Citation Nr: 1323703 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-49 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for fibrosis, claimed as due to asbestos exposure. 2. Entitlement to service connection for vocal cord paralysis, status post left thyroplasty, claimed as due to asbestos exposure. 3. Entitlement tot service connection for cardiovascular disease, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1964 to October 1968. This matter comes on appeal before the Board of Veterans' Appeals (Board) from the November 2008, February 2009, and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In the November 2008 rating decision, the RO denied service connection for fibrosis as due to asbestos exposure; in February 2009, the RO denied service connection for vocal cord paralysis as due to asbestos exposure; and in June 2010, the RO denied service connection for cardiovascular disease as due to asbestos exposure. The Veteran filed timely notices of disagreement in June 2009 (fibrosis and vocal cord paralysis) and September 2010 (cardiovascular disease). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The claims file includes a June 2009 correspondences from the Veteran indicating that he was enclosing copies of medical records pertaining to his application for Social Security Administration (SSA) disability benefits, which he was currently receiving, due to his "health issues." The Veteran did not specify which health issues he was receiving SSA benefits for and, upon review of the claims file, the Board has not identified any SSA documents in the record. Further, in a September 2008 VA respiratory examination, the VA examiner noted that the Veteran was "disabled from his job, as of May 2005 due to his anxiety and cardiac conditions." However, in a December 2008 VA nose, sinus, larynx, and pharynx examination report, the VA examiner noted that the Veteran stopped working around 2006 due to "vocal cord and respiratory condition." The Board finds that the evidence currently of record is unclear as to which condition(s) have resulted in the Veteran receiving SSA disability benefits. SSA decisions are not controlling for VA purposes, but they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering such records. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992) (concluding VA has a duty to obtain SSA records when it has actual notice that the veteran was receiving SSA benefits); See also Collier v. Derwinski, 1 Vet. App. 413 (1991); Brown v. Derwinski, 2 Vet. App. 444 (1992). Additionally, the United States Court of Appeals for Veterans Claims (CAVC) has held that where SSA disability benefits have been granted, a remand to obtain SSA records is required. See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that "the possibility that the SSA records could contain relevant evidence . . . cannot be foreclosed absent a review of those records."). Because it appears that the Veteran has received disability benefits from the SSA, the Board finds that a remand for all medical records held by SSA is necessary. The Veteran has not been afforded a VA examination in regard to his claim for service connection for cardiovascular disease as due to asbestos exposure. VA must afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (West 2002 & Supp. 2012). The Court in McLendon v. Nicholson, 20 Vet. App. 79 (2006), provided further guidance, outlining that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. In the present case, the Veteran has been diagnosed with coronary artery disease, post ventricular fibrillation cardiac arrest associated with a myocardial infarction, and ischemic cardiovascular disease. As noted above, the Veteran's in-service exposure to asbestos has been conceded. The Veteran maintains that exposure to asbestos is related to his current cardiovascular disease. Accordingly, a VA medical opinion should be obtained on remand to assist in determining whether the Veteran's cardiovascular diseases are related to his in-service asbestos exposure. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should request, from the SSA all records pertinent to the Veteran's claim for Social Security disability benefits as well as medical records relied upon concerning that claim. If the search for such records has negative results, the RO/AMC should notify the Veteran and place a statement to that effect in the Veteran's claims file. 2. Thereafter, the Veteran should be afforded a VA cardiovascular examination, performed by a qualified VA examiner, in order to assist in determining the etiology of the Veteran's cardiovascular disorders. The claims file should be furnished to the VA examiner for review and the report compiled by the VA examiner should indicate whether the claims file was made available and reviewed. Following the review of the claims file, an interview of the Veteran, a physical examination, and any further tests that are deemed necessary, the VA examiner should offer the following opinion: Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed cardiovascular disease(s) are related to the Veteran's in-service asbestos exposure. The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation. The examiner must provide a complete rationale for his or her opinion with references to the evidence of record. 3. When the development requested has been completed, the RO/AMC should readjudicate the issues on appeal in light of any additional evidence added to the claims file. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ K. J. ALIBRANDO 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).