Citation Nr: 21066311 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-30 935 DATE: October 29, 2021 REMANDED Service connection for asbestosis, to include any diagnosed respiratory or pulmonary disability, to include as due to exposure to asbestos, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1958 to June 1960. The Veteran testified before the undersigned Veterans Law Judge in a July 2017 Travel Board hearing. A transcript of that hearing has been associated with the file. As noted in the November 2019 remand, the Veteran's opt in form to the Appeals Modernization Act (AMA) was received by VA after the case had been recertified. Thus, the Board retains jurisdiction of the appeal as a Legacy appeal. The Board remanded this matter three times, in September 2017, November 2019, and September 2020. Disappointingly, the remand directives have not been substantially complied with and therefore another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). As described in the prior remands, the Board found the opinions of record dated prior to the September 2020 remand to be inadequate. As such, the Board will not discuss the details of those examinations at this time. The September 2020 Board directives required the examiner to identify all respiratory or pulmonary disabilities found at any time during the appeal period (from February 2009), to include asbestosis. Although an examination was performed in December 2020 and that VA examiner diagnosed the Veteran with bibasilar pulmonary scarring, the examiner did not provide an adequate opinion on its etiology. The rationale was conclusory and bare bones. Additionally, the examiner further compounded the issue as to whether there is a current diagnosis of asbestosis. The examiner concluded "there is no diagnosis of asbestosis at this time." Although the directives did not explicitly require the examiner to discuss the prior diagnoses if a pulmonary disability was found, the statement "at this time," further adds to the confusion as to whether there is a competent diagnosis of asbestosis at any time during the appeal period (i.e., as of February 2009). Also, the directives required the examiner to specifically provide comment on various medical treatment records and discuss whether these have any correlation with any currently diagnosed respiratory or pulmonary disability, to include asbestosis. Although the examiner indicated review of the entire file, stating "the entire file of 1950 pages was reviewed," the December 2020 VA examiner did not provide the requested comment. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for an examination with a pulmonologist or other specialist, preferably with an examiner who has not been involved in this case previously, for an opinion regarding the etiology of any pulmonary or respiratory diagnosed disabilities, to include asbestosis. The claims file and a copy of this remand must be made available to the examiner for review. 2. The examiner should review the claims file (including this remand) and note such review was conducted. The examiner should identify all respiratory or pulmonary disabilities, to include asbestosis, found at any time during the appeal period (from February 2009). The examiner should be directed to elicit a complete history from the Veteran, and to account for his reported history in the opinion. The examiner is advised that the file is extensive, containing a lot of medical documentation that note asbestosis as an active problem, a current diagnosis, or a past medical disability. Following review of the claims file and examination of the Veteran, the examiner should provide opinions that respond to the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's asbestosis or other diagnosed respiratory or pulmonary disability manifested during active service; manifested within one year of his June 1960 separation; or is otherwise related to an event, injury, or disease incurred during active service, to include his possible exposure to asbestos in service. 1. The examiner is asked to specifically comment on the July 2002 private treatment record, the November 2002 private treatment record, and the numerous VA treatment records dated between May 2010 and June 2020 and discuss whether these have any correlation with any currently diagnosed respiratory or pulmonary disability, to include asbestosis. (b.) If asbestosis is not found on examination, the examiner is requested to comment and account for in his/her opinion the July 2002 private x-ray treatment record, noting interstitial changes consistent with pulmonary asbestosis. 1. The examiner should explicitly state whether this constitutes a competent accurate diagnosis, whether it should be considered resolved, or whether it is a misdiagnosis. This record is located at: VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date October 2, 2019, pg. 2 of 11. (c.) If asbestosis is not found on examination, the examiner is requested to comment and account for in his/her opinion the November 2002 occupational lung disease evaluation that illustrates a diagnosis of mild pulmonary asbestosis and describes possible asbestos exposure post service. 1. The examiner should explicitly state whether this diagnosis is accurate, whether it should be considered resolved, or whether it is a misdiagnosis. This record is located at: VBMS, document labeled Medical Treatment Record-Non-Government Facility, receipt date October 2, 2019, pgs. 4-5 of 11. (d.) If asbestosis is not found on examination, the examiner is requested to comment and account for in his/her opinion the VA treatment records, specifically the December 2016 VA treatment note wherein the Veteran presented for evaluation and management of chronic problems and the examiner assessed the Veteran with asbestosis. 1. The examiner should explicitly state whether this diagnosis is accurate, whether it should be considered resolved, or whether it is a misdiagnosis. This record is located at: VBMS, document labeled CAPRI, receipt date April 11, 2019, pgs. 72-76 of 252. The examiner is asked to provide a complete a rationale for all opinions offered. 3. The AOJ should ensure that the opinions conform with the remand directives. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.