Citation Nr: 1137167 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 09-35 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from August 1950 to August 1952, with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard both before and after his period of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Subsequently, the Board denied this claim in a June 2010 decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (hereinafter "the Court"). In a February 2011 Joint Motion, both the appellant and the VA Secretary (referred to hereinafter as "the parties") requested that the Board decision be vacated and the case remanded for compliance with the terms of the parties' Joint Motion. The Court issued an order granting the Joint Motion later in February 2011. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant, if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). The parties in their Joint Motion determined that a Remand to the Board was necessary because the Board had relied on an inadequate VA examination when it denied the Veteran's service connection claim. They noted that the Veteran had offered two theories of entitlement to service connection for COPD: 1) exposure to asbestos; and 2) exposure to petroleum and gasoline fumes while serving with the 289th Combat Petroleum Supply Company in post-war Europe. However, the June 2009 VA examiner only addressed entitlement to service connection for COPD based on exposure to asbestos without discussing the likelihood that exposure to gasoline and petroleum fumes might have caused the Veteran's current disability. The parties also contend that the Board mischaracterized the June 2009 VA examiner's finding that the Veteran's condition was more likely caused by a history of smoking than by asbestos exposure. Therefore, on remand the RO must schedule the Veteran for an additional VA examination to allow an examiner to address both of his theories of entitlement to service connection. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing Board's duty to return inadequate examination report); Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (remanding when VA examination was inadequate for evaluation purposes); Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (concluding that inadequate medical evaluation frustrates judicial review). The Board notes that subsequent to the Joint Remand the Veteran's attorney submitted an August 2011 private medical opinion by A.A., M.D., F.H.M. Dr. A.A. opined that it was more likely than not that the Veteran's exposure to asbestos and other environmental contaminants during service contributed to the development of his COPD and his progressively declining lung function. Dr. A.A. conceded that smoking was a major contributor to developing COPD but stated that smoking did not guarantee the development of COPD. Therefore, on remand the VA examiner also must comment on and discuss whether he or she agrees or disagrees with the opinions of the June 2009 VA examiner and Dr. A.A.'s August 2011 private medical opinion and why. In their Joint Motion, the parties also agreed that a remand was necessary for VA to comply with its duty to assist. The Veteran's service treatment records are not available and are presumed destroyed in a fire. They noted that the record contained a specific listing of periods of time when the Veteran claimed to have received in-service medical treatment for bronchitis: February 1951, December 1951 to December 1952, and June 1952. They further noted that VA requested a search of morning reports from February 1952 to November 1952, but that no effort was made to confirm treatment from February 1951, December 1951 to January 1952, or December 1952. Therefore, on remand the RO must request from the appropriate authorities a search of morning reports from February 1951, December 1951 to January 1952, and December 1952 to determine if the Veteran had reported for sick call while in service with any respiratory complaints. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO shall, in order to determine if the Veteran had reported for sick call while in service with any respiratory complaints, take all appropriate steps to search the applicable morning reports or other appropriate records, for the following periods: February 1951, December 1951 to January 1952, and December 1952. All appropriate sources, such as the National Archives or the Joint Services Records Research Center (JSRRC), shall be contacted. Relevant records shall be associated with the claims file. If there are no relevant records for these time periods, documentation used in making that determination shall be set forth in the claims file. 2. The RO shall then arrange for the Veteran to undergo an appropriate VA examination so as to ascertain the extent, nature, and etiology of his COPD. The claims file, to include a complete copy of this Remand, must be made available to the examiner in conjunction with conducting the examination of the Veteran. The examiner shall annotate his report to reflect that review of the claims file was undertaken. A discussion of the Veteran's medical history and assertions shall also be included. All appropriate tests or studies shall be accomplished, and all clinical findings shall be reported in detail. After review of the claims file and examination of the Veteran, the examiner shall render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or more probability) that the Veteran's COPD was incurred in or aggravated by the Veteran's period of active service, to include as due to asbestos exposure or as due to exposure to gasoline and petroleum fumes. In providing the requested opinion, the examiner must acknowledge and discuss the Veteran's assertions regarding his exposure to asbestos and to gasoline and petroleum fumes, his history of smoking, and whether the examiner agrees or disagrees with the opinions of the June 2009 VA examiner and Dr. A.A.'s August 2011 private medical opinion and why. A complete rationale for all opinions expressed should be provided in a legible report. If the examiner concludes that an opinion cannot be offered without resort to speculation, it should be indicated and he or she should explain why an opinion cannot be reached. 3. Thereafter, the issue on appeal should again be reviewed on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2010). _________________________________________________ JONATHAN B. KRAMER 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) (2010).