Citation Nr: 1327755 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-02 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos, or in the alternative, claimed as secondary to service-connected asbestos-related pleural disease with fibrosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from February 1959 to November 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In June 2010, the Veteran testified at a Travel Board hearing at the RO before the undersigned. A transcript of the hearing is associated with the claims file. In January 2011, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2012). The requested opinion, dated in May 2011, has been provided and associated with the Veteran's VA claims folder. In July 2011, evidence was associated with the Veteran's claims folder accompanied by a waiver of local consideration. This waiver is contained in the Veteran's VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). In a decision dated in October 2011, the Board denied entitlement to service connection for COPD and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In its Order dated in May 2012, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties requesting that the Court vacate the Board's October 2011 decision and remand the appeal to the Board for further proceedings. Subsequently the Board remanded this matter in January 2013 to obtain additional evidence in accordance with the actions requested by the Joint Motion. Such development has been completed and this matter is returned to the Board for further 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 Unfortunately the Board finds it is again necessary to remand this matter for additional development. Additional evidence has been obtained since the Board's last remand of January 2013, consisting of 1287 total pages of VA medical records in CAPRI (Compensation and Pension Records Interchange). Some of these records are recent records pertinent to the matter and could potentially change the outcome of the expert medical opinion from May 2011. The examiner who gave this opinion specifically indicated that he reserved the right to change his opinions if additional information was provided. Additionally the Board notes that the brief submitted to the electronic record in June 2013 was not properly uploaded to the electronic record. As there is no hard copy of this brief, the RO should request the representative resubmit this brief. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran's representative and request that he or she submit another appellate brief and ensure that this is properly uploaded to the claims folder. 2. The AMC/RO should return the claims folder to the May 2011 VHA expert medical examiner, if available. The claims folder and a copy of this remand must be reviewed by the examiner. The examiner is asked to clarify his opinion as to whether it is as likely as not (a 50/50 probability) that Veteran's COPD was either caused by or aggravated by his service connected asbestos-related pleural disease or fibrosis, and provide a detailed explanation for his conclusions. The examiner is asked to review the evidence of record, to include the CAPRI records in the electronic record showing treatment from 2006 to 2012 and from late 2012 to early 2013. The examiner should cite to the record, with particular attention paid to the records that were not previously reviewed, including the January 2011 radiology report, and other subsequent records and diagnostic study reports in the electronic record from January 2011 to January 2013 (including X-rays, CT scans and PFT findings, as well as medical reports addressing COPD/asbestosis symptoms), to support the opinion. (If the examiner is no longer available, otherwise unreachable, or concludes that an examination is required to provide the required opinions, another examination should be scheduled.) If the examiner determines that he cannot provide an opinion on the issue at hand without resorting to speculation, he should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) The reports of any study or studies relied upon by the examiner must be associated with the claims folder. 3. The AMC/RO must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate the AMC/RO should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review, to include consideration of whether an addendum expert medical opinion is required to decide the claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ Thomas H. O'Shay Acting 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).