Citation Nr: 1634638	
Decision Date: 09/02/16    Archive Date: 09/09/16

DOCKET NO.  13-23 024	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD).

2.  Entitlement to service connection for gastroesophageal reflux disorder.

3.  Entitlement to service connection for thyroid disease.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Fagan, Counsel


INTRODUCTION

The Veteran served on active duty from March 1966 to March 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky, where benefits claims involving contaminated water at Camp Lejeune are processed.  

The Veteran was afforded a video conference hearing in May 2016, and a transcript is of record.

The issue of service connection for COPD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

During his hearing on May 17, 2016, prior to the promulgation of a decision by the Board, the Veteran testified on the record that he wishes to withdraw from appellate review his claims for service connection for GERD and thyroid disease.


CONCLUSION OF LAW

The criteria for withdrawal of the claims for service connection for GERD and thyroid disease have been met.  38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

In May 2016, the Veteran and his authorized representative testified on the record that the Veteran wishes to withdraw his claims for service connection for GERD and service connection for thyroid disease from appellate review.  Under 38 C.F.R. § 20.204, an appeal may be withdrawn on the record during a hearing or in writing at any time before the Board promulgates a decision.  Thus, the May 2016 testimony on the record satisfied the criteria for withdrawal of the Veteran's substantive appeal as to the issues of entitlement to service connection for GERD and entitlement to service connection for thyroid disease.  38 C.F.R. § 20.204 (2015).

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105(d)(5) (West 2014).  As the claims of entitlement to service connection for GERD and entitlement to service connection for thyroid disease have been withdrawn, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal as to those issues, and they are dismissed.


ORDER

The appeal on the issue of entitlement to service connection for GERD is dismissed.

The appeal on the issue of entitlement to service connection for thyroid disease is dismissed.





REMAND

The Board finds that additional development is necessary prior to adjudication of the Veteran's claim for service connection for chronic obstructive pulmonary disease.

The Veteran claims that his current COPD is the result of exposures in service, to include exposure to contaminated water at Camp Lejeune, and to asbestos while serving in a warehouse at Camp Lejeune.  He also asserts that he served aboard a ship, the "LST 1156 Troop ship" with the Fleet Marine Force, but that his records do not reflect that because he was on his Major's orders along with two cooks.  He also may or may not be claiming service in Vietnam, as he asserted foreign service and entitlement to a Vietnam Service Medal in an October 2007 written statement.  Available personnel records show that the Veteran was stationed at Camp Lejeune as a warehouseman during his active duty service, but do not otherwise show foreign or sea service.  Thus, on remand, the Veteran should clarify whether he is claiming service in Vietnam, and further efforts should be made to verify the Veteran's claimed exposures, to include asbestos aboard a ship.

The Board also finds that a VA examination and medical opinion are necessary.  With regard to veterans who served at Camp Lejeune between 1957 and 1987, such as the Veteran, VA has recognized potential exposure to contaminants present in the base water supply prior to 1987.  See Veterans Benefits Administration (VBA) Training Letter 10-03 (April 26, 2010).  Thus, exposure to contaminants in service is conceded.  Additionally, private treatment records show that the Veteran has been diagnosed with COPD and, while a September 2006 chest x-ray was negative, a prior May 2005 chest x-ray report notes a finding of "old granulomatous disease."  Finally, the Veteran submitted an undated medical opinion which stated that, regarding COPD, it is "least likely as not the disability from drinking the contaminated water at Camp Lejeune."  Notably, that opinion is unsupported by any rationale and does not address or acknowledge the Veteran's smoking history, or his March 1969 post-service work in a plant receiving department, where he received all raw materials coming into the plant, and March 1970 post service work as a boxcar checker for a chair upholstery company, which required him to check the cars as they were being loaded with chairs.  Thus, the opinion is insufficient to warrant a grant of service connection at this time.  Nevertheless, it supports an association between the Veteran's COPD and his service and, thus, the Board finds that a VA examination is necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Finally, in the undated opinion, the physician stated that he has been treating the Veteran for various long-term disabilities, including COPD.  As only limited private treatment records regarding COPD have been associated with the claims file, efforts should be made to ensure that all of the relevant treatment records have been obtained.

Accordingly, the case is REMANDED for the following action:

1.  Contact the appellant and request that he furnish the names, addresses, and dates of treatment from all medical providers from whom he received treatment for COPD since service, to include Dr. Derek Cooze.  After securing any necessary releases, the AOJ should request any relevant records identified which are not duplicates of those contained in the claims file.  If any requested records are unavailable, then the file should be annotated as such and the appellant should be so notified.

2.  Send the Veteran a letter requesting additional details regarding his claimed exposures, to include whether he is claiming service in Vietnam, the specific places/buildings where he was exposed to asbestos in service, and whether there was any occupational or other asbestos exposure before and after service. 
 
3.  Contact the National Personnel Records Center (NPRC), or other appropriate records repository, in order to verify asbestos exposure. 
 
4.  After the above has been completed to the extent possible, schedule the Veteran for a VA pulmonary examination.  The Veteran's claims file should be reviewed by the examiner in conjunction with the examination.  The examiner should complete all indicated diagnostic tests and studies, to include pulmonary function testing.  The examiner should clearly list all current lung disabilities diagnosed on examination, and specifically indicate whether the evidence supports a diagnosis of asbestos-related disease. 

The examiner should then offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's COPD or any other diagnosed lung disorder is causally related to service, to include the Veteran's conceded exposure to contaminated water at Camp Lejeune, or his claimed exposure to asbestos.  In issuing the opinions, the examiner should address all relevant evidence and test findings of record, including the May 2005 private report of a chest x-ray documenting old granulomatous disease.

The examiner must provide a complete rationale for all opinions and conclusions reached.  If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide a detailed explanation as to why such an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.)

5.  After completion of the above and any additional development deemed necessary, review the expanded record and determine if the claim can be granted. If additional development is deemed necessary in response to the above, such should be accomplished. If the claims remain denied, issue a supplemental statement of the case and afford the appellant and her representative an opportunity to respond. Thereafter, return the case to the Board for appellate review, if in order.

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).



______________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs