Citation Nr: 18123977
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 10-08 689
DATE:	August 7, 2018
REMANDED
Entitlement to service connection for a respiratory disorder, to include as due to inhalation of lead and asbestos particles, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from June 1962 to July 1965. He also had additional service with the U.S. Navy Reserve.
In his March 2010 substantive appeal, the Veteran requested a Travel Board hearing, which was scheduled for May 2012.  However, the Regional Office (RO) clearly documented that he asked to cancel the May 2012 Board hearing.  Thus, the Board finds that he withdrew his hearing request. 
This case has a long procedural history and has been before the Board previously.  Most recently, in a June 2016 decision, the Board denied the claim. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2017, the Court issued a Memorandum Decision vacating the Board’s June 2016 decision and remanding the case back to the Board for reconsideration consistent with the Court’s Decision. 
Service connection claims for bilateral hearing loss and tinnitus were previously on appeal. In a May 2012 rating decision, the RO granted those claims.  As that decision was a full grant of the benefits sought for those issues, they are no longer on appeal.
The appeal is remanded for the following development.
•	VA medical opinion: The Court’s Memorandum Decision found that the June 2016 Board decision failed to provide adequate reasons and bases for relying on inadequate findings in the April 2015 VA medical opinion.  For example, the Court found that the 2015 VA medical opinion failed to discuss favorable evidence, including a February 2009 VA imaging report showing pleural effusions.  In addition, the Court found that the April 2015 VA examiner’s finding that x-rays taken then did not show “definite pleural plaquing” did not clearly indicate what level of proof the examiner required to diagnose this condition.  Moreover, the Court stated that the Board failed to consider a submitted medical article’s findings regarding the efficacy of x-rays in detecting medical conditions related to asbestos exposure.  The Court also concluded that the Board inadequately addressed contradictory evidence of record regarding whether the Veteran has pleural plaquing and how to diagnose that condition.  Furthermore, the Court scrutinized the 2015 VA examiner’s finding that asbestos exposure does not cause the type of restrictive respiratory disorder with which the Veteran has been diagnosed.  Specifically, the Court reasoned that this negative finding was inconsistent with VA policy expressed in VA’s M21-1 Adjudications and Procedures Manual (M21-1) and 38 C.F.R. § 4.97, Diagnostic Code 6845 (classifying chronic pleural effusions as form of restrictive lung disease). Before the Board can address the Court’s concerns with the 2015 VA examiner’s medical findings and other issues summarized above, another VA medical opinion is needed.  

•	Private treatment records: As the appeal must be remanded for the reason discussed above, the RO should afford the Veteran another opportunity to submit identified private treatment records from Rapid Sound, Inc. from the mid-2000s.  In May 2015, the RO requested private treatment records from this provider, which promptly submitted a negative response indicating that the records had been destroyed and that the provider last had seen the Veteran in 2005.  The RO notified the Veteran of its request for treatment records from that provider; however, the RO failed to notify him about that provider’s negative response, and it did not give him a chance to submit the records himself.
The matter is REMANDED for the following action:
1. Send the Veteran a letter (cc’ing his representative) notifying him of Rapid Sound, Inc.’s May 2015 negative response to the RO’s May 2015 request for private treatment records.  The letter also should give him a reasonable opportunity to submit any relevant private treatment records that he may have from that provider.
2. After obtaining the necessary releases from the Veteran, request all outstanding medical records from the following identified private / non-VA provider:
(a.) Dr. Milani (non-VA primary care provider referenced in October 2006 VA new patient note discussing prior treatment and monitoring of right lung “spot” / nodule);
(b.) all other private / non-VA providers that the Veteran may identify in the appropriate release(s).
Document any negative responses.  If any private treatment records are unavailable, then notify the Veteran and his representative and give them the opportunity to submit them.  If any obtained private treatment records reference additional, relevant care, then attempt to obtain records of that care as well.
3.  DO NOT PROCEED WITH THE FOLLOWING INSTRUCTIONS UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE.
4. Schedule a VA examination with a physician, given the complexity of the issues, regarding the nature and etiology of the Veteran’s respiratory disorder. The examiner must review the complete claims file, including this remand, and note such review in the examination report. 
If the examiner finds that he or she cannot answer the following questions without additional testing, the necessary tests should be scheduled.
Then, the examiner must address the following with full supporting rationales: 
(a.) List all current respiratory diagnoses from 2007 to the present.  Please expressly address whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran has had pleural effusions or pleural plaques from 2007 to the present.  See January 2007 VA chest CT scan report (noting a few small subpleural nodules or pleural plaques seen anteriorly and laterally within right upper to mid-chest); see also February 2009 VA chest imaging reports (imaging report from one day after heart operation showed subsegmental atelectasis of left lung basis with likely small pleural effusions; another imaging report from two days after heart operation showed small pleural effusions with linear atelectasis in left lower lung); but see September 2007 VA chest CT scan report (finding no pleural effusions); January 2009 VA chest imaging report (stating no pleural effusion identified); April 2015 VA examination report (diagnosing restrictive respiratory dysfunction, and finding “no definite pleural plaquing identified” based on April 2015 chest x-ray).
(b.) Is it at least as likely as not (50 percent probability or greater) that any current respiratory disability is related to an in-service injury, event, or disease, including the Veteran’s conceded exposure to asbestos and lead paint during his active duty Navy service?  Please expressly consider: 
-	VA imaging reports summarized above (showing pleural plaques and pleural effusions);
-	M21-1, VA Adjudication Manual, IV.ii.2.C.2.b. (General Effects of Asbestos Exposure) (providing that inhalation of asbestos fibers can produce pleural effusions or pleural plaques, among other conditions);
-	2015 VA examiner’s diagnosis of restrictive respiratory dysfunction; and fact that VA regulations governing disability ratings for respiratory conditions classify chronic pleural effusions as “restrictive lung disease.”  See 38 C.F.R. § 4.97, Diagnostic Code 6845 (emphasis added).
-	National Cancer Institute (NCI) article received in March 2016, and July 2018 brief (both citing medical evidence showing that symptoms of asbestos-related conditions such as shortness of breath and fatigue may appear ten to forty years or more after exposure).
For all findings requested above, the examiner must use language clearly applying the correct standard of proof: “as likely as not” (i.e., 50 percent probability or greater). The VA examiner should avoid speculative language (e.g. “may relate to”) and other unclear language (e.g., “no definite” evidence).  
If any finding requested above is not possible without resort to mere speculation, then please explain why.  
 
MICHELLE L. KANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Janofsky, Associate Counsel

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