Citation Nr: 1320288 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-35 714 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for claimed asbestosis. 2. Entitlement to an initial rating in excess of 10 percent for the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to December 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from October 2008 and December 2010 rating decisions of the RO. The Veteran originally requested a hearing before a Veterans Law Judge. However, in correspondence dated in January 2012, the Veteran's representative indicated that the Veteran would waive his right to testify at a personal hearing. Therefore, no hearing need be held in this matter. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND A. Asbestosis The Veteran contends that he developed asbestosis as a result of his exposure to asbestos while in the Air Force. The Veteran's DD Form 214 indicates that his military occupational specialty (MOS) was that of an aircraft mechanic. He asserts being exposed to aircraft parts that contained asbestos. This included asbestos brake dust which covered the area behind the engine firewall and landing gear struts and wheels on C-124 aircraft that he had to inspect and clean after every landing. These landings occurred on a daily basis, sometimes several times on a particular day. He also reports that ground-powered equipment used in aircraft maintenance contained asbestos insulation as heat protection shielding. Additionally, the Veteran reports being exposed to asbestos after a tornado damaged buildings while he was in technical school. After service, the VA treatment records document that the Veteran was occupationally exposed to asbestos as an auto mechanic, maintenance man on heating and cooling systems, and in a factory that made polyester fiber and yarn. The VA treatment records show a diagnosis of asbestosis. The Board finds that the Veteran's assertions about his exposure to asbestos while working as an aircraft mechanic are credible. In light of his in-service exposure to asbestos and treatment records showing a current diagnosis of asbestosis, the Veteran should be afforded a VA examination to determine the likely etiology of the claimed asbestosis. Additionally, the most recent VA treatment records in the claims file are from February 2008; more recent treatment records should be obtained. B. PTSD A careful review of the claims file shows that the Veteran filed a timely Notice of Disagreement (NOD) with the initial rating of 10 percent assigned for the service-connected PTSD. Initially, the RO determined that his NOD was not timely. However, after the Veteran's representative provided documentation that a timely NOD had earlier been filed, the RO accepted the appeal for processing. However, a review of the paper and virtual VA files does not show that a Statement of the Case (SOC) was ever issued with respect to this issue. An unprocessed Notice of Disagreement must be remanded, not referred, to the AOJ for issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Thus, this claim must be remanded for issuance of a Statement of the Case. See 38 C.F.R. §§ 3.160(c), 19.26 (2012). See also Manlincon, 12 Vet. App. at 240-241. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to have him identify all treatment that he received for his claimed asbestosis. Copies of all records from an identified treatment source should be obtained, including any VA treatment records for the period after February 2008. If records are identified but cannot be obtained, the attempts that were made to obtain the records should be documented in the claims file and the Veteran should be notified of VA's inability to obtain the records. 2. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed asbestosis. The examiner should review the claims file in conjunction with the examination. All indicated testing should be done in this regard. After examining the Veteran and reviewing the entire record, the examiner should provide an opinion as to whether it is at least as likely as not (at least 50 percent likely) that any chronic disability manifested by asbestosis had its clinical onset during service or otherwise is due to his exposure to asbestos while working in aircraft maintenance during his period of active service. The examiner should provide a complete rationale for his or her conclusion. In doing so, the examiner should address both the lay assertions of in-service exposure to asbestos and any document exposure following service. If the examiner is unable to provide the requested opinion without resort to undue speculation, then he or she should explain why this is the case. 3. After completing all indicated development, the RO should readjudicate the claim of service connection for asbestosis in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. 4. The RO also should furnish the Veteran and his representative a Statement of the Case referable the Veteran's appeal of the claim for a higher initial rating for the service-connected PTSD. The Veteran should be notified that this matter will be returned to the Board for the purpose of appellate review only if perfects his appeal by filing a timely Substantive Appeal, as instructed. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).