Citation Nr: 1312187 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 08-33 294 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a lung disorder, claimed as asbestosis and secondary to asbestos exposure. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney at Law WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran's claims file is currently under the jurisdiction of the RO in Jackson, Mississippi. The Veteran was provided hearings before a Decision Review Officer (DRO) and the Board in January 2009 and September 2010, respectively. In February 2011, the Board denied, among other issues, the reopening of a claim of entitlement to service connection for asbestosis. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). Although the Court affirmed the Board's decision on two issues in its June 2012 memorandum decision, it set aside the Board's denial of the reopening of a claim of entitlement to service connection for asbestosis and remanded the claim for the Board to address a May 2004 VA treatment note. In the April 2004 rating decision, the Oakland RO denied a claim of entitlement to service connection for asbestosis. That RO notified the Veteran of the denial later that month. In October 2004, within one year of notice of the April 2004 denial, VA obtained additional VA treatment records, to include the May 2004 VA treatment note. In any event, this treatment record was constructively in possession of VA within one year of notice of the April 2004 denial. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim). Pursuant to 38 C.F.R. § 3.156(b) (2012), the Board must consider whether the May 2004 VA treatment record is new and material evidence received prior to the expiration of the appeal period for the April 2004 rating decision. In the April 2004 rating decision, the Oakland RO denied the claim of entitlement to service connection for asbestosis on the basis of no current disability. The evidence of record at the time of the denial included a March 2003 private report of chest x-rays containing an impression of pleural and parenchymal abnormalities consistent with pulmonary asbestosis. The May 2004 VA treatment record reflects the Veteran's reporting of a prior medical history of asbestosis. Lay evidence can be competent and sufficient to establish a diagnosis of a disorder when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Although the reporting by the Veteran in the May 2004 VA treatment record was lay history given by him, this reporting can be competent and sufficient to establish a diagnosis of a disorder when, in this case, he was reporting a contemporaneous diagnosis made by the private doctor who prepared the March 2003 chest x-rays report. The May 2004 VA treatment record, by itself, or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for asbestosis, and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). This is particularly so given the low threshold for reopening a claim set forth by the Court in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the evidence was received prior to the expiration of the appeal period for the April 2004 rating decision, the evidence will be considered as having been filed in connection with the claim that was denied in the 2004 rating decision. See 38 C.F.R. § 3.156(b). Therefore, after reassessing the case and taking into account the Court's June 2012 memorandum decision, the Board determines that the April 2004 rating decision is not final as to the denial of service connection for asbestosis and in fact remains pending. The Board must review the claim on a de novo basis instead of on the basis of new and material evidence. A March 2004 VA examination report shows a diagnosis of mild obstructive lung disease. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue is as stated on the title page. This is so because the issue is characterized as a broader claim. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND In a November 2012 statement, the Veteran's representative requested a Travel Board hearing to present additional evidence. Given that the Veteran has changed representatives since his Board hearing in September 2010, the Board is granting his request for a new hearing. See 38 C.F.R. § 20.704 (2012). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for the next available Travel Board hearing date. Notify the Veteran of the date, time and place of such a hearing by letter mailed to his current address of record, with a copy to his representative. 2. If and only if the Veteran fails to appear for the Travel Board hearing, take any appropriate development with regard to his claim and then readjudicate the claim. If the benefit is not granted, furnish the Veteran with a supplemental statement of the case, with a copy to his representative, and afford them an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 or by the Court 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). _________________________________________________ RYAN T. KESSEL Acting 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 Court. 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).