Citation Nr: 1121596 Decision Date: 06/03/11 Archive Date: 06/09/11 DOCKET NO. 09-34 260 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for a lung disorder, claimed as due to asbestos exposure, and to smoke/chemical inhalation. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1987 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decisions by RO. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in April 2011. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran asserts that his current lung disease is caused by asbestos exposure while serving in the U.S. Navy aboard the U.S.S. Constellation CV-64 in 1988 as a first machinist's mate. Specifically, he asserts that, while being assigned to the Auxiliaries Division, air conditioning shop (A-4), he was ordered to recondition a berthing area fan room, which included cleaning the fan coils, removing the deteriorating insulation from the pipes and reinsulating them, and painting the room, where he was exposed to asbestos. The Veteran reported not wearing any lung protection while performing the renovation, discovering that the insulation around the pipes was asbestos, and being reassigned so that an asbestos removal crew could finish the job. The Veteran also described an incident involving a fire in the engine room while docked in San Diego. In his capacity of a fireman, he reports being assigned to fight the fire, suffering smoke inhalation and being exposed to hazardous chemical inhalants and irritants. He reports suffering from asthma, sarcoidosis of the lungs, and scar tissue in the lungs, as the result of his asbestos and smoke/chemical exposure in service. Notably, the Veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, confirms that he served aboard the U.S.S. Constellation CV64, and indicates that his MOS was of machinist's mate. A CV64 "Medical Surveillance Questionnaire," dated in September 1984, reflects that the Veteran reported being exposed to asbestos "sometime in June." Here, the Veteran indicated working in the steam shop where many steam pipes were "lagged with asbestos." The reviewing official indicated that, based on a review of the questionnaire, it was recommended that the Veteran participate in a medical surveillance program. A November 1989 Periodic Health Evaluation for the Navy Asbestos Medical Surveillance Program submitted to the Navy Environmental Health Center shows that the Veteran reported working directly with and around asbestos on a respiratory questionnaire. On examination, his chest configuration and stature appeared to be normal, and he did not have crackles or wheezes in his chest. A spirometer test record, dated in November 1989, showed findings of "good" effort and reflected a history that was negative for smoking, asthma, shortness of breath, wheezing, or a heart condition. A statement from the Veteran's private physician, dated in December 2009, noted findings that the Veteran had a current diagnosis of asthma and of sarcoidosis. The Board is aware that the Veteran has not yet been afforded a VA examination to ascertain a medical nexus opinion and determine the nature and etiology of his current lung disorder. Given the Veteran's competent and credible assertions, to include his own testimony, that he experiences a current lung disorder, to include sarcoidosis and asthma, along with a private physician's statement confirming that he currently suffers from sarcoidosis and asthma, and service records indicating likely asbestos exposure, the Board finds that a VA examination is warranted to address the nature and etiology of the claimed lung disorder. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465. 469 (1994). Prior to arranging for the Veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding VA records. During his hearing testimony, the Veteran indicated that he is receiving ongoing treatment for his lung disorder from the Jamaica Plain, Massachusetts VA Medical Center (VAMC), dated through 2008. Hence, the RO must obtain all outstanding medical records from the Jamaica Plain VAMC, dated from 2008 to the present. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the Board notes that in the Veteran's hearing testimony he mentioned undergoing treatment at private treatment facilities, including Massachusetts General Hospital and Quincy Hospital, the records of which have not yet been associated with the claims file. The Board finds that attempts must be made to locate obtain these outstanding records before the claim may be adjudicated. The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act (VCAA). See 38 C.F.R. § 3.159 (2010). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the requested actions, the RO should also undertake any other development or notification action deemed warranted by VCAA prior to readjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to request that they provide sufficient information and, if necessary, authorization to enable the RO to obtain any additional evidence pertinent to the claim being remanded. In particular, the RO should attempt to obtain records from Massachusetts General Hospital and from Quincy Hospital after obtaining authorization to do so from the Veteran. 2. The RO should take all indicated action to obtain from the Jamaica Plain VAMC all outstanding medical records from 2008 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Thereafter, the RO should schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed lung disorder. In conjunction with the examination, the examiner must review the entire claims file, including a complete copy of this remand. Based on his/her review of the case, including the Veteran's lay statements, and the examination findings, the examiner is requested to opine as to whether any current lung or respiratory disability pathology at least as likely as not (e.g., a 50 percent or greater probability) is related to his exposure to asbestos or other harmful substances during his period of active service. The examiner should set forth in the examination report all examination findings and the complete rationale for any conclusions reached. If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. 4. After completing all indicated development, the RO should readjudicate the Veteran's claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ 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) (2010).