Citation Nr: 1320369 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-48 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as a result of asbestos exposure and/or as secondary to service-connected asbestosis. 2. Entitlement to service connection for a respiratory sleep condition, to include as a result of asbestos exposure and/or as secondary to service-connected asbestosis. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1949 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. 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 appellant was afforded a VA examination in May 2009. However, the Board finds that the VA examination is inadequate. In regard to the appellant's claim for service connection for a respiratory sleep condition, the VA examiner stated that the appellant had not been diagnosed with a respiratory related sleep disorder related to the asbestosis because he had not had a sleep study done by his primary MD. As the reason given for not diagnosing the appellant with a sleep disorder is based on a lack of testing by VA, the opinion is inadequate. A March 2013 VA treatment record reflects that the appellant's problem list included a sleep disorder due to a general medical condition, insomnia type. The appellant has been diagnosed with COPD during the period on appeal and thus has a current disability. Additionally, in a December 2009 substantive appeal, the appellant stated that both of the breathing conditions that he was claiming were due to or secondary to his asbestosis condition and would not be as severe had he not suffered lung damage from his military service. Thus, the appellant has claimed service connection for COPD and a respiratory sleep condition as secondary to his service-connected asbestosis. The VA examiner stated that the appellant's condition was complicated by a long history of cigarette smoking and the development of COPD, and his pulmonary status appeared to be a combination of the effects of asbestosis plus the effects of long-term exposure to cigarette smoke. However, the May 2009 VA examiner did not directly address whether the appellant had COPD and/or a respiratory sleep disorder that was caused or aggravated by his service-connected asbestosis. As the VA examiner did not adequately address entitlement to service connection for COPD and a respiratory sleep condition on a direct or secondary basis, the Board finds that the claim must be remanded for a new VA examination. Finally, the VA treatment records in the file date to March 2013. As the appellant is receiving treatment at VA and the records may be relevant to the claim, the Board requests the appellant's complete VA treatment records from March 2013 to present. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the appellant's VA treatment records from March 2013 to present. If no records are available, the claims folder must indicate this fact. 2. Then, schedule the appellant for a VA examination to determine the following: (a) Identify all respiratory conditions, to include COPD and a respiratory sleep condition. (b) Determine whether is at least as likely as not (50 percent probability) that any currently diagnosed COPD is related to service, to include due to exposure to asbestos. (c) Determine whether it is at least as likely as not (50 percent probability) that any currently diagnosed COPD was caused or aggravated by his service-connected asbestosis. (d) Determine whether it is at least as likely as not (50 percent probability) that any currently diagnosed respiratory sleep condition is related to service, to include due to exposure to asbestos. (e) Opine as to whether it is at least as likely as not (50 percent probability) that any currently diagnosed respiratory sleep condition diagnosed was caused or aggravated by his service-connected asbestosis. The examiner is advised that "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If any aggravation is present, the physician should indicate, to the extent possible, the approximate level of severity of COPD or any sleep disability (i.e., a baseline) before the onset of the aggravation. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 3. Thereafter, readjudicate the issues on appeal of entitlement to service connection for COPD and a respiratory sleep condition, to include as secondary to exposure to asbestos in service and/or service-connected asbestosis. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ M. E. LARKIN 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).