Citation Nr: 1324728 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-15 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a respiratory disorder to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to July 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran testified during a hearing before the undersigned Veterans Law Judge in November 2011. A transcript of the hearing is of record. This issue was previously before the Board in February 2012 when the Board denied the Veteran's claim of entitlement to service connection for a respiratory disorder and granted entitlement to service connection for bilateral hearing loss. The Veteran appealed the portion of the February 2012 Board decision that denied entitlement to service connection for a respiratory disorder to the United States Court of Appeals for Veterans Claims (the Court). In a July 2012 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion) submitted by the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, vacated the part of the February 2012 Board decision that denied entitlement to service connection for a respiratory disorder and remanded the issue to the Board for action consistent with the Joint Motion. The Board remanded this matter in April 2013 for further evidentiary development. The RO continued the denial of the claim as reflected in the July 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate 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 Board regrets further delay with respect to the issue on appeal; however, after a review of the record, it finds that a remand is necessary to comply with the prior remand directive and for further evidentiary development. The July 2012 Joint Motion notes that the February 2012 Board decision referred to a June 1966 separation examination and a June 1966 separation medical history report in support of its findings. The Joint Motion also referenced the VA examination conducted in August 2010 and observed that the examiner relied upon the June 1966 separation medical history report as part of his opinion. Unfortunately, the June 1966 separation medical history report was not part of the physical one volume claims file, or within the Record Before the Agency (RBA). The Joint Motion determined that one of the documents on which the Board relied to render its decision, to the Appellant's detriment, is unavailable, thereby frustrating judicial review and remanded the case so that VA can attempt to locate the document or reconstruct the Appellant's service medical records. The Board remanded the claim in April 2013 to obtain the missing June 1966 separation medical history report. The claims file contains a request by the AMC to the National Personnel Records Center (NPRC) to provide all records from May 1961 to July 1966 with respect to the Veteran. There is no indication in the claims file that there was response to this request and the missing service treatment record is not associated with the claims file. The Board has determined that the RO/AMC has not taken all procedurally appropriate actions to locate the June 1966 medical history report (along with any other determined missing contents of the original claims folder) or attempted to rebuild the missing contents. Accordingly, a remand is necessary in order to comply with the prior remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Court or the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). In addition, the Board notes that the Veteran was provided with a VA examination in August 2010. The examiner determined that it is less likely as not that the Veteran's current lung conditions are related to asbestos exposure during service. At that time, the Veteran was diagnosed with chronic obstructive pulmonary disease (COPD), asthma and a stable benign left upper lobe lung nodule. A May 2012 VA pulmonary treatment record shows that a June 2009 CT scan brought in by the Veteran on a compact disc (CD) reveals non-calcified nodules in the bilateral lung fields and some of them are pleural based. The VA physician determined that some changes could be related to asbestos exposure. Furthermore, the record contains a private medical opinion dated in January 2011 that asserts the Veteran's lung conditions are at least as likely as not a result of or exacerbated by his exposure to asbestos and to heavy dust concentrations during military service. As additional pertinent medical evidence has been associated with the claims file, the Veteran should be provided with another VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate action to re-obtain the missing service treatment record identified in the July 2012 Joint Motion. Specifically, the July 2012 Joint Motion requires that VA seek to locate any service treatment record matching the description presented in the July 2010 VA examination report and the Board's February 2012 decision as a June 1966 separation medical history report that was previously associated with the June 1966 separation examination report (the examination report, without the described medical history report, is currently in the claims file). The RO/AMC must take all procedurally appropriate actions to locate the June 1966 separation medical history report (along with any other determined missing contents of the original claims folder) or, if necessary, rebuild the missing contents in accordance with M21-1MR, Parts II and III. If the RO/AMC is unable to reacquire the original missing documentation, all procedurally appropriate actions should be taken to rebuild the missing contents of the claims folder. Actions should include but not be limited to (1) contacting the National Personnel Records Center to request copies of missing service treatment records and (2) providing specific notice requesting the Veteran to provide copies of pertinent missing documents (or other information which may lead to obtaining a copy of the missing record) which may be in his possession, and providing reasonable assistance, to the extent appropriate, in obtaining documents from any potential sources identified by the Veteran. If after the above steps have been taken and VA concludes that it is reasonably certain that further efforts to obtain the records would be futile and VA is unable to reconstruct the missing record(s), VA will document the unavailability of such record(s), and all attempts to obtain such record(s). VA must also provide the Veteran with notice of that fact as required under 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) and allow an appropriate period of time for the Veteran to respond. 2. After completing the foregoing and associating any outstanding records with the claims file, schedule the Veteran for a VA examination with an appropriate specialist regarding his service connection claim for a respiratory disorder. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether the Veteran's COPD, asthma, non-calcified pleural nodules or any other respiratory/lung disorder found on examination is at least as likely as not (i.e., a fifty percent or greater probability) related to the Veteran's active military service to include exposure to asbestos and/or dust. The examiner should provide an explanation for all conclusions reached based on the medical and lay evidence of record. As part of his or her opinion, the examiner is asked to address the May 2012 VA treatment record that indicates the lung changes could be related to asbestos exposure and the positive January 2011 private medical opinion. 3. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to service connection for a respiratory disorder, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, 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). _________________________________________________ ROBERT E. SULLIVAN 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).