Citation Nr: 1300491 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-02 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos, or in the alternative, claimed as secondary to service-connected asbestos-related pleural disease with fibrosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from February 1959 to November 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In June 2010, the Veteran testified at a Travel Board hearing at the RO before the undersigned. A transcript of the hearing is associated with the claims file. In January 2011, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2012). The requested opinion, dated in May 2011, has been provided and associated with the Veteran's VA claims folder. In July 2011, evidence was associated with the Veteran's claims folder accompanied by a waiver of local consideration. This waiver is contained in the Veteran's VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). In a decision dated in October 2011, the Board denied entitlement to service connection for COPD and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In its Order dated in May 2012, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties requesting that the Court vacate the Board's October 2011 decision and remand the appeal to the Board for further proceedings. 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 the May 2012 Joint Motion, the parties agreed that the Board failed to assist the Veteran in developing the claim. Specifically, the parties believed that because a January 2011 VA computed tomography (CT) scan of the chest was received in June 2011 unaccompanied by other treatment records and the most recent VA treatment record in the claims file dated prior to the January 2011 radiology report was dated in September 2009, that the Board should have requested additional VA treatment records before deciding the claim. Upon review of the claims file, the Board notes that the Veteran's VA physician, A. B., D.O., indicated in a September 2007 statement that he had been treating the Veteran for COPD since July 2006. Therefore, on remand, the AMC/RO should obtain and associate with the claims file all VA treatment records dated from July 2006 to the present that are not duplicates of those already in the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The parties also agreed that because the physician who rendered the expert medical opinion in May 2011 did not have access to the January 2011 radiology report and specifically indicated that he reserved the right to change his opinions if additional information was provided, that the Board should consider whether any evidence added to the claims file warrants an addendum medical opinion. The Board will review the new medical and lay evidence after the AMC/RO completes the requested development and returns the case to the Board for appellate review. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claim for service connection for COPD. The AMC/RO should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record. Even if the Veteran does not respond, the AMC/RO should obtain from the East Orange VA Medical Center (VAMC) ongoing records of evaluation and treatment for the claimed COPD disability dated from July 2006 to the present that are not duplicates of those in the claims file. 2. After undertaking any other development deemed appropriate the AMC/RO should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review, to include consideration of whether an addendum expert medical opinion is required to decide the claim. 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). _________________________________________________ Thomas H. O'Shay 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) (2012).