Citation Nr: 0813818 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-19 183 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for claimed asbestos- related lung disease. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The veteran served on active duty from June 1943 to March 1946. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2002 RO decision. In July 2005, the Board granted the veteran's motion to have his case advanced on the Board's docket. In February 2006, the Board remanded the case to the RO for additional development of the record. In June 2006, the Board denied the veteran's claim. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in an October 2007 order, granted the parties' joint motion for remand, vacating the Board's decision and remanding the case for compliance with the terms of the joint motion. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After a careful review of the record, the Board finds that this matter must be remanded for additional development and adjudication. In an October 2007 order, the Court granted a joint motion between VA and the veteran in which the parties agreed that the veteran's case should be remanded. In the joint motion, the parties agreed that the Board should address evidence contained in the veteran's claims file. Specifically, the parties agreed that the Board should address an August 2002 statement by Dr. Jose Armonio, Jr., which states that the veteran has been diagnosed with pulmonary asbestosis, a September 2004 statement by Dr. Armonio which states that the veteran has asbestosis, and a July 2003 examination report from Dr. Daniel Leibman of the Strand Lung Center which notes, as part of the impression/plan section of the report, that that veteran has asbestos-related lung disease including interstitial lung disease by his physical examination and by his restrictive lung process. Based on the foregoing, and consistent with the Court's October 2007 order, the Board finds that this matter should be remanded in order that the RO may request an additional medical examination specifically addressing the medical opinions set forth hereinabove. In addition, the Board notes that during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The reasoning of this case applies here as well. In the present appeal, the veteran was not provided with notice of what type of information and evidence was needed to substantiate his claim, and was not provided with notice of the type of evidence necessary to establish a disability rating or effective date. Upon remand therefore, the veteran should be given proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include notice that informs the veteran that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted, and also includes an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. In view of the above, this matter is REMANDED to the RO for the following actions: 1. The RO should send the veteran and his representative, if any, a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should explain, what, if any, information and (medical and lay) evidence not previously provided to VA is necessary to substantiate the veteran's claim. The letter should indicate which portion of the evidence, if any, is to be provided by the veteran and which portion, if any, VA will attempt to obtain on his behalf. The letter should also request that the veteran provide any evidence in his possession that pertains to the claim, and should contain an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should schedule the veteran for a VA examination by a physician with appropriate expertise to determine the nature and likely etiology of the claimed lung disease. It is imperative that the reviewing physician who is designated to examine the claims folder reviews the medical records contained in claims folder, and acknowledges such review in the medical opinion report. The examination report should reflect consideration of the veteran's documented, relevant medical history. Based on a review of the veteran's medical history and with consideration of sound medical principles, the reviewing physician is asked to address the following questions: (a) does the veteran have an asbestos-related lung disease; if so, please state the diagnosis, (b) does the veteran have any other lung disability; if so, please state the diagnosis, and (c) is it at least as likely as not (50 percent probability or more) that a diagnosed lung disability had its onset during the veteran's active service, or was manifested within one year from discharge, or was otherwise etiologically related to any incident or injury that occurred during his period of service, to include any asbestos exposure in service. In this regard, the physician is asked to comment on the evidence contained in the veteran's claims file, to include the veteran's service medical records, VA medical records and examination reports, VA medical expert opinions, and the examiner is asked to specifically comment on an August 2002 statement by Dr. Jose Armonio, Jr., which states that the veteran has been diagnosed with pulmonary asbestosis, a September 2004 statement by Dr. Armonio which states that the veteran has asbestosis, and a July 2003 examination report from Dr. Daniel Leibman of the Strand Lung Center which notes, as part of the impression/plan section of the report, that that veteran has asbestos-related lung disease including interstitial lung disease by his physical examination and by his restrictive lung process. The examiner should set forth the complete rationale for any conclusions drawn or opinions expressed, in the record, in a legible report. 3. After completion of the foregoing, and after undertaking any further development deemed warranted by the record (and keeping in mind the dictates of the Veterans Claims Assistance Act of 2000), the RO should re-adjudicate the veteran's claim in light of all pertinent evidence and legal authority. In the event the decision remains adverse to him, the veteran must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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). _________________________________________________ STEPHEN L. WILKINS 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).