Citation Nr: 1528494 Decision Date: 07/02/15 Archive Date: 07/15/15 DOCKET NO. 12-20 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a respiratory disorder, including asbestosis, to include as due to exposure to asbestos. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to September 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction was subsequently transferred to the RO in Los Angeles, California. The Veteran testified at a Board video-conference hearing in February 2015 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The record was held open for 90 days until May 25, 2015 to allow the Veteran to submit additional evidence. In April 2015, the Veteran submitted additional evidence along with a waiver of such evidence. See 38 C.F.R. § 20.1304(c). As such, the Board may properly consider such evidence. As a final preliminary matter, the Board observes that this appeal was processed using the paperless, electronic Virtual VA and Veterans Benefit Management System (VBMS) claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has asserted that his respiratory disorder is related to asbestos exposure in service. Service treatment records are silent with respect to any complaints or diagnoses of any respiratory disorders. In fact, a September 1958 chest x-ray prior to discharge was negative. The RO initially denied the claim finding that the Veteran did not have a current diagnosis of a respiratory disorder. However, the Veteran has submitted post-service private treatment records showing that he has been diagnosed with asbestotic lung disease. A November 1997 private report showed that he was initially evaluated in April 1995 due to exposure to asbestos during his course of employment at C.C. In his hearing testimony, the Veteran asserted that he was exposed to asbestos while stationed onboard the USS Iowa (BB 61). Service personnel records showed that during active service, the Veteran was stationed on the USS Iowa as well as the USS Breckinridge. His military occupational specialty listed on his DD 214 was Steward's mate and he testified that he was a Boatswain's Mate, both which carry a minimal level of asbestos exposure. However, he further testified that his duties included chipping paint, painting and sanding floors, some of which also occurred in the boiler room In this capacity, he claims that he was exposed to asbestos. In this regard, the Veteran's representative asserted at the Board hearing that the USS Iowa was a ship listed as having high amounts of asbestos on www.mesothelioma.com/asbestos-exposure. The Board takes judicial notice that certain other websites concerning asbestos exposure on Naval ships also indicate that all members onboard the USS Iowa were exposed to asbestos. The Veteran has not been afforded a VA examination with respect to this claim. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. In light of the evidence concerning possible asbestos exposure and a current diagnosis of an asbestos-related lung disorder, the Board finds that Veteran should be afforded a VA examination. Moreover, the Veteran testified that he receives Social Security Administration (SSA) disability benefits. However, it does not appear that the Veteran's SSA records have been requested. Thus, the AOJ should obtain the administrative decisions pertaining to the veteran's claim and any underlying medical records from the SSA. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the SSA, including decisions by the administrative law judge); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran also testified to receiving private treatment for his lung disorder from Hollywood Presbyterian Hospital in Los Angeles, Dr. S.G. in Los Angeles, and Dr. N.A in La Puenta, California. Although the Veteran submitted some private records from Dr. S.G. and the AOJ has requested records from this provider to which he has not responded, the remaining private treatment records have not been associated with the record. As such, on remand, the Veteran should be given an opportunity to identify any other outstanding private treatment records and submit appropriate authorization so that these records can be obtained. Lastly, the Board notes that the Veteran has reported receiving ongoing VA treatment. The Veteran's VBMS record contains VA treatments records dated from January 2006 to January 2008 from the Loma Linda, California VA Medical Center (VAMC). Moreover, although the statement of the case also indicates that treatment records from the West Los Angeles, California VAMC dated from October 1991 to February 2012 were also reviewed. These records are not currently associated with the record. As VA records are constructively of record, the Board finds that all VA treatment records from the West Los Angeles VAMC dated from October 1991 to the present and any additional records from the Loma Linda VAMC dated from January 2008 to the present should be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should contact the Social Security Administration and obtain copies of all administrative decisions (with associated medical records) pertaining to any claim for disability benefits by the Veteran. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The AOJ should take appropriate actions to obtain outstanding private treatment records that have not already been associated with the record, to specifically include from Hollywood Presbyterian Hospital in Los Angeles, Dr. S.G. in Los Angeles, and Dr. N.A in La Puenta, California. After obtaining any necessary authorization from the Veteran (i.e., a completed and signed VA Form 21-4142) as well as any additional information deemed necessary, the AOJ should request any additional private treatment records. The AOJ should make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. The AOJ should obtain the Veteran's VA treatment records from the West Los Angeles VAMC dated from October 1991 to the present and any additional records from the Loma Linda VAMC dated from January 2008 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After obtaining any outstanding treatment records, the Veteran should be afforded a VA pulmonary/respiratory examination by an appropriate VA examiner in order to determine whether he has a respiratory disorder related to military service. It is imperative that the electronic record be made available to the examiner for review in connection with the examination, to specifically include these remand instructions. The examiner must be informed of the Veteran's correct military history, including the dates of active service, branch, and claimed asbestos exposure. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should clearly delineate all lung disorders, including asbestosis, and then determine whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed lung disorder was due to the claimed asbestos exposure in service. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 2014). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).