Citation Nr: 0810869 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 06-22 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD) claimed as a residual of exposure to ionizing radiation, or exposure to coal dust, carbon tetrachloride, and/or hydrogen ammonia during active service. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from August 1947 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2007 the appellant testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the U.S. Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the veteran asserts that he developed COPD as a result of exposure to chemicals during active service. The evidence of record reveals a diagnosis of COPD dated 2004. The veteran claims this is his initial diagnosis with the disability. Furthermore, the evidence of record reveals that the veteran has a long history of smoking; however, the veteran has testified that he quit smoking in 1980. His assertion is that, because he quit smoking in 1980, smoking is not the cause of his COPD, but chemical exposure during service is the cause of his COPD. In the alternate, the veteran claims that his COPD is related to exposure to ionizing radiation during service; however, COPD is not a radiogenic disease, and the veteran has submitted no evidence linking the current lung disorder to any alleged radiation exposure. The veteran has submitted private medical records which appear to link the veteran's current COPD to military service, based solely on his report of exposure to chemicals during service. This evidence appears to meet the very low threshold established by McLendon to require a VA examination and medical nexus opinion. Accordingly, such an examination should be conducted with respect to the veteran's claim for service connection for COPD. As noted above, veteran's active military service extended from August 1947 to August 1967. The veteran retired from active service. Accordingly, the veteran would have been eligible for medical treatment at service department medical facilities as a military retiree. Review of the evidence of record reveals that there is no medical evidence covering the period of time from the veteran's retirement from active service in 1967, until a private treatment record dated August 2004, a period of almost four decades. The veteran should be requested to provide information so that VA can obtain medical records from this period of time. Specifically, the veteran's post-service medical records from military medical facilities should be requested. VA's duty to assist is heightened when records are in the control of a government agency. Gobber v. Derwinski, 2 Vet. App. 470 (1992). Accordingly, the case is REMANDED for the following action: 1. The veteran should be asked to provide a list containing the names of all health care professionals and/or facilities (private and governmental) where he has received medical treatment since 1967. Subsequently, and after securing the proper authorizations where necessary, the RO should make arrangements in order to obtain all the records of treatment from all the sources listed by the veteran which are not already on file. The veteran should be requested to indicate which service department medical facilities he received medical treatment at as a military retiree for the period of time from 1967 to the present. All information obtained should be made part of the file. The RO should also obtain all the records of any treatment at VA facilities which are not already on file. 2. The veteran should be accorded a VA examination for lung disorders. The report of examination should include a detailed account of all manifestations of COPD and other respiratory disorders found to be present. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner is requested to review the medical evidence of record with emphasis on the October 2006 private medical opinion from Dr. Schelbar. The examiner is requested to offer the following opinions as the etiology of the veteran's current COPD: a) What is the most likely etiology of the veteran's current COPD? b) Is it as least as likely as not (a 50/50 probability or higher) that any current lung disorder, including COPD, is related to alleged in-service chemical exposure that would have ended in 1967. With regard to both questions, please address the veteran's history of smoking that he reports ended in 1980. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examiner should provide complete rationale for all conclusions reached. 3. Following the above, readjudicate the appellant's claim for service connection for COPD. If any benefit on appeal remains denied, a Supplemental Statement of the Case should be issued, and the appellant and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised of the importance of reporting for and fully participating in the VA examination, and that failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2007). 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).