extended into the body and socket of this molar. A September 1969 service dental "narrative summary" revealed that after the fracture, his teeth were subsequently held together by an intermaxillary elastic traction applied to arch bars. Tooth number 17 (wisdom tooth or third molar) was extracted under local anesthesia. A September 1970 service dental examination and June 1971 service dental separation examination revealed that teeth numbered 17, 18, 19, and 30 had been extracted from the mandible by that time. There was also evidence of "moderate" calculus and a few cavities. Trauma, as defined for purposes of dental treatment eligibility, connotes damage caused by the application of sudden, external force, brought to bear outside a clinical setting (sustaining a sudden trauma); for these purposes, the term "service trauma" does not include the intended effects of therapy or restorative dental care and treatment provided during a Veteran's military service. 38 C.F.R. § 3.306 (b)(1); VAOGCPREC 5-97; see also Nielson v. Shinseki, 607 F.3d 802, 808-09 (2010) (holding that "service trauma" in 38 U.S.C. § 1712 (a)(1)(C) means an injury or wound produced by an external physical force during the service member's performance of military duties; this definition excludes the intended result of proper medical treatment and psychological stress not the result of malpractice). In the present case, there clearly was an in-service incident of "trauma" in August 1969, in which tooth number 17 had to be extracted due to the fracture of the mandible. The question remains whether this documented in-service "trauma" to the mandible caused the gradual progression of a loss of substance of the maxilla or mandible, resulting in the loss of his remaining teeth post-service, or whether his remaining teeth were extracted post-service due to mere periodontal infection. The Board has considered that the loss of the alveolar process as a result of periodontal disease is not considered disabling. See 38 C.F.R. § 4.150, Diagnostic Code 9913. With regard to the favorable evidence, a January 2008 VA QTC dental examiner noted the Veteran broke his jaw while falling during an attack in-service. The current symptoms are "no teeth." This would appear to imply a nexus between his loss of teeth and his in-service trauma by physical force. But then, confusingly, the VA examiner concluded the loss of teeth is due to "gross decay." Thus, the January 2008 VA dental opinion is confusing and inconclusive. With regard to the favorable evidence, a July 2013 VA TMJ and dental examiner performed a physical examination of the Veteran's teeth and jaw. The VA examiner opined that after a review of the STRs, the claimed dental condition is due to or the result of the in-service left mandible fracture. At present, the VA examiner observed the Veteran has a healed mandibular fracture and loss of teeth. Importantly, the VA examiner assessed that "[t]raumatic and progressive loss of teeth is a known secondary effect of the mandibular fracture." Based on the medical record evidence, this VA examination, and the known etiology and progression of the conditions involved, the VA examiner determined that the Veteran's current dental disability is secondary to his service-connected left mandible fracture that occurred in service. It is not clear to what extent the VA examiner reviewed the post-service VA treatment records dated from 1999 to 2014. It is also unclear why an injury to the mandible (lower arch and teeth) would affect the maxilla (upper arch and teeth). With regard to the negative evidence, in a September 2013 VA dental opinion, a different VA examiner noted the ER extraction of teeth numbered 27, 28, and 29 due to dental caries in January 2001. These are lower mandible teeth. This VA examiner opined a recent review of dental records show loss of the Veteran's teeth was due to caries, not the irreparable fracturing of teeth. But the Board notes that this VA examiner failed to comment upon service dental records, which confirmed that at least 4 teeth - numbered 17, 18, 19, and 30, were extracted from the mandible during active duty, a short time after the Veteran's in-service injury to his jaw in August 1969. An adequate medical opinion with regard to etiology should consist of a thorough review of the claims file and discussion of the relevant evidence (including the disability in question), a consideration of the lay contentions of the Veteran, and clear conclusions with a reasoned supporting rationale. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board errs by relying on an inadequate opinion. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). However, a medical opinion does not have to be perfect; rather, it has to be adequate. For instance, there is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). And where the opinion is lacking in detail, "the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination." Acevedo, 25 Vet. App. at 294. As currently codified, VA law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the foregoing, the Board finds that there is an approximate balance of positive and negative evidence on the compensable dental disability issue on appeal. Certain elements of both the positive and negative VA medical opinions in this case are probative. Both sets of evidence have respective strengths and weaknesses. In such situations, the benefit of the doubt is resolved in the Veteran's favor, especially since this case has been pending for 6 years. Given the law and the medical and lay evidence of record, the Board is compelled to grant the Veteran the benefit of the doubt and allow service connection for a compensable dental disability under 38 C.F.R. § 4.150 - in particular, loss of all lower teeth in the mandible. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (There is insufficient evidence of record detailing how the loss of teeth in the upper maxillary part of the jaw could be related to the Veteran's in-service trauma to the lower mandibular part of the jaw, such that at present service connection is not warranted for the upper teeth). In any event, this dental disability for loss of the lower teeth is compensable and can be rated under 38 C.F.R. § 4.150, Diagnostic Code 9913. As such, the Veteran is eligible for a compensable dental condition ("Class I" eligibility). See 38 C.F.R. § 17.161(a). The significance of a veteran having a service-connected compensable dental disability or condition from VA is that the Veteran may be authorized any dental treatment indicated as reasonably necessary to maintain oral health and masticatory function. There is no time limitation for making an application for treatment and no restriction as to the number of repeat episodes of treatment. 38 C.F.R. § 17.161(a) (referred to as "Class I" eligibility). ORDER Service connection for a compensable dental disability under 38 C.F.R. § 4.150 (loss of all lower teeth in the mandible) is granted. REMAND The Board finds that additional development of the evidence is required for the issue of service connection for a respiratory disorder, to include as due to exposure to asbestos and herbicide (Agent Orange) exposure. The Veteran alleges in-service exposure to asbestos from working in and around a motor pool from 1965 to 1971 during active duty in the Army at Fort Irwin, California. He was switched to a base in Texas where he was exposed to asbestos in the tearing down of buildings at the base. He contends this exposure to asbestos during active duty caused the development of emphysema and COPD (chronic obstructive pulmonary disease) in his lungs. See March 2018 videoconference hearing at pages 7-10. In the alternative, the Veteran contends that his emphysema, COPD, or other lung disorders are related to his presumed exposure to Agent Orange or other herbicide agent during his two tours of duty in Vietnam from 1966 to 1969. Initially, the veteran's STRs and a January 2008 NPRC PIES response confirm that the Veteran has "service in Vietnam," such that exposure to herbicide agents to include Agent Orange is presumed. 38 C.F.R. §§ 3.307(a)(6), 3.313(a). A remand is necessary for the following reasons: First, the appropriate developmental procedures for asbestos / asbestosis claims should be completed for due process purposes, in compliance with the provisions of VBA's Live Manual, M21-1, IV.ii.1.I.3.a-f (Aug. 17, 2017). These asbestos claim developmental procedures include the following: * The AOJ should send a VCAA developmental letter to the Veteran requesting specific asbestos exposure information, by selecting certain development paragraphs as provided in M21-1, IV.ii.1.I.3.c; * The AOJ should attempt to secure the Veteran's service personnel records (SPRs) from the appropriate custodian, to determine if there is any information pertinent to asbestos exposure. This request for SPRs should be completed by way of a request in the Personnel Information Exchange System (PIES) using Code O16 for paper claims, or Code O50 for claims processed in the Veterans Benefits Management System (VBMS), or Defense Personnel Records Image Retrieval System (DPRIS) - see M21-1, IV.ii.1.I.3.c; and * The AOJ should determine if asbestos exposure is established by reviewing the following: the M21-1 table listing the probability of asbestos exposure by military occupational specialty (MOS); SPRs; STRs; buddy statements; and any other evidence of record. See M21-1, IV.ii.1.I.3.c-e. Second, a remand is required in order for the AOJ to schedule the Veteran for the appropriate VA examination and opinion addressing what relationship, if any, exists between the Veteran's current respiratory disorders and his military service, on the basis of in-service incurrence due to asbestos exposure and due to presumed herbicide (Agent Orange) exposure. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). In this regard, a medical opinion should address the appropriate theories of entitlement, including direct service connection for non-presumptive disorders (like COPD or emphysema) based on Agent Orange exposure. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Third, since the respiratory disorder issue on appeal is already being remanded for further development, the Board sees the Veteran's VA treatment records on file from the San Diego VA healthcare system in California date to February 2014. If the Veteran has had any additional treatment at the VA, these records should be obtained. VA's duty to assist includes obtaining records of VA medical treatment identified by the Veteran, regardless of their relevance. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). VA must continue to obtain such records unless it is documented that the records do not exist or that further efforts would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA). Accordingly, the respiratory disorder issue is REMANDED for the following action: 1. The AOJ should complete the appropriate developmental procedures for asbestos / asbestosis claims for due process purposes, in compliance with the provisions of VBA's Live Manual, M21-1, IV.ii.1.I.3.a-f (Aug. 17, 2017). These asbestos claim developmental procedures include the following: * The AOJ should send a VCAA developmental letter to the Veteran requesting specific asbestos exposure information, by selecting certain development paragraphs as provided in M21-1, IV.ii.1.I.3.c; * The AOJ should attempt to secure the Veteran's service personnel records (SPRs) from the appropriate custodian, to determine if there is any information pertinent to asbestos exposure. This request for SPRs should be completed by way of a request in the Personnel Information Exchange System (PIES) using Code O16 for paper claims, or Code O50 for claims processed in the Veterans Benefits Management System (VBMS), or Defense Personnel Records Image Retrieval System (DPRIS) - see M21-1, IV.ii.1.I.3.c; and * The AOJ should determine if asbestos exposure is established by reviewing the following: the M21-1 table listing the probability of asbestos exposure by military occupational specialty (MOS); SPRs; STRs; buddy statements; and any other evidence of record. See M21-1, IV.ii.1.I.3.c-e. 2. The AOJ should obtain VA treatment records from the San Diego VA healthcare system in California dated from February 2014 to the present, and associate them with the claims file. All attempts to secure these records, and any response received, must be documented in the claims file. If no VA treatment records are available, a response to that effect is required and should be documented in the file. 3. After completion of steps #1-2, the AOJ should schedule the Veteran for the appropriate VA examination to determine the etiology of the Veteran's claimed respiratory disorders. Access to the electronic claims file must be made available to the VA examiner for review. The examination should include any diagnostic testing or evaluation deemed necessary, including X-rays. The Veteran must be interviewed. The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (a) Does the Veteran have a respiratory cancer (cancer of the lung, bronchus, larynx, or trachea), which is on the list of presumptive service-connected diseases for herbicide exposure? (b) For the Veteran's non-presumptive currently diagnosed COPD, emphysema, asthma, fibrosis, soft tissue nodules, or other lung disorders in the record, is it at least as likely as not (i.e., 50 percent or more probable) that any of these conditions began during service or are otherwise causally related to the Veteran's presumed herbicide exposure in Vietnam during service (regardless of the fact that none of these conditions are listed as diseases presumed to be associated with herbicide exposure)? (c) Is it at least as likely as not (i.e., 50 percent or more probable) that any of the Veteran's current respiratory disorders are related to his military service from 1965 to 1971, to include in-service asbestos exposure? The VA examiner should consider any additional information secured during the course of this remand that is pertinent to the Veteran's allegation of in-service asbestos exposure. In making this determination, pre-service, in-service, and any post-service exposure to asbestos and other contaminants should be discussed. (d) In rendering the above opinions, the VA examiner should consider and address the following evidence: * As to lay contentions, on various occasions the Veteran has contended that his respiratory symptoms such as shortness of breath began during his military service from 1965 to 1971, and that he was actually seen by doctors for respiratory symptoms shortly after discharge from service in 1971. See e.g., June 2014 NOD; November 2014 VA Form 9. But in other instances in the record, he has stated that his difficulty breathing first began many years after discharge in 1991 (see September 1999 VA treatment records) or just before the year 2000 (see March 2018 hearing testimony at pages 7-10). * STRs reveal that in an April 1968 Report of Medical History for a food handler examination, the Veteran reported a history of shortness of breath and pain and pressure in his chest. His May 1968 STR reenlistment examination revealed normal lungs and chest. A January 1970 STR from Weed Army Hospital documented treatment for sore throat, headaches, and runny nose. The diagnosis was pharyngitis. * At an April 1971 STR report of medical history at separation, the Veteran denied asthma, shortness of breath, pain in his chest, or chronic cough. His June 1971 STR separation examination revealed normal lungs and chest. * Post-service, VA treatment records dated in 1999 revealed diagnoses of COPD, coronary artery disease, and reactive airway disease (RAD). He exhibits chest pain, dyspnea, shortness of breath, wheezing, and occasional coughing. He uses inhalers - Albuterol and Atrovent. In September 1999 VA treatment records, he reported that his shortness of breath and chest pain have existed since 1991. The Veteran also had alcohol use and tobacco use disorders. * Post-service, June 1999 X-ray of the lungs demonstrated faint crackles to bases bilaterally. There is a 1cm metallic density over the left lung, but no evidence of infiltrate or failure. No apparent parenchymal mass is seen at this point in time. * Post-service, pulmonary function tests (PFTs) performed in August 1999 indicated that lung volumes were normal, ruling out restrictive lung disease. * Post-service, a November 2006 VA chest X-ray showed normal heart size and mild bilateral pleural thickening. There is a 9mm metallic opacity within the left upper lung zone, possibly shrapnel. There is no evidence of acute cardiopulmonary pathology. * Post-service, a May 2008 VA chest X-ray reported mild pulmonary hyperexpansion. Mild increased density in the left lung base is seen, which may represent subsegmental atelectasis and or scarring. 8mm irregular metallic density in the left anterior chest wall is again noted, probable shrapnel. No evidence of pneumothorax or pulmonary edema. * Post-service, an October 2009 VA clinic note remarked upon the Veteran's history of smoking for over 50 years - 1-2 packs per day. Similarly, a November 2010 VA primary care outpatient initial evaluation note reported that the Veteran with a history of COPD continues smoking 1/2 pack a day but had cut down from 1 1/2 packs to 2 packs daily. * Post-service, April 2011 and August 2011 VA CT scans of the chest discussed round soft tissue nodules in the superior segment of the right lower lobe measuring 10mm and 3.5 mm. These may represent hamartomas or granulomata, however their appearance is not typical on this exam, and malignancy cannot be entirely excluded. Recommend repeat exam in 6 months to assess for interval growth. 2. Metallic fragment embedded in the left anterolateral chest wall deep to the pectoralis major muscle. This likely represents the left-sided lesion in question on request form. 3. Mild centrilobular emphysema with several adjacent to the right lateral border of the mediastinum. May 2011 PFTs of the lungs were also performed. * Post-service, per a May 2011 VA addendum note, the VA doctor indicated his findings and history largely confirm those documented in his note although the correct location of the lung nodule is the superior segment of the right lower lobe and not the right upper lobe. Notably, the Veteran has a 9mm well circumscribed nodule in the superior segment of the right lower lobe that was identified on a CT scan apparently ordered in follow-up to a chest x-ray study taken in El Centro that is not available. He did have a prior chest film at VAMC Loma Linda in May 2008 that was reviewed and the nodule was not clearly present then. He has significant COPD and continues to smoke. The lesion was worrisome for malignancy. * Post-service, May 2011 and August 2011 VA pulmonary consults mentioned "minimal asbestos exposure in the past from sawdust." There is a lung nodule in the RLL. Nodule seems to be calcifying on repeat CT and not increasing in size, not in favor of malignancy but more of a granulomatous process; another smaller nodule is also visible adjacent to it (3-4 mm). The Veteran was advised to quit smoking. * Post-service, February 2012 VA problem lists noted asthma, tobacco use disorder, alcohol dependence, heart problems, obstructive sleep apnea, COPD, and coin lesion (pulmonary). * Post-service, March 2012 VA chest X-rays showed mild prominence of peribronchial markings centrally. NO infiltrates are seen. Hilar areas unremarkable. A radiodense 8x9mm foreign body is on the left anterior chest wall. Impression of mild uncoiling of aorta. Peribronchial thickening, most likely chronic. A March 2012 VA echocardiographic report stated it was a "technically difficult study - lung artifact (smoker)." * Post-service, a July 2013 chest X-ray noted fibrosis and a recommendation to stop smoking. 4. After completion of steps #1-3, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completion of steps #1-4, the AOJ should consider all of the evidence of record and readjudicate the issue of service connection for a respiratory disorder, to include as due to exposure to asbestos and due to herbicide (Agent Orange) exposure. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs