Citation Nr: 1301993 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 04-20 205 ) 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 chronic obstructive pulmonary disease (COPD) and asbestosis and to also include as secondary to asbestos exposure in service. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1963 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for COPD. The Veteran timely appealed that decision. The Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge in September 2006; a transcript of that hearing is associated with the claims file. The claim was initially before the Board in June 2007 when it was remanded for further development. It was returned to the Board in September 2008, when the Board denied entitlement to service connection for a respiratory disorder. The Veteran timely appealed that denial to the United States Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, the Veteran and the Secretary of the Department of Veterans Affairs (Secretary) agreed to jointly remand the case back to the Board for additional development. The Court vacated the September 2008 Board decision in a July 2009 Court order and returned the case to the Board for compliance with the Joint Motion for Remand. The case returned to the Board in February 2010, when the Board remanded it for additional development in compliance with the Joint Motion. The case returned to the Board in September 2011, when the Board decided to obtain a VHA opinion; that opinion was obtained in November 2011 and notice of that opinion was sent to the Veteran in a January 2012 letter. In a February 2012 correspondence, the Veteran specifically declined to waive jurisdiction and subsequently the Board was forced to remand the Veteran's claim again in April 2012. The case has subsequently been returned to the Board at this time for further appellate review. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board notes that in addition to the February 2012 correspondence which declined waiver of jurisdiction, the Veteran also attached a statement which indicated that he was sending some medical documents-which were from VA treatment records from November 2009-as well as another internet article documenting asbestos exposure aboard naval vessels. In that statement, however, the Veteran indicated that he attended the MOPC in Mobile, Alabama as recently as June 2011; the Board notes that there is a VA Outpatient Clinic located in Mobile, Alabama. A review of the claims file demonstrates that, aside from the three pages of spliced VA treatment records provided by the Veteran from November 2009, the most recent VA treatment records in the claims file are from March 2007. Thus, it appears that there are several VA treatment records which are missing from the file, which the Board unfortunately did not recognize in the April 2012. The Board sincerely apologizes for further delay in adjudication of the claim, but accordingly, the Board must remand in order to obtain those outstanding VA treatment records at this time. Any ongoing private treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Montgomery VA Medical Center, Biloxi VA Medical Center, Mobile VA Medical Center, or any other VA medical facility that may have treated the Veteran, since March 2007 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment or evaluation that he may have received for his claimed respiratory condition which is not already of record, including any continued ongoing treatment with Dr. L.M.M. since 1991. After securing the necessary release forms, attempt to obtain and associate those identified records with the claims file. If records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Following the above development, the RO should review the claims file and readjudicate the Veteran's claim of service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and asbestosis and to also include as secondary to asbestos exposure in service. If the benefits sought remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. 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). _________________________________________________ JOHN L. PRICHARD 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).