Citation Nr: 1330034 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-16 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a respiratory disease, claimed as due to in-service asbestos exposure. REPRESENTATION Veteran represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to February 1957. This matter comes to the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied entitlement to service connection for asbestosis. The Veteran testified before the undersigned at a hearing at the RO in July 2013; the transcript is of record. He submitted additional evidence in support of his appeal and waived Agency of Original Jurisdiction (AOJ) review of such additional evidence. See 38 C.F.R. §§ 19.9, 19.31(b)(1) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND At his hearing, the Veteran testified that he had sought treatment at the VA James J. Howard Community Clinic in Brick, New Jersey, for approximately the past 10 years; the claims folder includes no records for the period since March 2011. VA has a duty to obtain the records since March 2011. Bell v. Derwinski, 6 Vet. App. 611 (1992). The Veteran also testified that Dr. Patel, a physician who specializes in interstitial lung disease, had told him he had asbestosis. VA has a duty to take steps to obtain these records. 38 C.F.R. § 3.159(c)(1) (2013). In July 2010, the Veteran underwent a VA respiratory examination. The examiner references May 11, 2010 pulmonary function tests (PFTs) and a Chest Cat Scan which were conducted at an outside facility. Such reports are not of record and must be associated with the claims folder. The July 2010 VA examiner stated that the Veteran's respiratory symptoms were due to chronic obstructive pulmonary disease (COPD) and that COPD was due to smoking, not asbestos. The opinin is of limited value; however, because there was no rationale for the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 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). Expedited handling is requested.) 1. Ask the Veteran to complete an authorization for VA to obtain all records of his treatment from Dr. Patel. If the Veteran fails to furnish a necessary release for the private treatment records, he should be advised to obtain the records and submit them to VA. If any records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims, and he should be advised to submit any records in his possession. All such notification must be documented in the claims file. 2. Obtain records of the Veteran's treatment for respiratory disabilities at the James J. Howard Community Clinic in Brick, New Jersey. If any records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims, and he should be advised to submit any records in his possession. All such notification must be documented in the claims file. 3. Associate with the claims folder or Virtual VA the May 11, 2010 reports of PFTs and chest scan performed by an outside facility and referenced in the July 12, 2010 VA respiratory examination report. If the records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims, and he should be advised to submit any records in his possession. All such notification must be documented in the claims file. 4. Ask the examiner who provided the July 2010 respiratory examination to review the record, including all newly obtained records. The examiner should assume that VA has conceded that the Veteran had asbestos exposure during his service in the US Navy. The examiner should: a) Identify all respiratory disabilities or diseases, to include COPD and asthma, and state whether the Veteran has a disease related to asbestos exposure; b) Opine whether any disability identified, is at least as likely as not (a 50 percent or higher degree of probability) due to the Veteran's period of active service including in-service asbestos exposure, during active service? The examiner should provide reasons for these opinions. If the foregoing questions cannot be determined on a medical or scientific basis without resort to speculation, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. If the previous examiner is not available, the Veteran should be afforded a new examination to obtain answers to the questions contained in a) and b) above. 5. If the benefit sought on appeal is not granted, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran and his representative have 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). _________________________________________________ Mark D. Hindin 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).