Citation Nr: 1317444	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  12-08 576	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for a disorder of the feet and/or legs, including tinea pedis (athlete's foot).

2.  Entitlement to service connection for a lung disorder, including as a result of exposure to asbestos.

3.  Entitlement to service connection for a heart disorder.

4.  Entitlement to service connection for a dental disorder for compensation purposes (so not just for purposes of treatment).


REPRESENTATION

Appellant represented by:	The American Legion



WITNESS AT HEARING ON APPEAL

The Appellant-Veteran


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from March 1959 to March 1961.

This appeal to the Board of Veterans' Appeals (Board) is from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2013, in support of his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (i.e., at a Travel Board hearing).  A transcript of that hearing has been associated with his electronic ("Virtual VA") file.

In a preceding June 2011 statement, the Veteran reported that he had asked some of his VA doctors about complaints that he had in terms of whether they could be related to amalgam/mercury fillings he received while in the military.  He listed these complaints as gastrointestinal problems, sleep disturbances, concentration problems, memory disturbances, lack of initiative, restlessness, and bleeding gums.  During his February 2013 hearing, he testified that he received amalgam dental fillings during service that were high in mercury content.  He asserted the fillings therefore can affect other things in the body, including causing rashes.  He testified that he felt he still had a problem resulting from those fillings in service because he still had two teeth with amalgam fillings and he believed the fillings were causing problems with a skin rash.

His claimed bleeding gums will be considered in the adjudication of his claim for service connection for a dental disorder, for compensation purposes.  However, his June 2011 statement and February 2013 hearing testimony additionally raise claims for service connection for a gastrointestinal disorder, sleep disturbances, concentration problems, memory disturbances, lack of initiative, restlessness, and a rash, all claimed to be the result of the fillings he received during his service.  These additional claims, although raised by the record, have not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ).  The Board therefore does not presently have jurisdiction over these other claims so is referring them to the RO as the AOJ for appropriate development and consideration.  See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).

Additionally, in his April 2012 Substantive Appeal to the Board, on VA Form 9, the Veteran asserted that, during service, he slipped while going up some steps and pulled his back.  He described pain in his back and down his leg and into his feet.  This statement appears to raise a claim of entitlement to service connection for a back disorder as a residual of that purported injury.  The RO sent him a letter in September 2012 in response to his April 2012 statement that he had pulled or wrenched his back while in service.  The RO stated that, if it was his intention to file a claim for service connection for a back condition, he should provide this information on the enclosed VA Form 21-4138, Statement in Support of Claim.  The RO advised him that it could not take further action on this claim unless and until this clarification was received.  He did not subsequently provide additional information regarding this questionable claim.  However, the Board finds that his April 2012 VA Form 9 is sufficient to raise a claim for service connection for a back disorder.  But this claim, although also raised by the record, has not been initially adjudicated by the RO as the AOJ.  The Board therefore does not presently have jurisdiction over this claim, either, so it, too, is referred to the RO for appropriate action.  See Godfrey, supra.


Of note, the claim for service connection for a dental disorder that is presently before the Board has been developed and adjudicated as a claim for service connection for a dental disorder for compensation purposes.  But the U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment.  See Mays v. Brown, 5 Vet. App. 302 (1993).

In dental claims, the RO adjudicates the claim for service connection and the VA Medical Center (VAMC) adjudicates the claim for outpatient treatment.  Effective February 29, 2012, VA amended its adjudication regulations regarding service connection of dental conditions for treatment purposes under 38 C.F.R. § 3.381.  See 77 Fed. Reg. 4470 (Jan. 30, 2012) (codified at 38 C.F.R. § 3.381(a) (2012)).  This section identifies some of the circumstances under which dental conditions that may not qualify as disabilities for purposes of VA disability compensation nevertheless may be service connected for purposes of VA dental treatment under 38 U.S.C. § 1712 and 38 C.F.R. § 17.161.  The amendments clarify existing regulatory provisions and reflect the respective responsibilities of the Veterans Health Administration (VHA) and the Veterans Benefits Administration (VBA) in making determinations concerning eligibility for dental treatment.

The revised version of 38 C.F.R. § 3.381 provides that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines a Veteran meets the basic eligibility requirements of § 17.161 of this chapter and requests VBA make a determination as to certain questions, including, but not limited to:  (1) former prisoner of war status; (2) whether the Veteran has a compensable or noncompensable service-connected dental condition or disability; (3) whether the dental condition or disability is a result of combat wounds; (4) whether the dental condition or disability is a result of service trauma; or (5) whether the Veteran is totally disabled due to a service-connected disability.  38 C.F.R. § 3.381 (2012).


In an October 2009 letter, the RO advised the Veteran that it had forwarded copies of all his submitted records to the Outpatient Dental Eligibility Clinic at the VAMC, which would be making the decision regarding his eligibility for dental outpatient treatment.  In February 2010, the RO called him to clarify his dental claim.  At that time he stated that he had tried to get treatment at the VAMC but was told that he had to be 100-percent disabled.  A handwritten note reflects that a copy of his claim was forwarded to the Dental Eligibility office at the VAMC.  Despite these actions, the record presently before the Board does not include a determination from the VAMC regarding his eligibility for VA outpatient dental treatment.  The claim for VA outpatient dental treatment therefore is referred to the VAMC as the AOJ for appropriate action.

Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

In this decision the Board is denying the claim for service connection for a dental disorder, that is, for compensation purposes.  The remaining claims, however, instead are being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration.


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claim for service connection for a dental disorder has been accomplished.

2.  There is no suggestion the Veteran has a dental disorder for which service-connected compensation is payable; there is no indication he has a dental disorder as a result of dental trauma during his service.



CONCLUSION OF LAW

The Veteran does not have a compensable dental disorder due to disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and Virtual VA electronic folder (e-folder).  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in exhaustive detail each and every piece of evidence submitted by him or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as regarding his claim.  He must not assume the Board has overlooked any pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him).

The Board must assess the credibility and weight of all evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied.  Id.

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  These duties arise upon receipt of a complete or substantially complete application for benefits.

The Veteran filed his claim for service connection for dental and gum problems in October 2009 and, in response, was notified by the RO of the general provisions of the VCAA in correspondence dated in October 2009.  The letter advised him of the information and evidence necessary to substantiate the claim for service connection for dental and gum problems, notified him of VA's responsibilities in obtaining information to assist him in completing his claim, identified his duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding the VCAA.  Thereafter, the claim was reviewed and the February 2010 rating decision issued.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These VCAA notice requirements apply to all elements of a claim, including the "downstream" disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Notice as to these elements was provided in the October 2009 letter.

The Veteran resultantly has been made aware of the information and evidence necessary to substantiate this claim and provided opportunities to submit such evidence.  A review of his claims file and Virtual VA e-folder shows that VA also has made reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim.  His service treatment records, service personnel records, and post-service VA and private treatment records have been obtained and associated with his claims file for consideration.


He has reported receiving dental treatment from Dr. D.M. after service, but also has clarified this dentist is now deceased.  The Veteran said that information from this dentist perhaps still could be obtained from Metropolitan Life, Inc.  But both he and the RO attempted to obtain records from Metropolitan Life, Inc., unfortunately to no avail as no dental records were obtained.  Rather, Metropolitan Life responded to the RO's records request in August 2011 by stating that, according to their records, the Veteran had dental coverage from January 1988 through May 1996, but that they were only required to maintain records for seven years, and, therefore, they had no information to send.  No further attempts to obtain these private dental records accordingly are warranted.  38 C.F.R. § 3.159(c)(1).  

Additionally, a December 1999 private treatment record indicates the Veteran was applying for disability benefits from the Social Security Administration (SSA).  However, in his October 2009 claim for a VA nonservice-connected pension, he clarified that he had filed a claim for regular Social Security benefits.  And while he reported during private treatment in July 2010 that he had taken Social Security disability in 1997, there was no suggestion it was based on disability rather than, say, age and time and tenure.  Ordinarily, when VA is put on notice of the existence of SSA records, it must try and obtain them before proceeding with the appeal.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Lind v. Principi, 3 Vet. App. 493, 494 (1992).  But in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that VA's duty to assist was limited to obtaining relevant SSA records - which, according to 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim.  There is no such indication here that regular SSA records, as opposed to records specifically regarding SSA disability, would be pertinent to this claim, especially specifically in relation to this alleged dental disorder.  Accordingly, no further action in regards to obtaining records from SSA is necessary.  38 C.F.R. § 3.159(c)(2).


As will be discussed below, the remaining claims on appeal are being remanded, in part, to obtain outstanding VA treatment records.  In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court indicated VA adjudicators have constructive, if not actual, possession of VA records when put on notice of the existence of these records.  See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998).  Therefore, when VA adjudicators are on notice that additional VA records may exist concerning a claim, the records must be obtained before deciding the claim.  There is no indication, however, that any additional VA treatment records would include evidence of a dental disability for which VA compensation is payable.  Indeed, the Veteran himself reported in February 2010 that, while he had tried to get dental treatment at the VAMC, they had told him that he had to be 100-percent disabled before he could receive any such treatment, so presumably he has not.  In a more recent June 2011 statement, he indicated that VA had told him he could not have any dental work done because he was not service connected.  As there is no indication that any outstanding VA treatment records would include or concern dental treatment, these records would not be relevant to this claim being decided, so a remand to obtain additional VA treatment records prior to adjudicating this claim is unnecessary and unwarranted.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran, and the Court has held that such remands are to be avoided.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994) (like Soyini and its progeny, observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran).


The Veteran was not provided a VA compensation examination concerning this dental claim; however, the evidence of record does not warrant an examination because there is sufficient evidence already of record to decide this claim, so an examination is not needed.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and yet there is evidence of (1) a current disability or persistent or recurrent symptoms of a disability, 
(2) a relevant in-service event, injury, or disease, and (3) some indication the claimed disability may be associated with the established event, injury, or disease.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Here, though, there is no indication the Veteran had any dental trauma or other injury in service, nor is there any competent and credible indication he has a current dental disability for which VA compensation is payable.  Consequently, the Board concludes that VA is not required to provide him a VA examination concerning this claim.

Regarding his February 2013 hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer (DRO) or VLJ chairing a hearing to fulfill two duties:  (1) fully explain the issue(s) and (2) suggest the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position.  During the hearing the undersigned VLJ identified the issues on appeal and discussed the information necessary to substantiate a claim for service connection for a dental disorder.  The Veteran, however, denied sustaining any actual dental trauma during his service and acknowledged that he only instead had received amalgam fillings, albeit with what he considered to be an overly high level of mercury.  Although the presiding VLJ did not specifically seek to identify any pertinent evidence that was not then currently in the claims file, that was not necessary because the Veteran indicated the dentist who had treated him since service is now deceased, and as mentioned neither he nor VA has been able to obtain these treatment records from other sources such as Metropolitan Life, Inc.  

He does not assert, nor is there any evidence otherwise suggesting, that he has a current dental disorder for which VA compensation is payable.  Rather, he has repeatedly asserted that he is seeking service connection merely based on the fact that he received the amalgam fillings in service that were dangerously high in mercury content and that resultantly have required removal of teeth since his separation from service.  Accordingly, the Board finds that he is not prejudiced by the conducting of that February 2013 hearing.  Moreover, neither he nor his representative has alleged there were any deficiencies in the conducting of that hearing according to §  3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98. 

Significantly, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the Veteran had any additional information to submit.

Also based on the questioning during the hearing, and his responses, the Veteran has evidenced his actual knowledge of the type of information and evidence needed to substantiate this claim - even if he did not have this knowledge until the testimony elicited and generated during his hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim).

He has not identified any other, relevant, evidence that has not been requested or obtained and needs to be that is obtainable.  He has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim.


Factual Background and Analysis

As already alluded to, the Veteran is seeking compensation for a dental disorder.  He asserts that he received amalgam fillings in several teeth during service and that, because they were high in mercury content, these teeth later had to be extracted by his civilian dentist.

Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.

Service connection may be granted for a disease diagnosed after discharge from service when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

A three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability - meaning proof the Veteran has had the alleged disability at least at some point since the filing of his claim, even if now resolved; 
(2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the so-called "nexus" requirement).  Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). 

Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders.  For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation.  38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. §§ 3.381, 4.150, 17.161 (2012).

As already indicated, the claim for service connection for a dental disorder, for the alternative or additional purpose of obtaining VA outpatient treatment, has been referred to the VAMC for appropriate action, including adjudication.  This decision, then, is limited to considering entitlement to service connection for a dental disorder for compensation purposes.

Dental disabilities that may be awarded compensable disability ratings are set forth in 38 C.F.R. § 4.150.  These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease.  38 C.F.R. § 4.150, Diagnostic Codes 9900-9916.

The Veteran's service treatment records (STRs) reflect that his dental health was described as acceptable during his pre-induction examination in January 1959.  Dental records from once in service reflect that he received treatment for caries (cavities) in several teeth between June and September 1960, and that he appears to have had fillings placed in teeth numbers 2, 3, 4, 5, 14, 15, 18, and 31.  During his military separation examination in January 1961, his dental health was described as Class 2.  His military service ended in March 1961.

A post-service private treatment record from July 1988 indicates he had no then current problems with his teeth.  Whereas an even more recent July 2000 VA treatment record reflects that he wore dentures.

In a November 2009 statement, he reported that he had had extensive grinding and tooth filling during service and that the civilian dentist who he saw after service diagnosed gum disease and resultantly had to pull eight teeth and make top and bottom bridges.  He said his gums hurt, but that he unfortunately did not have dental coverage, presumably allowing for the additional treatment he needed.

The RO called him in February 2010 to clarify his dental claim.  He indicated in response that he did not sustain any trauma or other relevant injury in service, per se, which had caused or could account for his current dental problems.  But he said they had to practically rebuild his mouth in service, presumably because of the amount of dental problems and issues he had.

In a June 2011 statement, he reported that he had been unable to obtain treatment records from the dentist who had treated him after service, as he was deceased.  However, he reiterated that dentist had pulled eight teeth and had made him upper and lower bridges.  He also alleged that dentist had told him that the fillings that were put in his teeth in service were amalgam/mercury fillings, which were dangerous.  He indicated that he still had these fillings in two of his teeth.  He also asserted that he had several complaints that he believed could be related to the amalgam/mercury fillings he had received during service, including bleeding gums.

During his February 2013 hearing, he reiterated that he had a lot of dental work done during service.  He asserted that he had eight teeth filled during service and, because the fillings had amalgam, which is high in mercury, he had to have these teeth later pulled by a civilian dentist.  He clarified that he had no other dental work in service other than these fillings.  

Based on the relevant medical and other evidence, both from during and since his service, the Board finds that he does not have a compensable dental disorder.

He has asserted that he had to have several teeth removed after service because the fillings he received during service were deemed dangerous by his dentist.  However, there simply is no competent and credible evidence of loss of teeth due to loss of substance of the body of the maxilla or mandible due to bone loss through trauma or disease such as osteomyelitis.  Rather, even he himself has denied sustaining any actual trauma to his teeth during his service, clarifying, instead, that the reason for the post-service removal of his teeth was because his dentist deemed his fillings in service to have been dangerously high in mercury content.  While his STRs do document that he received several fillings in service, having teeth filled or even extracted during service is not tantamount to dental trauma.  VAOPGCPREC 5-97 (Jan. 22, 1997; revised Feb. 25, 1997), 62 Fed. Reg. 15,566 (1997).

While he also reported in his November 2009 statement that he was treated for gum disease following service, periodontal (gum) disease may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment, so not also for compensation.  See 38 C.F.R. § 3.381.

The Board has considered his reports of bleeding and painful gums.  He is competent to describe these symptoms, especially seeing as though this is based on his firsthand knowledge of this factual matter.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).  The Board also finds his lay testimony concerning this credible, so ultimately probative; however, the fact remains that bleeding and painful gums do not constitute dental disorders for which compensation is payable, as they are not among the disabilities listed in 38 C.F.R. § 4.150.

Additionally, there is no evidence indicating, nor does the Veteran assert, that he has any of the conditions listed in 38 C.F.R. § 4.150 for which compensation is payable.

Consequently, the Board concludes there is no basis for granting service-connected VA disability compensation for any current dental disorder, as there simply is not the required evidence indicating the Veteran has a dental disorder falling under the categories of compensable dental conditions set forth in 38 C.F.R. § 4.150.

Because, for these reasons and bases, the preponderance of the evidence is against his claim, there is no reasonable doubt to resolve in his favor, and his claim resultantly must be denied.  38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

The claim of entitlement to service connection for a dental disorder, for compensation purposes, is denied.


REMAND

The Board sincerely regrets the additional delay that inevitably will result from this remand of the remaining claims that also are on appeal, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration concerning these other claims.

As an initial matter, the record reflects there is outstanding medical evidence that is potentially pertinent to these remaining claims on appeal.

In this regard, in a February 2012 statement, the Veteran reported that all of his treatment had been at the Little Rock VAMC, where he had been treated from 1998 through 2012.  During his February 2013 hearing, he testified that he had received VA treatment for his feet the previous October, so in 2012.  Regarding his lungs, he reported the VA recently had done some X-rays that still revealed traces of asbestos in his lungs.

While treatment records from the Central Arkansas Veterans Healthcare System, including the Little Rock VAMC, dated in July 2000, February 2001, and from April 2007 to January 2010 are currently of record, the February 2012 statement and February 2013 hearing testimony indicate that more recent VA treatment records are available.

Additionally, while the claims file includes VA treatment records dated in July 2000 and February 2001, the file indicates the Veteran received VA treatment on other dates prior to April 2007.  In this regard, a January 2010 VA treatment note lists his then active problems as including pruritis, diagnosed in January 2007; postsurgical aortocoronary bypass, diagnosed in May 2003; cardiac dysrhythmias, not elsewhere classified, diagnosed in September 2002; hyperlipidemia, not elsewhere classified/not otherwise specified, and hypertension, not otherwise specified, diagnosed in November 2000; and angina pectoris, not elsewhere classified/not otherwise specified, chronic obstructive pulmonary disease (COPD), and coronary artery disease, diagnosed in August 2000.  This problem list reflects that he received VA treatment between July 2000 and April 2007 that is pertinent to his remaining claims on appeal.

As any records of VA treatment dated between July 2000 and April 2007 and since January 2010 are potentially pertinent to these remaining claims on appeal and are within the control of VA since generated and maintained within VA's healthcare system, they must be obtained and associated with the claims file for consideration.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

The Veteran also has reported receiving VA treatment from 1998 to the present.  However, the RO attempted to obtain VA treatment records dated from 1998 to 2000 but was advised there were no records dated prior to July 2000.  The RO made a formal finding of unavailability of VA treatment records dated from January 1998 to July 2000 in January 2012, and the Veteran was advised of the unavailability of these records via a February 2012 letter.  Accordingly, no further attempts to obtain VA treatment records dated prior to July 2000 are necessary.  See 38 C.F.R. § 3.159(c)(2).  

VA also has a duty to obtain relevant records of treatment provided by private physicians.  Massey v. Brown, 7 Vet. App. 204 (1994).

The Veteran also reported during his February 2013 hearing that he had had heart surgery in May 2003 and again in May 2005.  An April 2007 VA treatment record reflects those surgeries, instead, actually occurred in April 2003 and May 2006.  A July 2010 record from Dr. L.C. includes the Veteran's history of quadruple bypass surgery in 2003, with stent placement in 2006, and stent placement in the right leg in "may [sic] this year" (so May 2010).  Despite these indications, no records regarding heart surgery in 2003 or more recently in 2006 are currently in the file.  So, on remand, the AMC/RO should ask the Veteran to clarify where those surgeries were performed and should attempt to obtain the medical records pertaining to those procedures.  

The Veteran was asked during his February 2013 hearing whether he had told his physicians that he had sustained frostbite during service and whether they had told him in response that the reason for his current neuropathy affecting his lower extremities was because of frostbite injury during his service.  He responded, "[w]ell that's what he said it lead to", presumably referring to his doctor.  The Veteran testified that he had submitted a statement from his private physician, Dr. L.C., who opined that the Veteran's neuropathy was a result of frostbite; however, it did not appear the statement had been considered.  The record includes a July 2010 treatment record from Dr. L.C., noting the Veteran was asking for a letter to connect the pain he was having to his time in service.  But there is no letter or statement from Dr. L.C. regarding the etiology of the Veteran's current leg/foot condition.  And the connection between what a physician said and a layman's account of what the physician purportedly said, filtered as it is through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent and credible medical evidence in support of a claim for service connection.  See Robinette  v. Brown, 8 Vet. App. 69, 77 (1995).

Thus, on remand, the AMC/RO should attempt to obtain any outstanding treatment records or statements from this physician, including any statements regarding the etiology of the Veteran's neuropathy.  This confirmation is especially needed since the Veteran indicated during his February 2013 hearing that he is also "borderline" diabetic, suggesting his neuropathy instead may be a complication of that, either in addition to or in lieu of his alleged frostbite injury in service.


VA compensation examinations also are needed to properly adjudicate these remaining claims on appeal.

VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one.  McLendon, 20 Vet. App. at 83.  See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (when determining whether a VA examination and medical nexus opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability).

Regarding the claim for service connection for a disorder of the feet and/or legs, including tinea pedis (athlete's foot), the Veteran's STRs reflect that, in his January 1959 Pre-Induction Report of Medical History, he cited foot trouble.  This was elaborated on by the evaluating physician as athlete's foot.  During the objective clinical portion of that examination that same day, the feet were described as abnormal, although athlete's foot in particular was not noted.  Rather, the diagnosis was pes planus (flat feet).  A March 1959 note, from the date the Veteran actually entered into service, indicates that no additional defects were discovered at that time, and he was determined to be fit for military service.  In August 1959, he received treatment for athlete's foot.


Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  See 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b).  In July 2003, VA's General Counsel issued a precedent opinion holding that, to rebut the presumption of soundness in 38 U.S.C.A. § 1111 when a condition is not noted upon entering service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that it was not aggravated during or by service beyond its natural progression.  See VAOPGCPREC 3-2003 (July 16, 2003).  The claimant is not required to show the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  Id.  See also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004) and Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).

"Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.")  It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable."  Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). 

If on the other hand a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability.  And in that circumstance, 38 U.S.C.A. § 1153 applies and the burden falls on him to establish aggravation.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).


Generally, a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation.  See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  So mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are insufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened.  Hunt at 297.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); and Green v. Derwinski, 1 Vet. App. 320, 323 (1991).

Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service.  Only if the Veteran manages to show a chronic worsening of his pre-existing condition during his service would the presumption of aggravation apply and, in turn, require VA to then show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression.  The presumption of aggravation applies only when pre-service disability increases in severity during service.  Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). 

Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). 


Independent medical evidence generally is needed to support a finding that a 
pre-existing disorder increased in severity during service beyond its natural progression.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).  The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation.  Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991).

Here, the Veteran described athlete's foot in his Report of Medical History prior to induction; however, this condition was not noted on examination at that time; rather, only pes planus was noted.  He subsequently received treatment for athlete's foot during his service.  During his February 2013 hearing, he acknowledged having athlete's foot before service, but he nonetheless believes that it was aggravated during or as a result of sustaining frostbite twice during his service.  He described working in the field in snow and ice with wet feet in Germany.  He reported that the temperature probably got down to the twenties.  He added that he did not go to the medic because he did not think his condition was all that serious at the time, although he testified that his feet would begin to peel after coming in from the field.  He stated that he simply endured.  He also reported that he currently has blisters on his feet at times.

In a November 2009 statement, he reported experiencing foot and leg pain in service.  In a February 2010 statement, he asserted that he had a continuity of foot and leg pain since service.  An October 2009 letter from his podiatrist, Dr. L.C., indicated the Veteran had been treated for heel spur syndrome and foot and leg pain about 20 years earlier, meaning in 1989 or thereabouts, for which he had been dispensed orthotics.  Dr. L.C. also indicated the Veteran remained symptom-free for over 10 years following the issuance of orthotics.  During treatment with Dr. L.C. in July 2010 the Veteran described the onset of his foot pain as occurring 30 years earlier, so dating back to 1980 or thereabouts.  The October 2009 letter and July 2010 treatment record, since in this respect inconsistent in the reporting of this history, call into question the Veteran's claim of continuing foot and leg pain since service.  Moreover, according to the recent holding in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), only if it is shown his alleged foot and leg pain is attributable to a condition identified in 38 C.F.R. § 3.309(a) as "chronic", per se, can he in turn establish the required nexus or correlation between his current disability and service by alternatively showing continuity of symptomatology since his service.

In any event, VA treatment records document complaints of feet and leg pain.  These VA treatment records appear to associate the complaints of pain in the lower extremities with lumbar radiculopathy.  During his July 2010 evaluation by Dr. L.C., the Veteran complained of bilateral foot, leg, and back pain.  He reported numbness in his toes and burning up the sides of his feet.  He reported an in-service injury when he fell on a ship in 1961, hitting his knee cap and twisting his back.  He asserted that his foot pain was caused by that injury, adding that his back began to bother him after he got out of service.  He also asserted that his current pain was related to frostbite he suffered in 1959 and 1960, during his service.  The impression was idiopathic neuropathy and rheumatoid arthritis.  Dr. L.C. commented that the Veteran was experiencing symptoms of arthritis back pain and neuropathy.

In his April 2012 VA Form 9, the Veteran described an in-service injury in which he slipped and pulled his back, with subsequent pain in his back and down his leg to his feet.  

During his February 2013 hearing, he reported that he had neuropathy in his feet, which he attributed to frostbite in service.  He further described pain in his legs.  He as mentioned also testified that he had been told by his physician that his neuropathy had resulted from frostbite.  But he added, as well, that he is "borderline" diabetic too, if not already, although he had not been told that he had diabetic peripheral neuropathy as a complication.

A VA examination therefore is needed for a medical nexus opinion regarding the claimed disorder of the feet and/or legs, including the neuropathy and concerning the athlete's foot.  See McLendon, 20 Vet. App. at 83.

In rendering his or her opinion, the examiner should consider any pertinent post-service injuries.  In this regard, a November 1966 private treatment record reflects that the Veteran was admitted to the hospital following a lower back injury at work.  His complaints during that hospitalization included pain in the lower back and down the left lower extremity.  

Regarding his claim for service connection for a lung disorder, he asserts that he has a lung disorder because of exposure to asbestos during his military service.  In a November 2009 statement he reported that, during service, he worked cleaning and scraping equipment and vehicles of paint and repainting without a mask, resulting in inhalation of paint.  He also described working in a boiler room firing a coal-fired furnace.  He stated that he inhaled lots of coal dust in that capacity.  He added that he also drove a truck hauling coal.  He further reported using different chemicals to wash up tools and equipment in the motor pool.  He also however acknowledged smoking during service, though he said he had stopped during the 1970s, as well as post-service occupational exposure to asbestos in his work in construction.

His STRs reflect that he had a chest X-ray in May 1959.  The provisional diagnosis was pleuritic pain on the left.  That X-ray revealed the trachea, heart shadow, hemidiaphragms and lung fields were within normal limits; however, there was a fairly well-formed cervical rib on the right.  A treatment note from that same date reveals only an impression of "no disease" and indicates he was to have an X-ray.  On separation examination in January 1961, clinical evaluation of his lungs and chest, as well as chest X-ray, were normal.

Recent VA treatment records reflect that he has COPD.  During treatment in January 2010 his physician commented that the Veteran's dyspnea and COPD was probably due to asbestosis.

During his February 2013 hearing, the Veteran testified that, while in service, he worked in the motor pool and his work included sanding, chipping, and spray painting without any masks or protection on.  He asserted that he believed he could have been exposed to asbestos performing those duties.  He also stated that all the paints to which he was exposed during service had lead in them and he believed that he had breathed in enough dust from sanding the paint to cause his current lung condition.  He added that, after service, he had worked in construction, including work with sheetrock and insulation.  He also reported that he had smoked for about 20 years, up until 1975, but had not smoked since quitting in 1975.

The record documents that he has been determined to have post-service occupational exposure to asbestos.  For example, a June 2000 letter from a private physician, Dr. R.A.H., confirms the Veteran's work history revealed occupational exposure to various asbestos-containing products from 1967 to 1996 while working as a railroad worker, mastics and cement products worker, asbestos gasket and valve packer, plasterer, fireproofer, building maintenance worker, painter, drywaller, laborer, and carpenter.  The physician commented that his reading of the Veteran's April 2000 chest X-ray revealed bilateral interstitial fibrosis consistent with asbestosis.  More recently, an October 2006 letter from another private physician, Dr. A.J.S., describes the Veteran's regular exposure to asbestos while working in building and construction between 1967 and 1996.  This physician noted that the Veteran was also a railroad maintenance worker between 1962 and 1963 and worked as a homebuilder and carpenter between 1967 and 1986.  Dr. A.J.S. reviewed an August 2006 chest X-ray and opined that, given the Veteran's history of significant exposures to asbestos in the workplace, an appropriate latency, and the radiographic findings, he believed with a reasonable degree of medical certainty that the Veteran had interstitial fibrosis caused by pulmonary asbestosis as well as bilateral asbestos-related pleural disease.  The physician opined that this diagnosis was causally related to the Veteran's workplace exposures to asbestos.

The records also document the Veteran's smoking history, as he reported during private treatment in March 2004 that he had stopped smoking in 1976, but had smoked a pack per day for 15 years prior to that time.


There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases.  However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims.  See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988).  The information and instructions contained in the DVB Circular since have been included in VA's Adjudication Procedure Manual, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29 (July 20, 2009).  Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims.  See VAOPGCPREC 4-00.  VA must analyze the Veteran's claim of entitlement to service connection for asbestos-related disease under these administrative protocols.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993).

The guidelines specify that asbestos fibers may produce fibrosis, including interstitial pulmonary fibrosis or asbestosis, tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate).  M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005).  The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease.  Id.  Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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.  Id.  With these claims, VA must determine whether military records demonstrate evidence of asbestos exposure during service and develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above.  Id.



In light of the evidence of record, including the Veteran's assertions of in-service exposure to asbestos, lead paint, and chemicals, the documented complaint of 
left-sided pleuritic pain during service, and the evidence indicating he has a current respiratory disability, but also suggestion of exposure to asbestos in various capacities since service in his civilian employment, the Board finds that a VA examination for a medical nexus opinion also is needed regarding his claimed lung disorder.  See McLendon, 20 Vet. App. at 83.

In rendering this requested opinion, the examiner should consider the Veteran's reports of in-service exposures to asbestos, lead paint, and chemicals, as well as the evidence regarding post-service occupational exposure to asbestos in the several capacities mentioned.  The examiner should also consider the Veteran's history of smoking, though it reportedly ended during the 1970s.

Regarding the claim for service connection for a heart disorder, the record reflects that the Veteran has current heart conditions.  A January 2010 VA treatment record indicates he had hypertension and cardiac dysrhythmia.  Several heart disorders were listed on his active problem list that month, including post-surgical aortocoronary bypass; cardiac dysrhythmias, not elsewhere classified; hypertension, not otherwise specified; and coronary artery disease (CAD).  He testified during his February 2013 hearing that he had been told he also had congestive heart failure (CHF).  Despite the fact that, during his February 2013 hearing, he testified that he was not treated for any type of heart-related issues in service, including chest pain, the May 1959 chest X-ray report already mentioned reflects that he was examined in response to a complaint of pleuritic pain on the left.  In light of this record indicating chest pain during his service of undetermined etiology, and because the claim must be remanded to obtain outstanding treatment records, the Board finds that a VA examination and medical nexus opinion also would be helpful in resolving this claim.  See 38 U.S.C.A. § 5103A(d)(2).


One additional point also worth reiterating in regards to the Veteran's claims for service connection is that a recent decision of the Federal Circuit clarified that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013).  While neuropathy (as an organic disease of the nervous system) and cardiovascular-renal disease, including hypertension, are amongst the conditions listed in § 3.309(a) as chronic, per se, so subject to this continuity of symptomatology pleading and proof exception, athlete's foot and COPD are not conditions identified in § 3.309(a) as chronic, per se, so not the type of conditions subject to this continuity of symptomatology alternative.

Accordingly, these claims are REMANDED for the following additional development and consideration:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his legs or feet or for a respiratory or heart disorder.  After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder.  

A specific request should be made for:  (1) any outstanding treatment records from the Central Arkansas Veterans Healthcare System, to include the Little Rock VAMC, dated between July 2000 and April 2007 and since January 2010 and (2) any outstanding treatment records or statements from Dr. L.C. (identified above), to include any statements regarding the etiology of the Veteran's neuropathy, as well as (3) any additional records identified by the Veteran.

The AMC/RO should ask the Veteran to clarify where he underwent heart surgeries in 2003, 2006, and 2010, or more recently, and should attempt to obtain medical records pertaining to these procedures.  

The amount of efforts needed to be expended in obtaining records identified depends on who has custody of them.  If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) controls if they are.

If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented.  38 C.F.R. § 3.159(e)(1).

2.  Afford the Veteran a VA examination to determine the etiology of any disorder of the legs and/or feet present since October 2009 (when the Veteran filed his claim for service connection), to include neuropathy and athlete's foot.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the relevant history.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should identify all disorders of the legs and/or feet present since October 2009, to include neuropathy and athlete's foot.  In regards to EACH diagnosed disorder, the examiner should provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) the disorder was incurred or aggravated as a result of the Veteran's active military service.

In regard to any diagnosed athlete's foot, the examiner should provide an opinion as to whether such disorder clearly and unmistakably preexisted the Veteran's period of military service.  If so, the examiner should provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's athlete's foot was not aggravated by service.  

If the examiner concludes that any diagnosed athlete's foot did not preexist military service, he or she should opine as to the likelihood (very likely, as likely as not, or unlikely) that such disorder had its onset during service; or, was caused by any incident that occurred during service.

In making this necessary determination, this examiner must consider the Veteran's report of experiencing foot and leg pain in service (as reflected in a November 2009 statement), his report of foot and leg pain since service (as reflected in a February 2010 statement), his report of an in-service injury when he hurt his back (as documented in the July 2010 private treatment record and the April 2012 VA Form 9), and his reports of frostbite during service (as discussed in the July 2010 private treatment record and during the February 2013 hearing).  

The examiner should also consider any pertinent post-service injuries.  Of note, a November 1966 private treatment record reflects that the Veteran was admitted to the hospital following a lower back injury at work.  His complaints during that hospitalization included pain in the lower back and down the left lower extremity.  

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

3.  Afford the Veteran a VA examination to determine the etiology of any lung disorder present since October 2009 (when the Veteran filed his claim for service connection).  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the relevant history.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should identify any lung disorder present at any time since October 2009, to include COPD.  In regards to EACH diagnosed disorder, the examiner should provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) the disorder was incurred or aggravated as a result of the Veteran's active military service, to include as a result of in-service exposure to asbestos, lead paint, and chemicals.

In rendering the requested opinion, the examiner should consider the May 1959 X-ray report indicating that the Veteran was examined for pleuritic pain on the left.  The examiner should also consider the evidence regarding the Veteran's post-service occupational exposure to asbestos as well as his smoking history, as discussed above.  

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

4.  Afford the Veteran a VA examination to determine the etiology of any heart disorder present since October 2009 (when the Veteran filed his claim for service connection).  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the relevant history.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should identify all heart disorders present since October 2009.  In regards to EACH diagnosed disorder, the examiner should provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) the disorder was incurred or aggravated as a result of the Veteran's active military service.

In rendering the requested opinion, the examiner should consider the May 1959 X-ray report indicating that the Veteran was examined for pleuritic pain on the left.  

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

5.  Conduct any other appropriate examination and development deemed necessary.  Then readjudicate these claims in light of this and all other additional evidence.  If any claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs