Citation Nr: 1319937 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 08-29 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a respiratory disability, manifested by shortness of breath, to include tuberculosis (TB) and an asbestos-related disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to July 1967. This appeal to the Board of Veterans' Appeals (Board) arises from a June 2007 rating decision of the Winston-Salem Regional Office (RO) of the Department of Veterans' Affairs (VA). The case was certified to the Board by the Roanoke, Virginia RO. In June 2012, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In a November 2012 decision the Court granted a joint motion for remand. The record raise the issue of entitlement to service connection for colon cancer, to include due to claimed exposure to Agent Orange. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. 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 The parties to the joint motion for remand agreed that the Veteran is entitled to a VA examination to determine the etiology of any diagnosed respiratory disability, to include tuberculosis (TB) and an asbestos-related disease. In this regard, the Board notes that the Veteran's service treatment records include a notation that the Veteran was in contact with an individual who had been diagnosed as having active, moderately advanced pulmonary tuberculosis. He underwent a skin test on October 13, 1965, which was reported as reactive with a negative mm induration. Follow-up studies were recommended consisting of either a skin test or chest X-ray, to be repeated in 6 weeks, 3 months, 6 months and one year. An October 15, 1965 chest X-ray was then negative. Six weeks later a skin test was repeated and reported as reactive with a 15mm induration. Chest X-rays in May 1966, October 1966 and June 1967 were all negative. At his July 1967 separation examination, the Veteran's lungs and chest were found to be normal, and a respiratory disorder was not diagnosed. The Veteran's service personnel records show that he served as a ship fitter metal smith, to include while on the USS Saint Paul, a heavy cruiser. Although the records do not specifically document exposure to asbestos, given the time frame in which the Veteran served and his duties as ship fitter metal smith, the Board presumes that he had some level of asbestos exposure inservice. Post-service, the record does not contain any documentation of an underlying respiratory disability to include active tuberculosis or asbestosis. As noted above, at a July 1967 separation examination, as well as at an August 1968 Navy Reserve examination, the lungs and chest were normal. In an August 1968 report of medical history, the Veteran specifically denied having a history of tuberculosis, asthma, shortness of breath, chronic cough, pain or pressure in the chest, or any other respiratory pathology. The appellant now, however, claims that he would have been barred from serving in the reserve if he had disclosed any history of a respiratory disorder. The record does include the Veteran's complaints of shortness of breath, beginning with his September 2006 claim for service connection. It does not, however, include any diagnosis of an underlying respiratory disability manifested by shortness of breath. Despite these facts, in view of the order of the Court, this case is REMANDED for the following action: 1. The Veteran must be invited to identify all health care providers, both VA and private, who have treated him for a respiratory disorder since his discharge from active duty. This particularly includes any records which would demonstrate that the appellant suffers from a current respiratory disorder that is related to his active duty service. If the RO cannot locate records the appellant has identified, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the appellant must then be afforded a VA examination by a respiratory specialist for the purpose of clarifying the nature and etiology of any diagnosed respiratory disorder. The claims file and access to any additional records in the appellant's Virtual VA file must be made available to the rheumatologist for review in connection with the examination. After examining the appellant, conducting any indicated testing, and reviewing the record, the respiratory specialist must address the following questions: Does the appellant currently have a respiratory disorder? If not, please provide a detailed rationale for such conclusion. If so, is it at least as likely as not (50 percent or greater probability) that any diagnosed respiratory disorder had its inception during his period of active duty or is otherwise causally related to his active service or any incident therein? A fully reasoned rationale must accompany any opinion offered. 3. Following completion of the actions delineated above, and after conducting any additional evidentiary development necessary, the RO/AMC should readjudicate the issue on appeal, considering all the evidence of record. If the benefit sought by the appellant remains denied, he and any representative must be provided a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board, 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). _________________________________________________ DEREK R. BROWN 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).