Citation Nr: 21071544 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-26 670 DATE: November 30, 2021 REMANDED Entitlement to service connection for a lung condition (claimed as asbestosis), to include as due to in-service asbestos exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1964 to August 1968. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran requested to testify before a member of the Board at a Local VA Office hearing. However, the Veteran, through his attorney, cancelled this request in a November 2015 correspondence. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(e). In February 2019, the Veteran's claim was remanded for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with the remand; therefore, the appeal must once again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for a lung condition (claimed as asbestosis), to include as due to in-service asbestos exposure is remanded. The Veteran seeks entitlement to service connection for a lung condition, which he asserts were incurred in or caused by military service, to specifically include as due to exposure to asbestos while stationed onboard, and in the shipyard of, the U.S.S. Austin. As an initial matter, the Board notes that the Veteran filed a service connection claim for asbestosis. However, upon review of the Veteran's medical records, the Board notes that, although his treating private physician has indicated a belief that the Veteran may have asbestosis, the Veteran has never been formally diagnosed with asbestosis. However, he has been diagnosed with asthma. As such, the Board has recharacterized the Veteran's claim to include any lung condition. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran was initially provided a VA examination in June 2013. However, the VA examiner did not provide an etiology opinion. See June 2013 VA Examination. Pursuant to the Board's remand, the RO obtained a VA examination in December 2019. After reviewing the Veteran's claims file, the examiner opined that there is no evidence that the Veteran's diagnosed asthma had its onset in service or is due to any in-service exposure. Overall, the examiner concluded that the Veteran does not have a diagnosis of a lung condition that is at least as likely as not incurred in or caused by his active service. The Board finds this opinion to be inadequate. While the examiner cited to various pertinent evidence in the claims file, she did not address the Veteran's lay statements of in-service asbestos exposure. Moreover, the examiner did not address medical literature submitted by the Veteran in January 2019 entitled Navy Veterans with Mesothelioma. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Based on the above, the Board finds that the record does not contain a medical opinion that is sufficient to fairly decide the Veteran's claim. Therefore, the claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on behalf of the Veteran. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21Vet. App.303, 311-12 (2007); Douglas v. Shinseki, 23Vet. App.19, 26 (2009). Finally, as noted above, the Veteran asserts that he was exposed to asbestos during service while stationed onboard the U.S.S. Austin. In March 2013, the RO completed a VA 21-3101, Request for Information Form, which requested records of in-service asbestos exposure or jobs the Veteran performed. This request resulted in Military Personnel Records which noted the Veteran's advancement in April 1967 to the position of Ship Serviceman (Laundry). However, the response did not reveal any asbestos exposure and the RO did not make any formal findings or further attempts to verify the Veteran's claimed exposure. Hence, further development is required on remand. Accordingly, the matter is REMANDED for the following actions: 1. Following the procedures outlined in the Adjudication Procedures Manual, conduct all necessary development and make a formal finding regarding the likelihood that the Veteran was exposed to asbestos during service. See M21-1, Part IV, Subpart ii, Chapter 1, Section I, Topic 3(c). In rendering a determination, the RO must address the Veteran's stated duties as a plank owner during the building of the U.S.S. Austin, including standing regular fire watches for the welders and insulation installers, putting down and removing floor tile, and working in laundry, which he states were all areas with asbestos. The Veteran also states that all of this was done without any personal protective equipment. See April 2012 Statement in Support of Claim, October 2013 Notice of Disagreement, July 2015 VA Form 9. 2. Then, obtain a VA medical opinion from an appropriate VA medical professional that addresses all lung conditions diagnosed during the pendency of the appeal (since March 2012), to include asthma. A full VA examination should not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. The examiner should set forth all currently-diagnosed lung conditions, including those diagnosed during the pendency of the appeal, even if currently resolved. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that any currently-diagnosed lung condition, to include asthma, was incurred in or caused by an in-service injury, illness, or event, to include possible exposure to asbestos? In providing the requested opinion, the examiner should specifically consider and address the following evidence: Veteran's stated belief that his duties as a plank owner during the building of the U.S.S. Austin, including standing regular fire watches for the welders and insulation installers, putting down and removing floor tile and working in laundry, exposed him to asbestos. The Veteran also states that all of this was done without any personal protective equipment. See April 2012 Statement in Support of Claim, October 2013 Notice of Disagreement, July 2015 VA Form 9. Private treatment note by the Veteran's treating pulmonologist Dr. A.B., that the Veteran has a "history of extensive exposure to asbestos dust both in the military and in private industry." See April 10, 2013 Private Treatment Record. The Veteran's reports of symptoms of shortness of breath, chronic dry cough, occasional sharp momentary pain across his chest. See June 2013 VA Examination. Medical literature cited by the Veteran: o Navy Veteran with Mesothelioma, https://www.asbestos.com/navy/, See January 2019 IHP. o Asbestosis overview by the Mayo Clinic, noting that effects of long-term exposure to asbestos typically don't show up until 10 to 40 years after initial exposure. Symptoms can vary in severity. Asbestosis signs and symptoms may include: shortness of breath, a persistent, dry cough, [etc.]. https://www.mayoclinic.org/diseases-conditions/asbestosis/symptoms-causes/syc-20354637, See November 2021 IHP. o Asbestos exposure may cause airway obstruction by inducing bronchial asthma, even if confirmed asbestosis is absent.", Possible Relationship between Asbestos Exposure and Bronchial Asthma: A Need for Clarification, https://doi.org/10.1164/ajrccm.183.11.1571a, See November 2021 IHP. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.