Citation Nr: 1310437 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 11-01 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for COPD. In March 2012, the Veteran testified before the Board at a hearing held at the RO. 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 Additional development is necessary prior to further disposition of the claim. First, the Veteran submitted a letter from the Social Security Administration (SSA) awarding disability benefits. However, a request for all records kept by the SSA has not been made. Despite that one rating decision noted review of SSA records, there is no indication that these records have been obtained from SSA or are located in the file or Virtual VA file. Therefore, on remand, any determination pertinent to the Veteran's award of SSA benefits, as well as any medical records relied upon concerning that award, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA); see also Woods v. Gober, 14 Vet. App. 214 (2000) (VA is required to obtain SSA records in the context of an earlier effective date claim). The Veteran contends that his current COPD was caused by exposure to asbestos in service. He contends that while in service, he worked as a small boat operator instructor. As part of his duties, he was to maintain the engine, including the fuel lines, exhaust pipe, and engine compartment. He contends that all of the engine components were insulated with an asbestos sheeting material. At his hearing before the Board, the Veteran stated that about a decade ago, he had worked on a project in a hotel wherein he had to remove "cottage cheese" from the ceiling. However, he had had breathing problems dating back to the 1970s, or when he was in service. Service treatment records do not demonstrate respiratory complaints or treatment. Post-service treatment records reflect an ongoing diagnosis of chronic COPD. In July 2009, it was noted that he was an ex-heavy smoker. He was considered to be advanced COPD oxygen dependant. In this case, the Veteran is competent to state that he has had had upper respiratory symptoms, including loud, troubled breathing, since service. He is also competent to describe the insulated components onboard the motor boats that he worked on in service. Thus, in light of this evidence and testimony, a VA examination should be obtained to determine whether the Veteran's COPD was caused or aggravated by his service, to include asbestos exposure. Accordingly, the case is REMANDED for the following action: 1. Any determination pertinent to the Veteran's award of SSA benefits, as well as any medical records relied upon concerning that award, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran. 2. After completion of the foregoing, schedule the Veteran for a VA examination to address whether the Veteran's respiratory disorder is related to his active service, including as a result of exposure to asbestos. The examiner should indicate in the report that the claims file was reviewed. In addition to the service treatment records, the examiner should consider the Veteran's statements regarding his symptoms in service and his statements of continuous breathing problems after service: a) The examiner should state whether a diagnosis of asbestos-related lung disease is warranted. In determining whether the Veteran's respiratory disorder is related to his active service, including alleged exposure to asbestos, the examiner should discuss the Veteran's reported symptoms of trouble breathing since service and his report of handling engine components insulated with an asbestos sheeting material. If the opinion is negative, the examiner should explain why the current findings are not compatible with a history of exposure to asbestos. b) If the Veteran's respiratory disorder is not related to asbestos exposure in service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current respiratory disability, including COPD, is otherwise related to his active service. 3. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response, then return the case to the Board. The appellant 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). _________________________________________________ M. E. LARKIN 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).