Citation Nr: 1723213 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 12-31 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a respiratory disability, to include as due to exposure to asbestos. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1961 to December 1962. This matter is before the Board of Veterans' Appeal (Board) on appeal from a March 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This matter was previously remanded by the Board in August 2016 and has been returned for appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends that he has a lung disability due to asbestos exposure in service. He reported that during Ammunition School he threw a lighted cigarette into a pile of powder that exploded causing burns to his face. See VA July 2003 Examination Report. Additionally, the Veteran asserted that he was exposed to asbestos in the ammunition crates and the pipes at Ammunition School. The Veteran reported that he has worked in coal mines, with car brakes, and other positions, which exposed him to asbestos (presumably after service). Pursuant to the Board's August 2016 remand, the Veteran was afforded an examination in September 2016. In relevant part, the examiner opined that the Veteran's respiratory disability was less likely than not incurred in or caused by service. The examiner noted that the Veteran had no significant airborne contaminant exposure during service and no evidence of asbestosis on CT scan. The Veteran had severe COPD with a history of smoking for twenty-nine years and ten years of employment in coal mines, and his problem was not related to service. The Board finds that this opinion is insufficient because the examiner failed to consider the Veteran's contention as to asbestos exposure in service as well the incident involving exploding powder in service. On remand, another opinion must be obtained. Accordingly, the case is REMANDED for the following actions: 1. Refer the case to the VA examiner who authored the September 2016 examination report for a supplemental opinion. If the same examiner is not available, the claims folder should be forwarded to another clinician. If the clinician determines that a VA examination is necessary in order to provide the requested information, then one should be scheduled. The examiner must review the entire claims file and provide an opinion as to whether it is it at least as likely as not (a 50 percent or greater probability) that any current respiratory disorder, to include COPD, was incurred during, or is otherwise related to, his active duty service, to include exposure to asbestos therein. The opinion must address the Veteran's lay contention of exposure to asbestos in service and explosion in service, as described above. The examiner must provide a complete rationale for any opinions expressed. 2. After completing the above, and any other development warranted as a consequence of the action taken in the preceding paragraph, the Veteran's claims 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. 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). 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). _________________________________________________ LANA K. JENG 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) (2016).