Citation Nr: 1333783 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 11-11 841A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a pulmonary disease or condition, to include asbestosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to November 1975. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied service connection. The Veteran has both a paper claims file and a Virtual VA and VBMS paperless claims file, which are highly secured electronic repositories that are used to store and review documents involved in the claims process. The Board has reviewed these electronic records and any further development or adjudication of this matter should take into account the existence of this paperless claims file. The claims file includes private treatment records dated from January 2012 that were not reviewed by the RO. In a January 2013 Informal Hearing Presentation, the Veteran's representative waived review of these records by the Agency of Original Jurisdiction. 38 C.F.R. § 20.1304 (2013). In his substantive appeal, the Veteran requested a Board hearing. However during a hearing with the Decision Review Officer (DRO), he waived any future Board hearing. The claim for service connection for asbestosis has been expanded to include a claim for any pulmonary disease. See Brokowski v. Shinseki, 23 Vet. App. 79, 90 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 During a September 2010 VA examination, the examiner noted the possibility of interstitial disease in the lungs, and that the Veteran had a nodule on his left lung. The examiner did not discuss the etiology of pulmonary diseases other than asbestosis. Service treatment records (STR) show numerous complaints and treatment for cough, chest pains, and inflammation. These symptoms are similar to those the Veteran reports currently and indicate that the current symptoms may be related to service. A VA examination is needed to determine if any such relationship exists. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In a letter dated January 2007, Dr. JCG discussed a 2003 study of the lung that suggested asbestosis, however no radiological or other studies were obtained from this time. Additionally, during January 2012 VA treatment, the Veteran mentioned being on disability when asked about his occupation. VA has a duty to seek records pertaining to the finding of disability. See 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any disability benefits he is receiving. If he is receiving benefits, obtain those records. Take the necessary steps to obtain medical records and decisions pertaining to any disability determinations outside of VA. 2. Ask that the Veteran identify and sign releases for any records from Dr. JCG or referenced in the 2007 letter, to include radiological and other studies conducted pertinent to a lung condition. Take the necessary steps to obtain these records. 3. After completing the above, schedule the Veteran for a VA examination to assess any current pulmonary condition and its connection to service. The examiner should review the entire claims file, including a copy of this remand, service treatment records, and any relevant records in an electronic format. Such review should be noted in the examination report. The examiner should respond to the following: a. Does the Veteran have a current pulmonary disease or disability (i.e. has such a condition been present at any time since near the time of his claim in February 2010)? b. If so, was the current pulmonary disease or disability at least as likely as not (probability of 50 percent or more) caused by or aggravated by a disease or injury in active service? The examiner must provide reasons for each opinion offered, and all lay and medical evidence of record should be considered. The examiner should specifically consider the relationship between the current disease or disability and the symptoms documented in service. If any requested opinion cannot be offered without resorting to speculation, the examiner should explain why a non-speculative opinion cannot be offered, and state whether the inability to provide the needed opinion is due to the absence of any evidence or is due to the limits of scientific or medical knowledge. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The appellant 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. 2013). _________________________________________________ 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) (2013).