Citation Nr: 1339682 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-30 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a lung disability, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Taylor, Associate Counsel INTRODUCTION The Veteran had active military service from September 1978 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in April 2009 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran filed a timely notice of disagreement in March 2010. A review of the Virtual VA paperless claims processing system includes an Informal Hearing Presentation from the Veteran's representative dated in November 2013. Other documents on Virtual VA are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System (VBMS) does not include any documents at this time. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has COPD related to asbestos exposure during service. VA has conceded in-service exposure to asbestos due to the Veteran's military occupational specialty as a boiler technician. Under the duty to assist, a VA examination is necessary to determine whether the Veteran's current lung disability is related to his active duty service. Prior to arranging the VA examination requested above, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to include any treatment records dated from November 2009 to the present from the Kansas City VAMC. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of his current lung disability. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. The examiner is asked to: Provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's current lung disability is etiologically related to the Veteran's active service. In rendering the required opinion, the examiner is asked to presume that the Veteran was exposed to asbestos during service. The examiner should also note and discuss the significance, if any, of the Veteran's 40+ year history of smoking one to two packs of cigarettes per day and his post-service occupational history as a carpenter. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. All tests and studies deemed necessary should be conducted. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. After completion of the above requested development, and any other development deemed warranted by the record, the RO should adjudicate the claim in light of all pertinent evidence. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case, and afford them the opportunity to provide written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ DAVID L. WIGHT 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).