Citation Nr: 1603973 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-23 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a lung disability, to include emphysema or asthma, including as due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and EAJ ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1966 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran, and another witness, testified before the undersigned at a Videoconference hearing conducted in September 2014 from the Muskogee, Oklahoma, RO. The transcript of that hearing is associated with the Veteran's claims file. In a March 2015 decision, the Board denied the instant claim. The Veteran appealed. In a November 2015 order, the Court of Appeals for Veterans' Claims (Court) upheld a joint motion of the parties and remanded the instant claim back to the Board for action consistent with the joint motion. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 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 In the joint motion, the parties noted that a July 2013 VA medical examiner did not address an August 1968 service treatment record showing that the Veteran was treated for acute bronchitis and that the treating medical professional at that time had a strong suspicion that the Veteran had asthma. Consequently, the examiner's negative nexus opinion, relied on by the Board in its March 2015 decision, was deemed inadequate. Thus, the parties found that a remand was required so that the Board could obtain a new VA examination and medical opinion or seek clarification of the July 2013 opinion, to address whether it is at least as likely as not that the Veteran's current lung disabilities are etiologically related to service. Consequently, on remand, such a supplemental etiology opinion should be obtained. Prior to obtaining the opinion, the AOJ should obtain any records of VA treatment or evaluation for lung disability dated since July 2013. 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. Obtain any records of VA treatment or evaluation for lung disability dated since July 2013. 2. Obtain a supplemental opinion from the July 2013 VA examiner. The claims file must be reviewed by the examiner in conjunction with the provision of the opinion. This review should include the service treatment records, including the August 1968 service treatment record showing that the Veteran was treated for acute bronchitis and indicating the treating medical professional had a strong suspicion that he had asthma but this was unproven, the Veteran's October 1972 separation examination and his October 1972 report of medical history at separation; post-service medical treatment records pertaining to respiratory problems; the July 2013 VA examination report; the Veteran's September 2014 Board hearing testimony (pages 14-21 of the Board hearing transcript); and any other information deemed pertinent. The examiner should then provide a supplemental opinion as to whether it is at least as likely as not (i.e. a 50 percent chance or greater) that any current respiratory disability is related to service, including the August 1968 episode of acute bronchitis shown therein. The examiner should provide a specific rationale for the opinion provided. If the July 2013 VA examiner is unavailable or unable to provide the supplemental opinion, have another qualified professional provide the additional comment. This may require having the Veteran reexamined, but this is left to the designee's discretion. 3. Review the supplemental opinion to ensure that it is in complete compliance with the remand instructions. If not, take appropriate corrective action. 4. Readjudicate the claim. If it remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. 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). _________________________________________________ JOHN J. CROWLEY 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) (2015).