Citation Nr: 1531410 Decision Date: 07/23/15 Archive Date: 08/05/15 DOCKET NO. 08-13 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disorder (COPD) and asbestosis, also claimed secondary to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran had a hearing before a Decision Review Officer (DRO) at the RO in November 2011 and the transcript is of record. The case was brought before the Board in April 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him a DRO hearing as requested. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends he has chronic lung related problems under various theories. He indicates he was hospitalized for four months while on active duty due to pneumonia and complications from pneumonia. He claims the pneumonia caused chronic scarring to his lungs, which in turn caused chronic lung related problems. Alternatively, the Veteran indicates ongoing exposure to asbestos in the military working as a dental technician where asbestos was routinely used for prosthetic teeth and casting rings. Service records confirm the Veteran's MOS as a dental technician although do not indicate asbestos exposure specifically. His service treatment records further confirm a nearly four month hospitalization in 1966 for right streptococcal pneumonia and empyema. While hospitalized, the Veteran was given a thoracentesis and a closed tube thoracotomy. He was then discharged to active duty in May 1966. His separation examination in December 1969 indicates a negative chest X-ray and no significant residuals from his history of pneumonia. After service, the Veteran indicates he worked as a dental technician for an additional forty years until he had to retire for breathing problems in 2009. A note in the claims file indicates that Social Security Administration (SSA) disability records were obtained on a CD. The actual records have not been added to the claims file, nor is there any way for the Board to review these records. Additionally, the Veteran submitted a private record dated August 2011 from a Dr. Armendariz. The document indicates it is three pages, but only page 2 is of record, which notes diagnoses of COPD and asbestosis. Therein, Dr. Armendariz also notes, "lung scars due to asbestos exposure, but also may be secondary to severe pneumonia in the 1960s." In light of the missing records, the RO/AMC must add the SSA records to the claims file, or make a new request for SSA records if they are no longer available to be added, and must make efforts to obtain the missing pages from Dr. Armendariz's report. The RO/AMC must also take this opportunity to obtain any other additional records, to include VA outpatient treatment records from June 2013 to the present. The Veteran was afforded VA examinations in December 2011 and October 2012. These medical opinions combined found it unlikely that the Veteran's current COPD and emphysema is due to in-service pneumonia or in-service asbestos exposure. Both of these examiners confirmed the presence of chronic lung scarring at least partially attributable to the Veteran's in-service pneumonia, but neither examiner specifically opined whether the Veteran has any chronic lung disorder attributable, in full or in part, to the in-service pneumonia or resulting lung scarring. In light of the incomplete opinion and the missing records, the Board concludes a new VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran dated from June 2013 to the present. All attempts to obtain these records must be documented in the claims file. 2. Ask the Veteran to specifically supply a release form for Dr. Armendariz's records. Inform the Veteran that only page 2 of 3 of Dr. Armendariz's August 2011 report is currently of record. The RO must make at least two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If records are identified but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain the records, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 3. Undertake appropriate development to associate SSA disability records with the Veteran's file, either by including the records that were contained on the CD or by making a new request to the Social Security Administration for all records associated with the Veteran's claim for Social Security benefits. 4. After obtaining the above records, to the extent available, schedule the Veteran for an appropriate VA examination for his claimed lung disorders to determine the extent and likely etiology of any lung disorder found, to include COPD, asbestosis, emphysema, or chronic lung scarring. The claims folder must be reviewed by the examiner. All necessary special studies or tests are to be accomplished. The examiner is asked to consider the Veteran's in-service complaints and treatment for double pneumonia in 1966 with a four month hospitalization. The examiner is also to presume in-service exposure to asbestos for purposes of this examination. The examiner is also asked to consider post-service treatment records showing consistent findings of chronic lung scarring and at least one doctor diagnosing the Veteran with asbestosis. Based on the Veteran's contentions, physical examination, and a complete review of the claims file, the examiner is to identify any and all lung disorders found. For each lung disorder diagnosed, the examiner should opine as to whether it is "at least as likely as not" that such condition is directly related to some aspect of the Veteran's period of service, to include his 1966 bout of pneumonia. The examiner should specifically consider the record of in-service treatment, symptoms, and complaints. For each lung disorder diagnosed, the examiner should also provide an opinion as to whether it is "at least as likely as not" that such disorder is related to in-service asbestos exposure. The examiner is also asked to clarify whether the Veteran's chronic lung scarring is in whole or in part attributable to his in-service pneumonia and, if so, whether he has a chronic lung disorder due to the scarring. The rationale for all opinions expressed must also be provided. 4. The RO/AMC must notify the Veteran that it is his responsibility to report for the scheduled VA examination(s) and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 5. Thereafter, readjudicate the Veteran's issue remaining on appeal. If the claim remains denied, provide the Veteran a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response 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). The 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).