Citation Nr: 1334854 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-02 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a respiratory disorder, to include asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to March 1946, and from April 1951 to August 1952. This matter comes before the Board on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO denied entitlement to service connection for asbestosis. For the reasons below, the Board has recharacterized the issue more broadly. In September 2013, the Veteran testified at a videoconference hearing before the undersigned. A transcript of that hearing is part of the Virtual VA claims file. 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 Veteran if further action is required. REMAND During his first term of active duty service, the Veteran served aboard the U.S.S. Copahee (CVE-12), and he contends that he was exposed to asbestos during that time. As indicated by the undersigned during the Board hearing, the Veteran is competent to so testify, this testimony is consistent with the circumstances of his service, i.e., serving aboard a World War II era constructed escort carrier between 1943 and 1945, and it is at least as likely as not that the Veteran was exposed to asbestos during service. The Veteran also stated during the Board hearing that he was treated by private physicians Bowlan and Hammond. There are diagnoses of some respiratory disorders in the VA treatment records but no diagnoses of any such disorders on the most recent, January 2013 VA examination. Given this conflict, the private treatment records noted by the Veteran could be relevant to the claim and should therefore be obtained. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) ("The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). 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. The Veteran should be requested to sign the necessary authorization for release of the private medical records of Drs. Bowlan and Hammond. If the Veteran provides appropriate authorization and identifying information and the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. The RO/AMC should also obtain any outstanding VA treatment records. 2. After completing the foregoing instruction, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the claim must be readjudicated. If and only if the Veteran presents medical evidence linking a current respiratory disorder to service, the RO should consider scheduling the appellant for a VA examination to address the etiology of any diagnosed respiratory disorder. The RO/AMC should note the recharacterization of the issue on appeal and consider whether entitlement to service connection for any respiratory disorder is warranted. 3. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). _________________________________________________ DEREK R. BROWN 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).