Citation Nr: 1339632 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-20 892 ) 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 chronic obstructive pulmonary disorder (COPD) and asthma. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's claim. The Veteran requested a personal hearing in his April 2010 VA Form 9; however, he subsequently withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). See the statement of the Veteran's representative dated September 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND For the reasons set forth below, the Board finds that the issue on appeal must be remanded for further development. In this regard, the Board notes that, generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran claims that he has been diagnosed with a respiratory disorder, to include COPD and asthma, which is due to his military service. Specifically, the Veteran contends that he developed a respiratory disorder as a result of exposure to hazardous chemicals including paints, thinners, solvents, and cleaning fluids during his military service. See, e.g., the Veteran's statements dated February 2007 and April 2007. He has additionally asserted exposure to asbestos and herbicides. Id. To this end, the Board observes that the Veteran's contentions of exposure to hazardous chemicals are consistent with his military occupational specialty (MOS) of airframe repairmen. Additionally, his service personnel records confirm that he was stationed in the Republic of Vietnam. Therefore, his in-service exposure to herbicides is conceded. See 38 U.S.C.A. § 1116(f) (West 2002). With respect to asbestos exposure, the Board notes that the Veteran served aboard the U.S.N.S. CORPUS CHRISTI, a refurbished World War II-era ship which served as a helicopter repair ship from 1965 to 1974. A review of the record indicates that the RO has conceded the Veteran's claimed asbestos exposure. It is undisputed that the Veteran is currently diagnosed with COPD and asthma. See the private treatment records dated October 2007 and November 2007. In support of his claim, the Veteran has submitted medical nexus opinions. However, these March 2009 and May 2009 statements by Dr. S.S. and Dr. M.H. are admittedly speculative and provided no rationale to support the conclusions rendered. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). Additionally, the Veteran was afforded a VA examination in November 2008 at which time the examiner indicated he was diagnosed with COPD in 2007 and was noted to have a history of asthma at that time. The examiner concluded that, "it is less likely as not that the COPD is related to asbestos exposure. There is no evidence or diagnosis radiologically of asbestosis in any of the medical reports that I have reviewed." However, the examiner did not address whether the Veteran's in-service exposure to hazardous chemicals (including paint, thinners, solvents, and cleaning fluids) caused or aggravated his currently diagnosed respiratory disorder. Further, the examiner did not opine as to whether the Veteran's presumed in-service herbicide exposure caused or aggravated the currently diagnosed respiratory disorder. Thus, there is insufficient evidence of record addressing the issue of nexus. The Board therefore finds that, on remand, the agency of original jurisdiction (AOJ) must schedule the Veteran for a VA medical opinion that addresses the etiology of his claimed respiratory disabilities. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); see also Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Thus, on remand the Veteran should be afforded a VA medical opinion to address these outstanding questions concerning nexus. Moreover, on remand, any outstanding relevant medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. All such available documents should be associated with the claims file. 2. Then, VBA should refer the VA claims file to the physician who conducted the November 2008 VA examination; if he is unavailable the claims file should be referred to a physician with appropriate expertise. The Veteran does not need to be examined. The examiner is requested to review the claims file in its entirety. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that each diagnosed respiratory disability had its clinical onset in service or is otherwise related to a disease or injury incurred in service, to include the Veteran's conceded exposure to hazardous chemicals and herbicides while in Vietnam. The examiner should also opine as to whether the Veteran's diagnosed respiratory disability is related to his in-service exposure to asbestos. In answering these questions, the examiner should obtain from the Veteran a complete medical history to include information concerning the onset of symptoms. The examiner should provide medical reasons for accepting or rejecting the Veteran's statements of continued symptoms since service. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. Thereafter, readjudicate the claim on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).