Citation Nr: 1724840	
Decision Date: 06/29/17    Archive Date: 07/10/17

DOCKET NO. 12-30 841A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Service connection for the cause of the Veteran's death. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel
INTRODUCTION

The Veteran served on active duty from March 1959 to January 1963. The Veteran died in December 2011. The appellant is the Veteran's surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In October 2015, the appellant testified before the undersigned Veterans Law Judge at a videoconference hearing. During the hearing, the undersigned engaged in a colloquy with the appellant toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.


REMAND

In a January 2016 decision, the Board denied the appellant's claim of service connection for the Veteran's death. The appellant appealed this decision to the Court of Appeals for Veterans Claims (CAVC), and the parties agreed to remand the issue to the Board on the basis that the Board failed to provide an adequate statement of reasons or bases for its determination. Specifically, the parties agreed that the January 2016 Board decision relied heavily on a December 2010 VA examination report, but did not adequately address evidence of record associated with the claims file after the December 2010 VA examination. See February 2017 Joint Motion for Remand. 


Accordingly, the case is REMANDED for the following actions:

1. Request that the appellant identify and secure any relevant private medical records that are not in the claims file. Attempt to obtain any records identified by the appellant and associate these records with the claims file.

2. Obtain any outstanding VA medical records and associate them with the claims file.

3. After completing the directives above, RETURN THE FILE TO THE December 2010 VA EXAMINER and request that she again review the file and respond to the below inquiries. 

THE EXAMINER IS ADVISED THAT BASED ON THE FACTS IN THIS CASE, SHE MUST RESPOND TO THE INQUIRIES BELOW, WITHOUT REGARD TO ANY VA EXAMINATION PROTOCOLS. 

Based upon a review of the relevant evidence, the December 2010 physical examination, and sound medical principles, the VA examiner should provide the following opinions:

a. Are the Veteran's COPD and emphysema etiologically related to his active service?

b. If yes, did the Veteran's COPD and emphysema cause the Veteran's death?

The examiner should discuss what significance may be attached to the lay contentions and service treatment records, as well as provide a rationale for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinions with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons must be so stated. The VA examiner should, in such case, explain why it would be speculative to respond.

In rendering the above opinions, the examiner must review and discuss the record. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following:

*The December 1960 service treatment record noting the Veteran experienced pain in his chest and coughing, and was diagnosed with diplococcus lobo pneumonitis;

*The February 1961 service treatment record noting the Veteran had a chronic cough;

*The Veteran's January 1963 separation examination, absent of any complaints of chest pain, coughing, or difficulty breathing;

*The July 2010 private treatment record noting the Veteran's diagnosis of COPD and his smoking history;
*The August 2010 statement from the Veteran detailing his asbestos exposure in service;

*The September 2011 private medical opinion reflecting pleural thickening with probable pleural calcifications in the bilateral lung apices;

*The September 2011 private treatment record noting biapical pleural thickening, and physician opinion opining that the Veteran's active service was as likely the cause of his COPD as his smoking history;

*The December 2011 VA treatment record noting "lung changes which could be related to asbestos";

*The January 2012 private medical opinion noting biapical pleural thickening;

*The February 2013 web article associating biapical pleural thickening with exposure to asbestos;

*The October 2015 hearing testimony where the appellant detailed the Veteran's account of the Veteran's exposure to asbestos. 

4. After completion of the above and any other appropriate development deemed necessary, readjudicate the issue on appeal on the basis of the additional evidence. If the determination remains adverse to the appellant, she and her representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

The appellant 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).



_________________________________________________
VITO A. CLEMENTI
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).