Citation Nr: 1300609 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-28 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD) to include emphysema, as a result of exposure to asbestos. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 2009, a statement of the case was issued in April 2010, and a substantive appeal was received in June 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 The RO denied the Veteran's claim largely on the basis of a February 2009 VA examination report. The February 2009 examiner found no evidence of asbestosis; and he opined that the Veteran's COPD was likely due to his chronic tobacco smoking. The Board notes that while there may not have been any evidence of asbestosis on the February 2009 x-rays, the claims file does contain evidence of asbestosis. Specifically, a private physician (Dr. D.A.S.) submitted a September 2008 medical report in which he stated that with a reasonable degree of medical probability, the Veteran has asbestosis, COPD, and emphysema. Dr. D.A.S. stated that two x-rays were available for viewing (dated March 16, 2008 and September 14, 2008). He stated that both films were of good quality, and that both films showed mid to lower lobe peripheral irregular opacities that are consistent with pulmonary fibrosis and of profusion 1/0. The Board's review of the claims file has failed to find any x-rays dated March 16, 2008. The claims file contains x-rays dated March 4, 2008. However, unlike the x-rays to which Dr. D.A.S. referred, these x-rays were entirely negative. There was no radiographic evidence for active pulmonary disease. The Board also could not find x-rays dated September 14, 2008. The Board notes that this is the same date as Dr. D.A.S.'s examination report. Consequently, it appears that the x-rays were conducted as part of his examination. It appears that either the claims file is missing two sets of x-rays that would be favorable to the Veteran's claim, or that Dr. D.A.S.'s examination report is inaccurate. The Board finds that these x-ray reports should be obtained and incorporated with the claims file. The RO should request an addendum from the February 2009 VA examiner, in which he addresses the additional x-rays (if located), and the September 2008 medical report of Dr. D.A.S. Accordingly, the case is REMANDED for the following action: 1. The RO should make sure that the VA records are updated and in the claims folder. 2. The RO should attempt to locate x-rays and reports dated March 16, 2008 and September 14, 2008. It may be necessary to contact Dr. D.A.S. in order to obtain the x-rays. 3. The RO should then request an addendum opinion from the February 2009 VA examiner. The examiner should be asked to review the additional x-rays (if located) and discuss them along with the findings in Dr. D.A.S.'s September 2008 medical report. 4. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record 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. 2012). _________________________________________________ J. A. MARKEY 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).