Citation Nr: 0534515 Decision Date: 12/22/05 Archive Date: 01/10/06 DOCKET NO. 04-03 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) and anxiety. 2. Entitlement to service connection for chronic respiratory disability to include chronic obstructive pulmonary disease (COPD), emphysema, bronchitis, pleural scarring and calcified nodules from possible remote tuberculosis, including alleged to be secondary to asbestos exposure in service. 3. Entitlement to service connection for residuals of exposure to lead poisoning. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from February 1962 to March 1966. This appeal to the Board of Veterans Appeals (the Board) is from actions taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, WV. Service connection is in effect for residuals, fracture of the left ankle, evaluated as 10 percent disabling. The veteran provided testimony before a Veterans Law Judge at the RO in July 2005; a transcript is of record. At the time of the hearing, a written waiver of initial RO consideration of additional evidence was introduced, and evidence has since been entered into the claims file. Issues ## 2 and 3 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Adequate development of the evidence has taken place so as to provide ample basis for resolution of pending appellate issue #1 at this time. 2. The aggregate evidence of record including service records, service comrade's statements, collateral historic documentation and credible testimony from the veteran, sustains that the veteran was subjected to stress while on active duty although he was not directly involved in combat. 3. The aggregate evidence including medical expert opinions sustain that the veteran's current psychiatric problems, predominantly diagnosed as PTSD and anxiety, are a result of in-service stress. CONCLUSION OF LAW An acquired psychiatric disorder to include PTSD and anxiety is reasonably the result of service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.303. 3.304(f) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Considerations Certain revisions have been effectuated with regard to an obligation placed on VA for providing assistance in development of evidence, and in other areas. Some development has been undertaken herein. The veteran has indicated that he is aware of what is required in the way of evidence and that nothing further is known to exist which would benefit his claim. The Board is satisfied that adequate development has taken place and there is a sound evidentiary basis for resolution of this issue at present without detriment to the due process rights of the veteran. Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a chronic disorder, such as psychosis, is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to disease so diagnosed when the evidence warrants direct service connection. See 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet. App. 361, 367 (1998); Cohen v Brown, 10 Vet. App. 128, 138 (1997). If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. And if the evidence otherwise establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.303(a), 3.304; see Hayes v. Brown, 5 Vet. App. 60, 66 (1993). Where the claimed stressor is not related to combat, "credible supporting evidence" is required and "the appellant's testimony, by itself, cannot as a matter of law, establish the occurrence of a noncombat stressor." See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The requisite additional evidence may be obtained from sources other than the veteran's service records. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996), aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table). In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court clarified the analysis to be followed in adjudicating a claim for service connection for PTSD. The Court pointed out that the VA has adopted the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in amending 38 C.F.R. §§ 4.125 and 4.126. See 61 Fed. Reg. 52695-52702 (1996). Therefore, the Court took judicial notice of the effect of the shift in diagnostic criteria. The major effect is that the criteria have changed from an objective ("would evoke ... in almost anyone") standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard. The criteria require exposure to a traumatic event and response involving intense fear, helplessness, or horror. The question of whether a claimed stressor was severe enough to cause PTSD in a particular individual is now a clinical determination for the examining mental health professional. See Cohen, supra. Nothing in Cohen, however, negates the need for a noncombat veteran to produce credible corroborating and supporting evidence of any claimed stressor used in supporting a diagnosis of post-traumatic stress disorder. Id. at 20; Moreau v. Brown, 9 Vet. App. 389, 395 (1996). The corroboration may be by service records or other satisfactory evidence. See Doran v. Brown, 6 Vet. App. 283, 289 (1994). [i.e., in Doran, a veteran's service records had been lost due to fire; however, his account of in-service stressors was corroborated by statements from fellow servicemen]. Whether a veteran has submitted sufficient corroborative evidence of the claimed in-service stressors is a factual determination. Corroboration of every detail of a claimed stressor is not required; independent evidence that the incident occurred is sufficient. See Pentecost v. Principi, 16 Vet. App. 124 (2002); see also Suozzi v. Brown, 10 Vet. App. 307, 310-311 (1997). In various judicial qualifications and discussions of that basic premise, the Court has rejected the notion that whether a veteran was actually with his unit at the time of a specific attack is required to verify that attack as a PTSD stressor; or that there be other corroboration of specific activities or even every detail of the personal participation in the identifying process. See, i.e., Suozzi, supra. Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993); see also Sanden v. Derwinski, 2 Vet. App. 97, 100 (1992); When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background Service medical records are rather limited. However, during the veteran's active service from February 1962 to March 1966, official service documentation confirms that he served aboard at least three ships in capacities to include boatswains mate, a job that included painting and repairing of the ships. One of the ships, the USS PHOEBE (MSC-199) was a wooden-hulled coastal minesweeper, home ported in Sasebo, Japan. The other ships were the USS IMPERVIOUS (MSO-449) (where he also qualified for duties as a mess man); and the USS ILLUSIVE CONLUSA (MSO-448). While assigned to but on shore leave from the IMPERVIOUS, he was hospitalized [after being briefly admitted to a private facility in Long Beach, CA], on the USS HAVEN (AH-12). He had been a passenger in an automobile when it accidentally left the highway in September 1965; it was during that accident that he experienced a fractured left lateral malleolus. Service records show no complaints of any psychiatric problems. He was treated on occasion for scrapes and bruises that could have come from fights or other trauma but this was not specified in the evidence of record. Disciplinary records included in a summary 201 file are of record. He was subjected to several summary and at least one special courts-martial starting in September 1962, and commanding officer's nonjudicical punishments for a variety of offenses while on all three ships and ashore [there are cited UCMJ Violations of Articles 134, 91, 92, 90, 89, including charges of being drunk and disorderly onboard ship, being disrespectful in language towards a superior petty officer, violating a lawful general regulation and a lawful command (March 1963); disrespectful in language toward a superior petty officer and/or willfully disobeying a lawful command (April 1963, July 1965); and miscellaneous unauthorized absences (August 1964, September 1964, January to February 1965, and September 1965)]. The veteran had provided extensive written statements as to his experiences before, during and since service. He has explained that he had not had an easy life before service or since. And while the Board appreciates his candor and completeness, as will be discussed more thoroughly below, these incidents are not pivotal to the pending appellate issue of whether in-service stress caused his current psychiatric problems. However, with regard to service, the veteran has described being in an auto accident (collaterally confirmed by service records) . He indicated that it was common practice then to hitch rides to and from base without even knowing the other parties involved, whether driving or riding. This particular vehicle was eventually driven the wrong way on an exit ramp into traffic on a freeway below. The driver, whom he did not know, ran away; the veteran had a broken ankle from being pinned under the heater vent. His life had been saved when he had been pulled from the wreckage by another sailor whose name he did not even know. He was told that the car itself went over the edge of the precipice into incoming traffic some 50' below. This statement of how he recalls the incident is not inconsistent with the clinical and other data in the file, including from service. The veteran has related another incident while he was on the PHOEBE. In summary, the ship was tied alongside several others at Sasebo, the PHOEBE being the third ship out from the pier, close to midnight. He was not sure of the exact date, but he knew it was near to the Kennedy Assassination and everyone was depressed about that. He was going to get a cup of coffee before turning in at the end of his watch and he heard a huge commotion from the pier, three ships away. He notes that he was then just an inexperienced young kid of 18 or so. He saw two shore patrol sailors dragging a third sailor whom he recognized as a fellow sailor, gunnersmate and friend from his sister ship. He face was beaten and he was gushing blood. The veteran called authorities from his own ship, who came as soon as possible, but in the meantime, he held his friend, [redacted], until he gave a shudder and died. He later discovered that the fight had been over a bar bill and overpriced drinks about which [redacted] had objected and had gotten his throat slashed. The veteran reported that at that point, he and the other shipmate and friend who had answered his distress call, went on a "bender", which he describes as a "3 Day Dungaree Liberty", over [redacted] death, shooting up the place and generally acting out. He said that they were never given significant punishment for the incident and it was hushed up. Shortly thereafter, while aboard the wooden hulled PHOEBE, they departed Subic Bay for sea and mine fields near Vietnam. Since nothing metallic could be carried on board due to the instant flammability of the wooden ship, the anticipated life expectancy in any minefield was characterized as about "3 minutes" since they could not fire back at anything lobbed towards them. He described watching all sorts of incidents while off-shore. On another occasion, the small unstable boat with limited crew and capacities, was hit by a wave broadside and the ship nearly did not recover and everyone swallowed a lot of salt water. When they finally returned from the Vietnam area it was to the country's internal conflicts and the attitude of everyone against or in favor of war, antagonism towards service members, the Kennedy Assassination and racial rioting. In the meantime, while waiting to go home, a friend had introduced him to Benzedrine to stay awake, and between that and beer, he was "wired" for days. He assessed his own situation as being a skinny redheaded kid who was not a very good sailor and more of a "Beatle-Bailey" and was always getting into some kind of trouble. He traded that living in service as a member of "McHale's Navy" for Hell's Angels after service, which did not last long. Official reports of the ships involved confirm the vessel's presence in the minefields, out of Sasebo and other alleged locations when the veteran was onboard. The veteran has undertaken extensive communications by internet with former crew members; much of that interchange is in the file. Also of record are statements from at least two service comrades confirming the incident when the friend, "[redacted]", was killed by a sailor from another ship over a bar bill. One comrade indicated that the sailor who died had been a gunners mate or boatswain mate and was on one of the MSC's ships in the formation. He recalled that the guy who killed him had been in trouble before and got prison time. The veteran had referenced another incident when he and another buddy were fooling around in the barracks and were subjected to an attack by a group of others for reasons that seemed to be racially motivated. He said that he had never been subjected to that sort of thing before, and it scared him and those he was with. He said that after that they all feared the barracks and what might happen there, so they would all catch naps at other's houses rather than go back to sleep in the barracks. He has also recalled that while he was not physicially located in-country in Vietnam, the ship was moored off the coast and they could see the snipers on shore and caught rounds shot in their direction. Because the ship was wooden and subject to burning, any firing of weapons in their area was made even more precipitous and frightening; that some of the officers were not very experienced, and that there were few crew members so they had to work together which was often difficult. This has generally been confirmed by other crew mates who have recently communicated with the veteran. On VA mental health evaluation in July 2002, the veteran complained of feeling depressed and anxious. This had started at about the same time as he started having breathing problems. He had become irritable with others including his fiancé; had anergia, anhedonia, felt worthless, hopeless and helpless and had poor sleep with frequent nightmares, poor appetite, social isolation and decreased activities. He was drinking 2-3 12 ounce cans of beer daily but had not done drugs. Diagnosis was depression; a Global Assessment of Functioning (GAF) score was assigned of 59. VA ongoing clinical assessments are in the file. In October 2003, he was described as having worse sleep problems. A statement is of record from VA care-givers, dated in November 2003, to the effect that he had first been seen in July 2003 with PTSD symptoms of depression, isolation and fatigue. He had also been having sleep disturbances as a result of nightmares. He was experiencing extreme major depression symptoms which included a loss of interest in activities and a poor appetite. The care-givers specifically opined that his stressors stemmed from his service while in the Navy including onboard the PHOEBE. Since service, he had drunk alcohol excessively trying to forget, and continued to struggle with an alcohol problem. He had been married 4 times but had not opened up to any of his wives about his military experiences. He had driven a truck since service, but had not stayed in any place for long but rather had drifted from place to place without much emotional or other connection to others. The care-givers statement further noted that: (The veteran's) history and symptoms are consistent with PTSD. He has sought treatment from the Vet Center to work with a readjustment counselor. Our work with him during the last 4 1/2 months has clearly established PTSD that has become worse in recent months. Our goal is to increase coping skills, and improve quality of life. (emphasis added) A list of symptoms was given to include depression, feelings of helplessness, apathy, dejection and withdrawal; anger; intrusive thoughts; psychic or emotional numbing; sleep disturbance; inability to concentrate; isolation; emotional constriction and unresponsiveness; loss of interest in activities; and fatigue. On VA examination in February 2004, the veteran's entire file was reviewed. He reiterated a number of the recollections from service and included some of those incidents cited above as stressors. He said that he had had dreams for awhile of being a sniper in Vietnam but this was more of a dream or nightmare rather than a reexperiencing because he had not actually ever been a sniper; these had abated somewhat. He was easily startled by loud noises and had multiple problems with sleeping for any length of quality time. He was uncomfortable in crowds, and with regard to his in- service stress, his worst recollection was of his friend dying in his arms, an incident that he recalled with intense fear and helplessness, meeting the PTSD criteria. It was noted that he had not been reexperiencing any specific incidents, however, which were not within a PTSD criteria. He met other PTSD criteria such as startle response, insomnia, etc. The examiner felt that he met much of the criteria for a diagnosis of PTSD but did not meet all the criteria for such a diagnosis. Other diagnoses included mood disorder, NOS, with mixed anxiety and depressive features. Axis IV was exposure to trauma. GAF was 65. The veteran provided extensive testimony at the hearing held in July 2005. A follow-up report was received, dated in August 2005, from the veteran's readjustment counseling therapist. She stated that he had been a client at the VA facility since July 2003. She described his symptoms in great detail and indicated that there had been some noted improvement in about March 2004 when he indicated that he and his girlfriend had purchased a home with several acres. He had openly discussed his traumatizations in service, particularly those involving the friend who had died after the bar fight, during a fierce typhoon, and being shot at by snipers off Vietnam. The examiner opined that he met the criteria for a PTSD diagnosis with persistent symptoms of increased arousal, irritability and outbursts of anger. He also had generalized anxiety disorder with some relatively unfocused symptoms associated therewith. (emphasis added) Analysis The clinical records show that VA psychiatrists now diagnose the veteran as having an acquired psychiatric disability, primarily anxiety disorder or PTSD, most probably the latter. The stated cause(s) for both the anxiety and PTSD as cited by VA experts has been the veteran's stressors and experiences in service. With regard to the PTSD diagnosis, it is noted that he may meet many but not all of the criteria for a diagnosis of PTSD. However, the Board would note that legal requirements do not mandate that each and every potential indicia of a disorder must be met, but merely that there be adequate support for the diagnosis as rendered by medical experts, as has been the case herein. When any disorder has a multiplicity of symptoms, it is not unusual for there to be multiple concurrent or even alternative diagnoses in a given case, i.e., anxiety or depression, some or none of which may or may not also be attributable to service. In this case, there is sound medical opinion that they are all part and parcel of an acquired neurosis of service origin. In reviewing the overall evidence of record, the Board finds that the veteran's written and oral communications, and evidentiary data in support thereof, while often somewhat hyperbolic and verbose, have been, in pertinent part, entirely consistent and are credible. It should be noted that, unfortunately, the veteran has had a difficult time throughout life. It is not unexpected that tough times before entering service could perhaps predispose any individual to give certain responses therein. However, for purposes of this appeal, the Board may only address and is thus only interested in the impact of his in-service experiences on his current psychiatric health. In that regard, while service records are admittedly limited, what records there are appear consistent with his recollections. And while the records in the file reasonably support the veteran's contentions, he has also submitted statements from service members who were present for many of the alleged stressor incidents. Service documentation in and out of his own file confirms that the specific military units, to which he was then assigned, did indeed undergo such trauma. Since the stressors identified by him on numerous occasions were under alleged conditions that are entirely conceivable, and since he must be presumed to be credible under these circumstances, he was in all probability subject to combat compatible circumstances which offered considerable stress, as well as personal trauma which may have had a unique impact on his own mental health since that time. The Board finds that whatever the appropriate diagnosis(es) for his current psychiatric disorder, (i.e., whether anxiety disorder or PTSD), the nature of the psychiatric disability and his service situation certainly raise a doubt which must be resolved in his favor. Accordingly, the veteran's psychiatric disorder, to include PTSD and anxiety, is reasonably the result of service, and service connection is in order. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and anxiety, is granted. REMAND With regard to issues ## 2 and 3, the veteran has introduced evidence into the file relating to his exposure to both lead paint and asbestos onboard ship and treatise materials relating to the potential residuals from both exposures. During the veteran's active service from February 1962 to March 1966, official service documentation confirms that he served aboard at least three ships in capacities to include a boatswain mate, a job that included painting and repairing of the ships. One of the ships, the USS PHOEBE (MSC-199) was a wooden-hulled coastal minesweeper, home ported in Sasebo, Japan. The other ships were the USS IMPERVIOUS (MSO-449) (where he also qualified for duties as a mess man); and the USS ILLUSIVE CONLUSA (MSO-448). While assigned to but on shore leave from the IMPERVIOUS, he was hospitalized [after being briefly admitted to a private facility in Long Beach, CA], on the USS HAVEN (AH-12). Fellow shipmates have credibly confirmed his allegations in that regard, and their own contributions have provided a much more illustrative base for understanding the ongoing and multi-leveled experiences he had, particularly lead based paint as well as asbestos in a variety of forms. He has provided photos and other treatise and media information relating to his exposure on shipboard to both lead paint and asbestos. One statement from PKC, dated in 2003, who served with him, was to the effect that the veteran's job as a deck seaman was daily cleaning, painting, removing paint, polishing brass and a host of similar job, which he did conscientiously. Mr. C had personally observed the veteran's removing lead based paint with an electric wire brush on a number of occasions as well as using triclorethane to clean grease and dirt from deck equipment. He had also observed him removing asbestos insulation from pipes and reinstalling new asbestos insulation on same. He further stated that the only protective safety precautions used at the time included rubber gloves when using portable electrical equipment. Another statement was received from RJM, who spent 20 years on wooden hulled minesweepers and similar boats exposed to hazardous substances. He was with the veteran on the PHOEBE and confirmed that the veteran had spent 2 years during that time in jobs involving daily sweeping and mopping the deck, chipping lead based paint from metal topside machinery, anchor windless, anchor chains and removing asbestosis floor tile by hand scraping. Mr. M reported that the veteran had also been on his firefighting team during their service on the PHOEBE, during which time they had multiple serious engine main propulsion exhaust stack fires which required them removing smoking asbestos lagging and burning pads. Another service comrade, ELC, confirmed what others had said, namely that the PHOEBE had a 30 man crew with 5 officers so all pitched in; he had been the only storekeeper and manned the ship's supply office. He recalled that the veteran had been involved in paint stripping and other work without protective gear except for goggles. All of the paint used was lead based. Based on the aggregate evidence of record, the Board is willing to stipulate that the veteran had extensive, service- long exposure to both lead based paint and asbestos. However, it remains unclear from the evidence in the file, including his testimony which is considered to be basically credible in nature, as to what specific current disability he is specifically claiming is the result of lead poisoning. The RO, in forwarding the claim to the Board, has identified the claimed disability as a result of exposure to lead poisoning, as involving dementia; this may be one classic residual of lead poisoning but may not be the only possible residual. In addition to breathing the fumes from the exposures, and getting the materials on him in a variety of fashions, service medical records confirm and it is reported again on a VA examination in March 2003, that he had gotten lead paint chips in his eye in service and had been diagnosed with Adie's Syndrome. He later referred to residuals in the form of visual or eye impairment, but recently denied that he had claimed benefits for Adie's Syndrome. However, he also claimed a number of other disabilities to include sensory changes in his hands and fingers, some of which might be conceivably due to exposure to lead poisoning. And in that regard, now that service connection has been granted for an acquired psychiatric disorder, if his alleged disability from exposure to lead paint is related to mental impairment, this must be addressed in the context of an associative relationship to the already service-connected psychiatric impairment. Finally, the veteran has a myriad of current respiratory problems. Current diagnoses include bullous emphysematous changes, chronic respiratory disability to include chronic obstructive pulmonary disease (COPD), emphysema, bronchitis, pleural scarring and calcified nodules from possible remote tuberculosis. In addition to all of the usual regulations pertinent to the grant of service connection, with asbestos-related claims, VA must determine whether military records demonstrate asbestos exposure during service, and, if so, determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1, Part VI, 7.21(d)(1). The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, and mesotheliomas of pleura and peritoneum, lung cancer and cancers of the gastrointestinal tract. M21- 1, Part VI, 7.21(a)(1). The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, 7.21(c). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. M21-1, Part VI, 7.21(b)(1). The relevant factors discussed in the manual must be considered and addressed by the Board in assessing the evidence regarding an asbestos related claim. See VAOPGCPREC 4-2000. A recent VA pulmonary examination noted the presence of bronchitis and emphysematous changes, as well as COPD which the examiner opined was more likely than not related to smoking rather than asbestos exposure; as well as clinical findings of "pleural scarring and calcified nodules from possible remote tuberculosis". The examiner also opined that based on classic or characteristic findings, these lung changes were probably due to smoking. Presumably the examiner meant the changes other than those relating to possible PTB, whenever that may have been first present. The possibility of in-service incurrence of any such respiratory problems on a direct or presumptive basis has not been yet fully addressed. And moreover, the examiner noted that the veteran's exposure to asbestos in service had not been "continuous". Whether this was intended to be a gratuitous remark or not, it diminishes the efficacy of the aggregate opinion. In that regard, the Board would note that under the cited pertinent special regulations, there is no requirement that a claimant's alleged asbestos exposure need be constant, for any particular period of time, or even at any particular level of exposure throughout the veteran's service. In order to be a viable medical opinion, it must be given in the specific case, not in a hypothetical manner as to what is usual or not usual, but whether it is at least or more likely in a given specific instance. Moreover, it is unclear that the veteran is aware that it is beneficial to his claim to provide evidence of a chronic post-service respiratory disability if possible. The Board has no choice but to remand the case for the following actions: 1. The appellant 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). He should be asked to provide any clinical data available as to all post- service respiratory problems and care, and to the extent that they are able to help him, the RO should do so. He should also provide documentation including clinical information as to symptoms he or others, i.e., physicians, may have attributed to in-service environmental toxin exposure including lead since service. 2. The case should then be referred to a VA physician with appropriate expertise to render an opinion as to the duration and etiology of all of the veteran's current respiratory problems. The entire record must be available to the examiner, and the opinion should be annotated to the evidence of record. Specifically, the examiner should address: (a) does the veteran have any disability which may be as likely as not due to or in any way related to exposure to lead or other environmental poisons in service; (b) does the veteran have any respiratory disability which may be as likely as not due to his service, was present within appropriate presumptive periods, and/or is associable in any way with exposures in service to either lead or asbestos? 3. The case should then be reviewed by the RO. If the decision remains unsatisfactory, a SSOC should be issued, the veteran and his representative should be given an opportunity to respond, and the case should be returned to the Board for further appellate review. The veteran need do nothing further until so notified. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ JEFF MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs