Citation Nr: 1332647 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-27 286A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), as due to asbestos exposure in service. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Virtual VA and VBMS electronic claims files associated with the Veteran's claim have been reviewed and all relevant evidence therein taken into account. 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 must remand the claim for a new medical opinion and further development of the record. A supplemental VA medical opinion should be obtained in this case as the April 2011 VA examination is not adequate. In order to be adequate, an opinion must be based on consideration of an appellant's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008). In the April 2011 examination report, the examiner noted that the RO did not request the claims file. Therefore, information and examinations contained in the Veteran's service treatment records, specifically as they relate to the Veteran's upper respiratory infections, coughing, and throat problems in service, were not considered. As a result, the claim should be sent back to the same examiner, if possible, so that the examiner can review the claims file and then provide a supplemental opinion. While on remand, efforts must be made to obtain any relevant VA treatment records from prior to December 2010, particularly VA treatment records from 2003 and 2004, during which time the Veteran states he was diagnosed with COPD. The Veteran should be asked to identify any medical records relating to his hospitalization at a New Port Ritchie hospital for pneumonia in 2000. Also any further treatment records identified and authorized for release by the Veteran should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records from all appropriate VA medical facilities for treatment received prior to December 2010, to include records from James A. Haley VA Medical Center and the New Port Richey VA outpatient clinic. Recent VA treatment records that are not already associated with the record should also be obtained. 2. The Veteran should be asked to provide or identify and relevant non-VA medical records, including those relating to hospitalization in 2000 for pneumonia at a New Port Ritchey hospital, and any records so identified should be obtained if possible. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, 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. 3. After undertaking the development listed above to the extent possible, obtain a supplemental opinion from the examiner who provided the April 2011 VA medical opinion or another appropriate medical professional. The claims file must be made available to and reviewed by the reviewer, to include relevant electronic records. A note that it was reviewed should be included in the opinion. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. The reviewer is asked to provide an opinion regarding whether it is at least as likely as not (a fifty percent probability or greater) that a current disability, including COPD, was incurred in service, to include as due to asbestos exposure. The examiner is also asked to indicate whether the Veteran currently has a parenchymal mass and if so whether it is at least as likely as not related to service, to include asbestos exposure therein. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner's attention is directed to the Veteran's lay statements, the Veteran's service treatment records, which note upper-respiratory infections, productive coughing, and other respiratory issues during service, and the possible left upper lobe parenchymal mass noted in a December 2002 chest x-ray. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran 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). _________________________________________________ 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).