Citation Nr: 1320048 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-50 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD), claimed as secondary to asbestos exposure. 2. Entitlement to service connection for residuals of a right ankle fracture. 3. Entitlement to service connection for a nose disability, to include as residuals of a broken nose or residuals of a cyst removal. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1960 to July 1964. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. In his original claim submitted in December 2008, the Veteran remarked that he had received treatment from VA Medical Center (VAMC) Fayetteville, Arkansas, and VA Outpatient Clinic (VAOPC) Mt. Vernon, Missouri. In his May 2009 notice of disagreement, the Veteran reiterated that he had received treatment from VAMC Fayetteville and VAOPC Mt. Vernon; additionally, he said he had received treatment at VAMC Topeka, Kansas. Of record are treatment records from VAMC Fayetteville from April 2003 through October 2008. No treatment records from VAOPC Mt. Vernon or VAMC Topeka have been associated with the claims file. Because VA is on notice that there are records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and must be obtained. 38 C.F.R. § 3.159 (c)(1), (2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Specifically, as to the claim for service connection for a nose disability, the service treatment records reflect that from January 1964 through April 1964, the Veteran received treatment for a an epithelial inclusion cyst on the left side of the bridge of his nose. In April 1964, this cyst was excised by a service treatment provider. The Veteran indicated on a June 1964 Report of Medical History that he had a tumor, growth, or cyst. Post-service, VA and private treatment records document that the Veteran is currently being treated with oxygen for pulmonary problems, and the Veteran reports an inability to pull oxygen in through his left nostril. The Veteran has attributed this inability to residuals of the cyst removal. The Veteran has also attributed this inability to pull oxygen through his left nostril to residuals of a broken nose. He has stated that while on active duty, a wrench slipped and broke his nose. The Board notes that service treatment records are negative for any signs, symptoms, or diagnoses of a broken nose. However, the Board recognizes that a broken nose is the type of diagnosis that can be established by lay testimony. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg. The Board notes that he has not yet been afforded a VA examination with regard to this claim. On remand, the Veteran must be provided an examination to determine whether he currently experiences any residuals from his in-service nasal cyst removal and/or his alleged broken nose. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, identify and obtain all outstanding relevant treatment records, to include any outstanding treatment records from VAMC Fayetteville as well as VAMC Topeka and VAOPC Mt. Vernon. All efforts to obtain this evidence must be documented in the claims folder. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A (b) (2) (West 2002); 38 C.F.R. § 3.159(e) (1) (2012). 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current nose disability. The claims folder must be provided to and reviewed by the examiner and the examiner must indicate on the examination report that such review was undertaken. The examiner should elicit a complete history from the Veteran. All indicated tests and studies should be performed, and all findings should be set forth in detail. a. The examiner must determine whether the Veteran currently has residuals of a nasal cyst excision. b. If so, the examiner must offer an opinion as to whether there is a 50 percent probability or greater that it is etiologically related to service taking into consideration any contentions from the Veteran. c. The examiner must offer an opinion as to whether there is a 50 percent probability or greater that any current disability of the nose is related to the alleged broken nose that occurred in service, or to any other injury or incident therein. All findings must be reported in detail and all indicated testing must be accomplished. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. After completing the above action, readjudicate the Veteran's claims. If any of the claims remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MICHAEL LANE 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).