Citation Nr: 1333499 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-25 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) due to asbestos exposure. 2. Entitlement to service connection for congestive heart failure. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active naval service from March 1972 to March 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. In his September 2011 substantive appeal, the Veteran requested a hearing in Washington, D.C., before a member of the Board. A review of the record shows, however, that the Veteran failed to report for his scheduled September 2013 hearing. He has not requested another hearing. The Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (d)-(e) (2013). 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 VA has a duty to obtain a VA medical examination and opinion when required. 38 U.S.C.A. § 5103A(d) (West 2002). VA must provide a VA examination or obtain a medical opinion when the record (1) contains competent evidence that the claimant has a current disability or signs and symptoms thereof, (2) indicates that the disability or signs and symptoms thereof may be associated with active service, and (3) does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, the Veteran asserted in his May 2009 claim for service connection for COPD that he was exposed to asbestos while working on an aircraft carrier and has resultant respiratory disability. He also contends that he has congestive heart failure which is related to service. Evidence currently of record reveals that the Veteran served aboard an aircraft carrier during active duty as a mechanic and has current diagnoses of COPD and congestive heart failure. A May 2009 opinion from a VA physician reflects that the Veteran's diagnoses of chronic COPD and congestive heart failure are possibly related to an in-service injury, disease, or event. The basis for this opinion is unclear. The Veteran has not yet been afforded a VA compensation examination to reconcile the nature and etiology of his disability. In sum, there is insufficient evidence to decide the Veteran's claim. The Board does not have the medical expertise to make a medical determination as to whether the Veteran's COPD or congestive heart failure is related to an in-service injury, disease, or event, to include exposure to asbestos. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert). Given these circumstances, the Board requests that the Veteran be scheduled for a VA examination which addresses the etiology of any COPD or congestive heart failure. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain any outstanding records of VA treatment, including but not limited to records from the VAMC in Mountain Home, Tennessee dating since October 2007. 2. Then, provide the Veteran with a VA examination to determine the nature and etiology of any current COPD or congestive heart failure. Provide the examiner with the claims file, including any pertinent evidence in Virtual VA that is not already in the claims file. The examiner should review the claims file and perform all indicated studies. The examiner should provide an opinion, based on examination results and the record, regarding whether it is at least as likely as not (a 50 percent or greater probability) that any current COPD or congestive heart failure is related to an in-service injury, disease, or event, to include exposure to asbestos. The opinion must contain a complete medical rationale. 3. Then, the RO or AMC should readjudicate the claims on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the case should then be returned to the Board for further appellate action. 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). _________________________________________________ K. PARAKKAL 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) (2013).