Citation Nr: 1304017 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-18 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for laryngeal cancer, including as due to exposure to Lewisite, mustard gas, and/or other chemicals. 2. Entitlement to service connection for asthma, including as due to exposure to Lewisite, mustard gas, and/or other chemicals. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Spouse ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1964 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The VA has procedures in place to develop claims of exposure to mustard gas. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section F. The Board notes that only claims related to mustard gas or Lewisite exposure filed after January 19, 2005, must be handled by the Muskogee RO. As such, the New York RO (near the area where the Veteran resides) transferred his claim to the Muskogee RO. In November 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The Board notes that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND A review of the record discloses a need for further development prior to appellate review on the merits of the claims for service connection for laryngeal cancer and asthma. The Veterans Benefits Administration (VBA) sought to obtain confirmation from the Department of Defense that the Veteran was not exposed to mustard gas or Lewisite, and the June 2009 response by the Department of Defense and indicated that no such exposure could be confirmed. However, the Veteran has also claimed that he was exposed to fumes and chemicals as a welder during active duty service. The Veteran's military personnel records disclose that his military occupational specialty (MOS) was a welder. During the September 2011 Board personal hearing, the Veteran testified that his main function in the military was welding and that he was exposed to fumes and chemicals from the welding process (Transcript, page 4). The Veteran also testified he was not exposed to welding fumes or industrial contaminants in his post-service civilian occupation (Transcript, page 6). Resolving all reasonable doubt in the Veteran's favor, the Board finds that exposure to fumes and chemicals was consistent with the Veteran's duties of welding during active service. See 38 U.S.C.A. § 1154 (a) (West 2002 & Sup. 2011); 38 C.F.R. § 3.102 (2012). This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern the relationship, if any, between the Veteran's currently diagnosed laryngeal cancer and asthma, and his military service, in particular the reported exposure to fumes and chemicals as a welder in service. These questions must be addressed by an appropriately qualified medical professional. During the November 2011 Board personal hearing, the Veteran testified that he received treatment for his disabilities since the 1960's from Dr. Florian. He testified that Dr. Florian is deceased, but that he has been receiving treatment from his successor Dr. Lefevre. Dr. Lefevre submitted a statement in January 2012 that he had been treating the Veteran for his disabilities since 1990. However, the actual treatment records are not in the claims file, nor is there indication in the file noting the records are unavailable. Hence, the RO should seek to obtain any records evidencing treatment for laryngeal cancer and asthma from Dr. Lefevre and Dr. Florian since 1969. The Veteran also testified that he was currently receiving treatment at the VA Medical Center (VAMC) in Brooklyn, New York. The most recent VA records in the claims file are dated in December 2008. Because the Veteran has indicated that he has continued to receive regular treatment for his laryngeal cancer and asthma since December 2008, the Board finds that the records from the Brooklyn VAMC, dated from December 2008 to the present, should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he provide authorization for VA to obtain his complete medical records, including those from Dr. Lefevre and Dr. Florian, since 1969. Advise the physician that actual treatment records are needed, not a summary. If the identified records are not obtained, advise the Veteran of that fact and provide him an additional opportunity to obtain the records. 2. The RO/AMC should attempt to obtain and associate with the claims file records from the Brooklyn VAMC in Brooklyn, New York, dated from December 2008 to the present. If no records can be found or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. When the above development has been completed and any outstanding medical records obtained, to the extent possible, the Veteran should then be scheduled for a VA examination regarding the claims for service connection for laryngeal cancer and asthma. All indicated tests and studies are to be performed. In conjunction with the examination, the relevant documents in the claims folder should be made available to the VA examiner for review of the case. The VA examiner should also request a history from the Veteran. A notation to the effect that the record review and history took place should be included in the report of the examiner. The VA examiner should offer the following opinions: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has laryngeal cancer which had its onset during service or is related to service? The examiner should specifically discuss exposure to fumes and chemicals as a welder in service. b) Is it at least as likely as not (50 percent probability or greater) that the Veteran has asthma which had its onset during service or is related to service? The examiner should specifically discuss exposure to fumes and chemicals as a welder in service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale for any opinion expressed in the examination report(s) should be provided. If any opinion can only be provided with resort to speculation, the examiner should so state and provide the reason that an opinion would require speculation. 4. After completion of the foregoing and all other necessary development, the RO should re-adjudicate the issues of service connection for laryngeal cancer and asthma. If the benefits sought remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). 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). _________________________________________________ MICHELLE L. KANE 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).