Citation Nr: 1319340 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-28 079A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a lung disability, including as due to asbestos exposure. 2. Entitlement to service connection for a bilateral knee disability, including as due to asbestos exposure. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January 2003 to January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied, in pertinent part, the Veteran's claims of service connection for a lung disability and for a bilateral knee disability, each including as due to asbestos exposure. In August 2011, the Veteran's claims file was transferred to the jurisdiction of the RO in Portland, Oregon, because she had moved to that jurisdiction. Accordingly, the RO in Portland, Oregon, retains jurisdiction in this appeal. 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 her part. REMAND The Veteran contends that she incurred disabilities of the lungs and knees during active service. She alternatively contends that in-service asbestos exposure caused or contributed to her current disabilities of the lungs and the knees. With respect to the Veteran's service connection claim for a bilateral knee disability, a review of the record evidence shows that, following VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) in January 2013, the VA examiner opined that it was less likely than not that the Veteran's bilateral knee disability was caused or aggravated by her service-connected lumbosacral strain. Unfortunately, it appears that the January 2013 VA examiner was not asked to provide and did not provide an opinion concerning the contended causal relationship between the Veteran's bilateral knee disability and active service on a direct service connection basis. See 38 C.F.R. §§ 3.303, 3.304. This examiner also did not provide an opinion concerning the contended causal relationship between the Veteran's bilateral knee disability and her alleged in-service asbestos exposure. Thus, on remand, the January 2013 VA knee and leg conditions DBQ should be returned to the VA examiner who completed it for an addendum which addresses these etiological questions. With respect to the Veteran's service connection claim for a lung disability, including as due to asbestos exposure, a review of the record evidence shows that, following VA examination in August 2008, the Veteran was diagnosed as having restrictive lung disease and no asbestosis on chest x-ray (reported past asbestos exposure). Unfortunately, the August 2008 VA examiner did not provide any opinion concerning the etiology of the Veteran's lung disability. The Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Given the foregoing, the Board finds that the August 2008 VA examination is inadequate for purposes of adjudicating the Veteran's service connection claim for a lung disability, including as due to asbestos exposure. Having set aside the August 2008 VA examination as inadequate for adjudication purposes, the Board finds that, on remand, the Veteran should be scheduled for another VA examination to determine the nature and etiology of her lung disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or her service representative and ask her to identify all VA and non-VA clinicians who have treated her for a lung disability or a bilateral knee disability since her service separation. Advise the Veteran not to resubmit any records already provided to VA. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate examination to determine the nature and etiology of her lung disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify any lung disability currently experienced by the Veteran. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of her claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a lung disability, if diagnosed, is related to active service or any incident of service, to include asbestos exposure. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran contends that she was exposed to asbestos during service and such exposure caused or contributed to her current lung disability. 3. Schedule the Veteran for appropriate examination to determine the nature and etiology of her bilateral knee disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify any bilateral knee disability currently experienced by the Veteran. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of her claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral knee disability, if diagnosed, is related to active service or any incident of service, to include asbestos exposure. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran contends that she was exposed to asbestos during service and such exposure caused or contributed to her current bilateral knee disability. 4. The Veteran should be given adequate notice of the requested examinations which includes advising her of the consequences of her failure to report to the examinations. If she fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 5. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and her service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ WAYNE M. BRAEUER 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).