Citation Nr: 1330315 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 05-30 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for lung disorders, including emphysema, chronic obstructive pulmonary disease and asthma, to include as due to Agent Orange or asbestos exposure. 2. Entitlement to service connection for claimed right lung pain to include right subcostal pain, costochondral, to incude as due to Agent Orange or asbestos exposure. 4. Entitlement to service connection for halitosis, claimed as bad breath, to incude as due to Agent Orange or asbestos exposure. . REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's claim was remanded by the Board for additional development in September 2009, July 2011, and November 2012. The United States Court of Appeals for Veterans Claims (Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. Accordingly, in light of the Veteran's reported symptoms, assertions, and the medical evidence, the issues have been recharacterized as reflected on the title page, which will provide the most favorable review of the Veteran's claims in keeping with the Court's holding in Clemons. 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 While the Board sincerely regrets the delay, remand is required for several reasons. First, additional medical inquiry is required as the examiner indicated that there is no documentation showing that the Veteran was treated for respiratory symptoms in service or diagnosed with asthma. However, the examiner did not consider the Veteran's reports that he had difficulty breathing in service. In addition, the Veteran has reported that he was hospitalized for several weeks in service for difficulty breathing and his appendix. As inpatient records are separately filed, the Veteran should be asked to clarify where he was hospitalized and the approximate dates of hospitalization. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify the facility at which he was hospitalized in service and the approximate dates of treatment. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. If the identified records are not obtained, the Veteran should also be informed that he can submit alternate evidence to supplement the available service treatment records. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b. 2. Thereafter, request an addendum from the April 2013 VA examiner. The claims folder should be forwarded to the examiner for review and the examiner should indicate in the addendum that such was accomplished. The examiner is requested to address the following: a. Does the Veteran have emphysema? b. Are the Veteran's COPD, asthma, emphysematous changes or emphysema, costochondral pain, and/or halitosis at least as likely as not (50 percent or greater possibility) related to the Veteran's period of active service. In this regard, the examiner should consider that the Veteran has credibly reported that he experienced problems breathing in service. c. Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's COPD, asthma, emphysematous changes or emphysema, costochondral pain, and/or halitosis are due to Agent Orange exposure during service in Vietnam. While the Veteran may not have a disease that is presumed to be related to Agent Orange exposure, service connection may still be warranted if the disorder is nevertheless found to be related to Agent Orange exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). d. Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's COPD, asthma, emphysematous changes or emphysema, costochondral pain, and/or halitosis are due to claimed exposure to asbestos in service. 3. Take any additional development action that is deemed warranted and then readjudicate the claims. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. 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). _________________________________________________ S. S. TOTH 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).