Citation Nr: 1332955 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-16 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1970 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 The Veteran asserts that his current COPD is the result of in-service exposure to asbestos, jet fuel, dry cleaning solvents, benzene, lead, nickel, arsenic, or polychlorinated biphenyl (PCB). In connection with his claim the Veteran was provided a VA examination in September 2009 to determine the etiology of his COPD. After reviewing the claims file and evaluating the Veteran the examiner noted the Veteran's long history of smoking and conceded exposure to asbestos. She then opined that both asbestos exposure and cigarette smoking are known causes of COPD and that it would be mere speculation on her part to state which of the above actually caused the Veteran's current COPD condition. This opinion is inadequate for VA purposes for two reasons. First, the examiner did not provide any reasons or basis for why she could only speculate as to the etiology of the Veteran's COPD. In the event an examiner can only speculate, the examiner should clearly identify precisely what facts cannot be determined. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Without such reasoning, the Board is unable to assign more than minimal probative weight to the examiner's conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Second, the examiner opined that she could not determine what actually caused the Veteran's COPD. The correct standard is whether it is at least as likely as not (50 percent probability or more) that the Veteran's COPD was caused by service, to include exposure to asbestos or other materials, not whether asbestos actually caused his condition. Accordingly, the September 2009 VA examination report is not adequate to decide the case and a new examination is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, the Veteran has asserted in his substantive appeal, dated in April 2010, that he was also exposed to dry cleaning solvents, benzene, lead, nickel, arsenic, or polychlorinated biphenyl (PCB). No etiology opinion has been obtained that addresses the issue of whether his COPD is related to exposure to any of these other materials. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the VA Medical Center in Columbia, Missouri, and all associated outpatient clinics dated from September 2011 to the present. All attempts to obtain these records must be documented in the claims file. If the RO/AMC is unable to obtain these records, then it must notify the Veteran in writing and provide him an opportunity to respond. 2. The RO/AMC should provide the Veteran with a VA examination to be conducted by a pulmonologist. The claims file should be provided to the examiner in connection with the examination. Any medically indicated tests should be accomplished. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed COPD is etiologically related to service, to include his in-service exposure to asbestos, jet fuel, dry cleaning solvents, benzene, lead, nickel, arsenic, or polychlorinated biphenyl (PCB). A complete rationale should be provided for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinion without resorting to speculation, the reasons should be so stated. The VA examiner should in such case explain why it would be speculative to respond and what evidence or information would be needed to provide a non-speculative opinion. 3. Thereafter the RO/AMC should readjudicate the claim and, if the benefit claimed is denied, a supplemental statement of the case should be issued and the Veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).