Citation Nr: 1336091 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-06 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a lung condition due to exposure to asbestos. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from March 1960 to February 1963, and in the Navy from June 1964 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied entitlement to service connection for a lung condition. In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. 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 The Board finds that additional development is warranted prior to adjudication of the Veteran's claim. A review of the Veteran's service treatment records reflects no in-service complaints, treatment, or diagnoses of a lung disability. However, his personnel records reflect that he worked as an auto mechanic and armor crewman during a portion of his service in the Army, and an aviation boatswain's mate during his service in the Navy. The RO has noted that the Veteran's occupation during his naval service is associated with a probability of exposure to asbestos. The Veteran claims that he has a lung disability as a result of that exposure. Following a January 2011 VA examination, the Veteran was diagnosed with moderate obstructive airways disease. The VA examiner opined that his shortness of breath was not due to or related to in-service exposure to asbestos, because exposure to asbestos causes restrictive airway disease, not obstructive airway disease. Subsequently, the Veteran reported receiving treatment due to difficulty breathing and submitted private medical records reflecting hospitalization during the period between June 16, 2011 and June 27, 2011. The Veteran was diagnosed upon discharge with several respiratory conditions, notably empyema, community-acquired pneumonia, obstructive sleep apnea and pleural effusion status post thoracentesis. The submitted private treatment records include numerous chest x-rays, but do not detail the precise etiology of the diagnosed respiratory conditions, nor do they discuss any relationship between the conditions and exposure to asbestos during the Veteran's military service. VA has issued certain procedures on asbestos-related diseases which provide guidelines for use in the consideration of compensation claims based on exposure to asbestos, and pleural effusions are on the list of potentially asbestos-related disorders. See VA Adjudication Procedure Manual, 21-1 MR, Part 4, Subpart ii, Chapter 2, Section C, para. 9. (September 29, 2006); see also McGinty v. Brown, 4 Vet. App. 428 (1993). The January 2011 VA opinion was rendered prior to the hospitalization. Given the subsequent treatment, another VA examination and opinion is needed prior to an adjudication of the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for lung or respiratory complaints since June 2011. After securing the necessary release, the RO should obtain these records. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any current lung disability. Arrange for the entire claims file and any pertinent medical records to be made available for review by the examiner. The examiner should perform any diagnostic tests deemed necessary. The examiner should elicit from the Veteran a complete history of his complaints of a lung disability, including any medical treatment. Based on the examination and review of the record, the examiner should identify all currently diagnosed lung conditions and offer an opinion as to whether it at least as likely as not (50 percent or greater probability) that any diagnosed lung disability, including pleural effusion, was a result of the Veteran's in-service asbestos exposure (which has been conceded), or is otherwise related to the Veteran's active service. In providing the opinion, the examiner should specifically discuss the findings related to the June 2011 private hospitalization and the significance, if any, of the findings noted on chest x-rays conducted at that time. The rationale for all opinions should be provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, the RO must readjudicate the Veteran's claim seeking service connection for a lung condition. If the benefit is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond. The matters should then be returned to the Board for further appellate process. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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). _________________________________________________ M. E. LARKIN 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).