Citation Nr: 1301489	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  11-28 940	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for a lung condition, claimed as chronic obstructive pulmonary disease, to include as due to asbestos exposure.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel

INTRODUCTION

The Veteran served on active duty from November 1952 to October 1956.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  In May 2012, the Board remanded the appeal for further development, and it now returns to the Board for appellate review.

 The Veteran testified at an April 2012 hearing by the undersigned Veterans Law Judge held sitting at the RO.  A transcript of that hearing is associated with the claims file.

The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

Unfortunately, the Board's review of the record reveals that another remand is necessary.  Specifically, there are outstanding, relevant treatment records that need to be obtained.  

The Veteran testified in April 2012 that he had begun receiving treatment for his respiratory disorder at the Huntington VA Medical Center about four or five years prior.  The claims file includes VA treatment notes from that facility dated from April 2005 to April 2006 and from November 2008 to May 2012.  However, there are separate hospital admission reports dated from May 2007 to October 2008 and from July 2012 which are not accompanied by treatment notes.  Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Thus, all VA treatment records from the Huntington VAMC dated from May 2007 through October 2008 and from May 2012 forward must be added to the claims file.  Id.; see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998).   

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1. Obtain all VA treatment records from the Huntington VAMC and any associated outpatient clinics dated from May 2007 through October 2008 and from May 2012 onward.  All requests and responses, positive and negative, must be documented in the claims file.

2. After completing the above actions, the AOJ should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs.  

3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence and the claim should be readjudicated.  If any benefit sought is not resolved to the Veteran's satisfaction, the Veteran and his representative 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 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. 2012).



_________________________________________________
ROBERT C. SCHARNBERGER
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).