Citation Nr: 1751266	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  08-35 122	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for residuals of pneumonia, now claimed as a lung disability, including as secondary to asbestos exposure.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

Gillian A. Flynn, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1946 to November 1947.  The Veteran passed away in October 2015.  In July 2017, the Veteran's daughter was substituted as the claimant.
  
This appeal comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  This matter was previously before the Board in June 2012 and November 2012. 

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

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


REMAND

In November 2012, the Board remanded this claim to afford the Veteran a VA examination.  The Veteran was unable to travel to attend a scheduled VA examination in 2014 due to the level of severity of his disability of Alzheimer's, which constitutes good cause.  Turk v. Peake, 21 Vet. App. 565 (2008); 38 C.F.R. § 3.655 (2017).

The record does not reflect that the RO obtained an adequate medical opinion after that based upon consideration of the Veteran's prior medical history and examinations and describing the Veteran's disability in sufficient detail.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  A physical examination is not required for a medical opinion to be adequate.  38 U.S.C.A. § 5103A; Ardison v. Brown, 6 Vet. App. 405 (1994).  Thus, the duty to assist has not been met and the matter must be remanded for further development and a medical opinion. 

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. Contact the service department or any other appropriate entity to attempt to verify the Veteran's alleged asbestos exposure while stationed aboard a ship as a cook.  

The RO should include the Veteran's confirmed assignments, his service dates, MOS, and any relevant service records as part of this request, as appropriate.

2.  Thereafter, obtain a medical opinion to determine the diagnosis and etiology of any pulmonary disability the Veteran had prior to his death.

The examiner should indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's pulmonary disabilities, whatever the particular or specific diagnosis, initially manifested during his service from January 1946 to November 1947 or is otherwise related or attributable to his service, including especially to his purported exposure to asbestos while stationed aboard Navy vessels (if it is first confirmed exposure occurred) and/or the result of his bout of pneumonia during service in July 1946.

In making this determination, the examiner should consider all evidence of record, to include evidence of the Veteran's tobacco use (which cannot be a basis for direct service connection).

3.  Then, readjudicate the claim on its underlying merits (so on a de novo basis) in light of all additional evidence obtained.  If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to Board.

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.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).





_________________________________________________
Nathaniel J. Doan
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 the appeal.  38 C.F.R. § 20.1100(b) (2017).