Citation Nr: 1337540 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-29 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (claimed as asbestosis and breathing problems). REPRESENTATION Veteran represented by: Jeffrey E. Marion, Esquire ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development must be accomplished prior to further consideration of the Veteran's appeal. The Veteran contends that his current respiratory disorder is the result of his exposure to asbestos during his military service aboard the USS El Paso LKA 117. In a February 2010 statement, he indicated that he was exposed to asbestos while sleeping under asbestos covered pipes in the sleeping quarters and while conducting regular operations and maintenance work aboard the ship. Based on the record, the RO noted that there was a minimal probability of asbestos exposure while in service. The Veteran's service treatment records show that in July 1972, the Veteran was assessed with an upper respiratory infection. In August 1972, he was treated for strep throat, a cough and congestion. In March 1975, the Veteran was treated for a cough, congestion and swelling of the throat. Post-service VA treatment records show that in September 2009 and November 2009, the Veteran's chest x-rays showed abnormal results. In a December 2009 treatment report, the Veteran results of a CT scan were reported, and the clinician diagnosed COPD and asbestosis. The Veteran was afforded a VA examination in May 2010. The Veteran provided his medical history which included bronchitis and pneumonia. The examiner reviewed x-rays taken in September 2009 and November 2009 and diagnosed the Veteran with COPD. The examiner stated that is was less likely than not that the Veteran's COPD was related to his military service. The examiner reported that it was more likely due to the Veteran's history of smoking. The examiner further noted that the abnormalities seen in the chest x-ray and CAT scan were more consistent with a previous lung infection and COPD and were not found to be secondary to asbestos. In an addendum, the examiner noted the Veteran's complaints and treatment while in service, to include the upper respiratory infection diagnosis, diagnosis of strep throat and complaints of congestion and coughing. While the VA examiner opined that the abnormalities on the x-ray and CAT scan were more consistent with a previous lung infection and COPD, he did not discuss if the "previous lung infections" were those referenced in the addendum of the examination report, to include an upper respiratory infection treated in service, or were post-service respiratory conditions reported by the Veteran during his examination. Therefore, the claims file and examination report should be returned to the examiner who conducted the May 2010 VA examination, if available, for clarification. In addition, relevant medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records dated since January 2010 from the North Texas Health Care System. 2. Please return the claims file and the May 2010 examination report to the examiner who conducted that examination, if available, for an addendum opinion. If further examination is necessary, such should be scheduled. If the original examiner is not available, the claims file should be forwarded to another physician to obtain the requested opinion. Following a review of the claims file, the examiner should clarify whether the "previous lung infections"( referenced as a partial cause of abnormalities found on the Veteran's chest x-rays and CAT scan) are at least as likely as not (50% probability or greater) related to the upper respiratory infections and complaints noted in service. Please explain the reasons for your conclusion. 3. After completion of the above development, the Veteran's claim should be readjudicated. If the claim remains denied, he and his representative should be provided with a supplemental statement of the case and be given an opportunity to respond thereto. Thereafter, the case should be returned 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. 2012). _________________________________________________ K. A. BANFIELD 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).