Citation Nr: 1334069 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 13-00 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a respiratory disorder, to include asthma and emphysema. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran did not request a hearing before the Board. In a March 2013 brief, the Veteran's representative indicated that the Veteran wished to file respective claims for entitlement to an earlier effective date, prior to August 12, 2010, for the awards of service connection for bilateral hearing loss and tinnitus. The Board refers those claims to the RO for development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran essentially contends that he developed a respiratory disorder due to exposure to chemical fumes, fuel fumes, and/or asbestos during service as a machinist's mate in the engine room of a Naval vessel. Due to the Veteran's Military Occupational Specialty (MOS) during service, equivalent to that of an engineer, VA has conceded in-service asbestos exposure. In June 2011, the RO provided the Veteran with a VA medical examination. However, the copy of the June 2011 VA medical examination report of record is inadequate for review purposes as many of its words are cut off at the right margin due to a formatting problem. A corrected copy of the June 2011 VA medical examination report should be procured for the record. In the June 2011 VA medical examination report, a VA examiner opined that the Veteran's respiratory disorder, specifically emphysema, was less likely than not related to service and more likely than not related to the Veteran's 53-year history of cigarette smoking. The VA examiner stated that "numerous epidemiologic studies indicate that cigarette smoking is overwhelmingly the most important risk factor" for emphysema. However, the VA examiner did not make any references to any specific studies. As part of this remand, an additional VA examination should be provided to determine the nature and etiology of the Veteran's claimed respiratory disorder, and the VA examiner should be advised to refer to clinical data when writing his or her opinions. In the June 2011 VA medical examination report, the VA examiner wrote that the Veteran had appeared for the performance of pulmonary tests, but failed to appear for the taking of chest X-rays. Therefore, the VA examiner was unable to review contemporaneous chest X-rays in writing her opinion regarding the nature and etiology of the Veteran's respiratory disorder. As part of this remand, the Veteran should be provided an additional opportunity to cooperate in the performance of the examination and should be advised that the failure to cooperate in the performance of the examination might result in the denial of his claim. In support of his claim, the Veteran provided VA with multiple private treatment records. However, the private treatment records were incomplete, as page numbers listed on the records in two instances indicated that pages were missing. In December 2010, VA issued a notice letter with authorization and release forms that would allow VA to procure the Veteran's outstanding private treatment records. The Veteran was advised in this letter to return the authorization and release forms so that VA could procure the Veteran's outstanding private treatment records. In an apparent attempt to comply with VA's requests, the Veteran submitted a signed authorization and release form in July 2011. Yet, although the Veteran signed the release form, he did not provide the contact information for any physician and, therefore, VA could not procure any private treatment records. VA should again provide the Veteran with authorization and release forms, and a letter explaining how they should be filled out so that he may provide the contact information of his private examiners to allow for the procurement of additional private treatment records. The RO should ensure that all VA treatment records are of record. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ensure that the Veteran is provided with the necessary authorization and release forms to procure any outstanding private treatment records. The Veteran should be specifically advised as to how to complete these forms, so that VA might procure the private treatment records from his providers, such as Dr. Meengs, Dr. McNamara, and Dr. Chebes. Ensure that all outstanding VA treatment records are procured for the claims file. 2. Procure a fully legible copy of the June 2011 VA medical examination report and associate it with the claims file. 3. Thereafter, schedule the Veteran for a VA pulmonary examination to determine the nature and etiology of the Veteran's claimed respiratory disorder. All indicated tests and studies should be performed. Prior to the examination, the claims folder should be made available to and reviewed by the VA examiner. In reviewing the claims file, the VA examiner should note that the Veteran is presumed to have been exposed to asbestos during service. The VA examiner should also note the following: a. The service treatment records, containing no notation of treatment or diagnosis for a lung disorder during service; b. The November 1957 service discharge examination report, indicating that the Veteran's lungs and chest were normal upon examination; c. The February 2004 private chest X-ray report; d. The January 2008 private treatment record, diagnosing the Veteran as having chronic obstructive pulmonary disorder; e. The June 2011 pulmonary function tests, with the notation indicating that the Veteran had smoked one-and-a-half packs of cigarettes per day for 53 years; f. The June 2011 VA medical examination report; g. Any evidence procured as a result of this remand. Having interviewed the Veteran, performed an examination, to include chest X-rays and pulmonary tests, and reviewed the claims file, the VA examiner should offer the following opinion: Is it at least as likely as not (50 percent or greater likelihood) that any diagnosed respiratory disorder had its clinical onset during active service or is related to any incident of service, to include exposure to chemical/gas fumes during service and/or conceded in-service asbestos exposure? The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as it is to find against causation. A rationale should be provided for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinion with what is considered to be a generally accepted degree of medical certainty, i.e., 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. 4. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefit sought in connection with the claim remains denied, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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. 2013). _________________________________________________ KELLI A. KORDICH Acting 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).