Citation Nr: 1306125 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 08-29 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a respiratory disorder, including as due to asbestos exposure. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii which denied the Veteran's claims. In March 2012, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. 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 on his part. REMAND For the following reasons, the Board finds that the Veteran's appeal must be remanded to ensure that he is accorded full compliance with the statutory duty to assist. During a July 2007 hearing, the Veteran testified that he had had applied for disability benefits from the Social Security Administration (SSA). See the hearing transcript, page 18. The claims file does not contain a decision to grant or deny benefits or the medical records upon which that determination was based. Nor does it appear that an attempt has made to procure them. VA has a duty to obtain SSA records when they may be relevant to a claim. 38 U.S.C.A. § 5103A(c)(3) (West 2002); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The possibility that SSA records could contain evidence relevant to the Veteran's claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Therefore, the Board finds that an attempt should be made to obtain any available SSA records. 38 C.F.R. § 3.159(c)(2) (2012). With respect to the Veteran's respiratory disorder claim, the record indicates that he has been diagnosed with emphysema, asthma, an upper respiratory infection, pneumonia, pleural inflammatory disease, obstructive sleep apnea, chronic obstructive pulmonary disease (COPD), and asbestos lung disease. The Veteran contends that his respiratory disorders are due to in-service asbestos exposure. Upon review, the Veteran's DD-214s report that his military occupational specialty was equivalent to a maintenance engineer and a marine mechanic. During the March 2012 hearing, the Veteran testified that his job duties included removing piping that was covered in asbestos. See the hearing transcript, page 4. He acknowledged that he worked at the Long Beach Naval Shipyard after separating from service, but noted that, by that time, the dangers of asbestos had been known and specialists were tasked with removing asbestos. Id at 8. While cognizant that the Veteran has testified that he was not exposed to asbestos following his separation from service, the Board observes that the record contains a September 1980 post-service treatment record indicating that he injured his back while chipping bricks out of a boiler. Furthermore, the Veteran has testified that he was an automotive mechanic after separating from service. See the March 2012 hearing transcript, page 8. See M21-1MR IV.ii.2.C.9.f. (Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.) The Veteran was afforded a VA examination to determine the etiology of his claimed respiratory disorder in December 2006. After reviewing the Veteran's claims folder and conducting a physical examination, the VA examiner stated that that the Veteran's asthma was not related to his in-service asbestos exposure. The examiner did not, however, comment on the relationship, if any, between his in-service asbestos exposure and his other diagnosed respiratory disorders. In support of his claim, the Veteran submitted a November 2008 statement from I.S., M.D. (initials used to protect the Veteran's privacy), who reported that the Veteran had a history of asbestos exposure while on active duty. It was noted that a recent chest x-ray revealed "lung fibrosis versus idiopathic pulmonary fibrosis" that "could be" related to asbestos exposure. However, Dr. I.S. did not comment on the impact, if any, of the Veteran's possible post-service asbestos exposure. Moreover, the use of speculative language, such as there "could be," is troubling because the Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Upon review, this issue presents a medical question which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet.App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Therefore, the Board finds that a VA examination and medical opinion are necessary to determine the nature and etiology of any respiratory disorder that may be present. With respect to the claimed right knee disorder, during the March 2012 hearing, the Veteran testified that he injured his knee by bumping it while climbing ladders. See the hearing transcript, page 11. The Veteran, as a layperson, is competent to testify as to his experiences during service, to include injuring his knee and experiencing knee pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In addition, the evidence of record indicates that the Veteran has been diagnosed with degenerative changes in his knee. See a February 2007 x-ray study. Under these circumstances, the Board finds that a VA examination and medical opinion are necessary. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Moreover, the evidence of record includes a June 2003 statement that the Veteran wrote to his congressman. Unfortunately, this letter was written in a foreign language and has not been translated into English. This must be done before the Board may adequately review the evidence. Finally, following the September 2010 supplemental statement of the case, the Veteran submitted additional evidence directly to the Board. This evidence has not been considered by the RO, and no waiver of initial RO consideration is currently of record. See 38 C.F.R. § 1304 (2012). Without a written waiver of initial RO consideration of the additional records, this issue must be returned to the agency of original jurisdiction for readjudication. See Disabled American Veterans v. Principi, 327 F.3d 1339 (Fed. Cir. 2003) (VA regulation allowing the Board to consider additional evidence without remanding case to the agency of original jurisdiction for initial consideration was invalid); see also Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must ensure that all evidence in the claims file has been translated into English, to include the June 2003 letter from the Veteran to his congressman that was received by VA in September 2004 (contained in Volume I of the claims file). These English translations should be associated with the original(s) so that the Board can determine that all necessary translations have been obtained. 2. The RO/AMC should take all indicated action to contact SSA for the purpose of obtaining copies of all decisions and records that pertain to the Veteran's claim for disability benefits from that agency. Any records obtained should be associated with the Veteran's VA claims folder. Any notice from SSA that these records are not available should be also noted in the Veteran's claims folder. 3. Then, the Veteran should be afforded a VA examination to determine the nature and etiology of any respiratory disorder(s) that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current respiratory disorders. For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder is related to the Veteran's military service, to include asbestos exposure therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Then, the Veteran should be afforded a VA examination to determine the nature and etiology of any right knee disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The Veteran contends that he has a current right knee disability due to hitting his knee against ladder rungs while in-service. While the Veteran's service treatment records are negative for any in-service injury, he is competent to report such an injury. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current right knee disabilities. For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder is related to the Veteran's military service, including his reported injury therein. In so doing, he or she should specifically address whether the current disorder is consistent with the Veteran's reported in-service injury. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review 5. When the actions requested have been completed, undertake any other indicated development, if deemed by the RO/AMC to be appropriate under the law, to include any development indicated by the translated June 2003 letter. 6. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence, to include the Tripler Army Medical Hospital treatment records received after the September 2010 SSOC. If the benefits sought on appeal are not granted, the Veteran 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 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 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). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).