Citation Nr: 1327784 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-09 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from May 1943 to December 1945. 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 Montgomery, Alabama. The Veteran appeared at a Travel Board hearing at the RO in May 2013 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 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 Private treatment records from Dr. David P. Franco dated in August 2008 reflect that the Veteran had pulmonary problems including chronic cough, chronic obstructive pulmonary disease (COPD), and a noncalcified pulmonary nodule. Dr. Franco opined that some of these problems may be due to the Veteran's prior exposure to asbestos. In June 2009, Dr. Franco opined that it is highly likely that the scattered scarring on the Veteran's chest X-ray is indicative of asbestosis due to prior exposure while serving as a machinist on a submarine during military service. The Veteran underwent a VA examination in July 2010. The examiner diagnosed COPD due to prior tobacco use, and chronic cough due to COPD. The examiner stated that there was no evidence of pulmonary asbestosis. The examiner noted that she reviewed the findings by Dr. Franco. The examiner stated that there was no evidence on CT chest of changes that would diagnose pulmonary asbestosis. The examiner also noted that there was no evidence in any pulmonary function test results of impaired of diffusing capacity, which the examiner stated is caused by pulmonary asbestosis. The VA examiner's conclusions appear to be inconsistent with those offered by Dr. Franco, although a careful reading raises the question that the Veteran may have scattered scarring from asbestos exposure as Dr. Franco asserts, which, however, produced no respiratory impairment, as indicated by the VA examiner. In any event, a reconciliation of these conclusions should be attempted. Lastly, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service respiratory symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain relevant VA treatment records from Central Alabama Veterans Health Care System and the Birmingham VA Medical Center, dated from August 2013 to the present. 3. Following the completion of the development above to the extent possible, refer the Veteran's file to an individual with appropriate expertise for an opinion that addresses whether it is at least as likely as not that the Veteran has a respiratory disability that arose during service or is etiologically related to the Veteran's military service, to include the Veteran's exposure to asbestos during service. In doing so, the reviewer should address the June 2009 opinion by Dr. Franco that it is highly likely that the scattered scarring on the Veteran's chest X-ray is indicative of asbestosis due to prior exposure while serving as a machinist on a submarine during military service, along with the findings of the July 2010 VA examiner that there was no evidence of pulmonary asbestosis. The reviewer is to provide the reasoning for the opinions rendered, and if it is necessary to examine the Veteran to obtain the requested opinion, that should be arranged. If the reviewer is unable to offer an opinion without resorting to speculation, the reviewer should provide the reasons why an opinion could not be given. 4. Then readjudicate the appeal. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). 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). _________________________________________________ MICHAEL E. KILCOYNE 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).