Citation Nr: 1127759	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  06-29 963	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for a respiratory disorder, to include asbestosis.


REPRESENTATION

Appellant represented by:	South Dakota Division of Veterans Affairs


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel



INTRODUCTION

The Veteran had active service from November 1964 until September 1966.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama.  

This issue was previously before the Board and in a decision of March 2009 the Board remanded the case for additional development.  The case came again before the Board and a denial in the matter was issued in December 2009.  In July 2010, the United States Court of Appeals for Veterans Claims (Court) granted a June 2009 joint motion for remand by the appellant and VA General Counsel, and ordered that the Board comply with the joint motion.  Pursuant to the joint motion, the Board remanded for additional development in a decision of September 2010.

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

In a June 2009 joint motion for remand, it was stated that VA's duty to assist has not been met.  Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  

The duties imposed under the VCAA include the duty to make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A(a)(1) (West 2002).  Pursuant to that duty, the Veteran is entitled to a VA examination adequate to decide his claim.  Barr v. Nicholson, 21 Vet. App. 303, (2007).  

Here, on remand by the Board in September 2010, a VA examiner was asked to "identify all respiratory disorders which the Veteran has, and for each disorder it is to indicate whether it is at least as likely as not that the disorder is related to the Veteran's service."  An examination was conducted in November 2010, during which the examiner indicated only that there were no objective findings to substantiate a diagnosis of asbestosis.  The examiner did not identify what other respiratory disorders the Veteran had, if any, as directed by the Board's remand orders of 2010.  The Board notes also that in May 2009 the Veteran had been diagnosed with "minimal asthma" and that the examiner in 2010 made no mention of this prior diagnosis.

Accordingly, the case is REMANDED for the following action:

The Veteran is to be scheduled for VA examination of his respiratory system.  The examiner is to address each of the following:

a. Identify all respiratory disorders which the Veteran has.  For each disorder identified, indicate whether it is at least as likely as not related to the Veteran's service.

b. Irrespective of the above, rule in or out a diagnosis of asthma, and state whether asthma is at least as likely as not related to service.

c. If asthma is not found, state whether the prior diagnosis of asthma in May 2009 was a supportable diagnosis.  Indicate your reasoning for concluding that the diagnosis of asthma either was or was not supported.

If no respiratory illness is identified, specifically state that this is the case.


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).



_________________________________________________
H. N. SCHWARTZ
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).