Citation Nr: 20052919
Decision Date: 08/10/20	Archive Date: 08/10/20

DOCKET NO. 05-34 953
DATE: August 10, 2020

REMANDED

Entitlement to service connection for a pulmonary disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1958 to February 1960.

The Veteran testified before the undersigned Veterans Law Judge a November 2016 Travel Board hearing.  

This matter has an extensive procedural history.  Most recently, it was denied by the Board in a February 2019 decision.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims, resulting in a January 2020 Joint Motion for Remand (JMR).  The matter is now back before the Board.

1. Entitlement to service connection for a pulmonary disorder is remanded.

Pursuant to the January 2020 JMR, remand is necessary to obtain a new opinion.  The JMR found that the July 2018 VA medical opinion upon which the February 2019 decision relied was inadequate.  Specifically, the JMR found that the July 2018 VA opinion (1) “failed to explain how the relative time or duration of asbestos exposure make it more likely that the pleural plaque condition was not related to conceded asbestos exposure in service” and (2) did not fully consider “whether in-service exposure to asbestos caused Appellant’s diagnosed pulmonary disability.”  

The matters are REMANDED for the following action:

Return the claims file to an examiner of appropriate expertise to issue an opinion regarding in-service asbestos exposure and the etiology of the diagnosed pulmonary disorders.  It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion is sufficient.  In the event an examination is scheduled and the Veteran is unable to attend, a medical opinion must be obtained.

Based on a review of the record, the examiner should:

Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s pulmonary disorders are related to active service, specifically in-service asbestos exposure.

Pursuant to the Court’s January 2020 JMR, the examiner must (1) fully explain how the relative time or duration of asbestos exposure pre-, in-, and post-service indicate the likelihood of whether the diagnosed pulmonary disorders are related to service and (2) provide an opinion that fully considers whether the diagnosed disorders are related to in-service asbestos exposure, “notwithstanding any asbestos exposure prior to or after service.”

The Board has determined that the Veteran was exposed to asbestos in service and the examiner should not use as a basis for any opinion that there was no “reported” in-service exposure.  

A complete rationale for any opinion expressed should be provided in a report.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	W. R. Stephens, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.