Citation Nr: 1334925 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 06-37 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Deanne L. Bonner, Attorney ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2010, the Board, in relevant part, remanded the issue of entitlement to service connection for asbestosis. Following completion of the remand directives, the Board issued a decision in March 2012 in which it denied the Veteran's appeal. He appealed that decision to the U.S. Court of Appeals for Veterans Claims ("the Court"). In a March 2013 decision, the Court granted a Joint Motion for Remand (JMR) by the Veteran's representative and the VA General Counsel and remanded the claim back to the Board for further proceeding consistent with the March 2013 Order. In September 2013, the Veteran's representative submitted a brief in support of the Veteran's claim with an attached waiver of initial RO consideration for such evidence. See 38 C.F.R. § 20.1304(c) (2013). The waiver and brief have been associated with the claims file. The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Board also notes that in September 2011, the Appeals Management Center (AMC) identified an inferred issue of service connection for peripheral neuropathy associated with the Veteran's service-connected back disability. However, such a claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In the JMR, the parties argued that the August 2010 examination provided to the Veteran in compliance with the Board's March 2010 remand decision was inadequate because the examiner failed to provide sufficient rationale for his opinion that the Veteran's chronic obstructive pulmonary disease (COPD) was not caused by or a result of asbestos exposure. The parties agreed that, upon remand, a new VA medical opinion should be obtained that provides an etiology opinion as to whether the Veteran's current lung disease(s) are related to service, including his exposure to asbestos. The parties also agreed that the Board's statement of reasons or bases was inadequate with regard to the discussion of the Veteran's COPD being related to a history of tobacco use. Specifically, the parties indicated that the VA examiner did not clearly opine that the Veteran's COPD was related to smoking. Thus, a VA examination and opinion are needed prior to further consideration of the claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the precise nature and etiology of the Veteran's current lung disease(s), to include exposure to asbestos. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner must review all pertinent evidence of record and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current lung diseases began during service or are otherwise linked to service, to include exposure to asbestos. A review of the Court joint motion for remand of March 2013 may assist the examiner in understanding what the Board is required to do in this case. A rationale should be given for all opinions and conclusions expressed and should not be solely based on the absence of treatment records during or after service. If an opinion cannot be rendered without resorting to speculation, the VA examiner should explain why it would be speculative to respond. 2. Thereafter, readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. Then return the case to the Board, if in order. 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. 2013). _________________________________________________ JOHN J. CROWLEY 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).