Citation Nr: 1802005 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 08-22 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lung disorder, to include asbestosis and/or squamous cell carcinoma (SCC). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1958 to July 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The case is currently under the jurisdiction of the VA RO in Houston, Texas. In February 2011, the Veteran presented sworn during a Travel Board hearing in Houston, Texas, which was chaired by a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file. A December 2011 letter notified the Veteran that the VLJ who conducted the February 2011 hearing is no longer employed at the Board and offered him an opportunity to testify at another hearing. The Veteran responded that he would like another hearing. However, documentation of this request was not available to the Board at the time of its initial review of the file and the Board issued a denial of this claim in March 2012 without affording the Veteran a new hearing. This denial was vacated in December 2017 and the Veteran was afforded another opportunity for a hearing before a different VLJ. The Veteran withdrew his request for a second hearing in November 2017 and the initial service connection claim is once again before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND Although the Board regrets the delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran's claim. The Veteran was most recently afforded a VA examination for his claimed lung disorder in July 2011. At that time, the examiner concluded that he did not have asbestosis or any lung disorder related to asbestosis. However, the Veteran has indicated that he was subsequently diagnosed with non-malignant disease related to asbestosis by Dr. J. T. S. in February 2013 or February 2015. See VA Form 9, May 2017. In light of this possible new diagnosis and the length of time since the Veteran's last VA examination, the Board finds that a new VA examination and opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, as the case is being remanded, the Board will take the opportunity to obtain any updated VA or private treatment records, particularly those from Dr. J. T. S. Accordingly, the case is REMANDED for the following actions: (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 and associate with the claims file any outstanding VA treatment records from the Houston VA Medical Center and any other VA facility identified by the Veteran. All attempts to obtain these records should be documented in the claims file. 2. Contact the Veteran and ask him to provide a signed release of information for any outstanding treatment records relating to his claim on appeal. The Veteran should specifically be asked to provide a release for any post-2002 records from Dr. J. T. S. If the Veteran returns a completed release of information, the AOJ should obtain these records and associate them with the claims file. The Veteran should also be invited to submit copies of any relevant treatment records in his possession. 3. Thereafter, schedule the Veteran for VA examination with an appropriate examiner to address the nature and etiology of his claimed lung disability. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner must identify any current lung disability, to include any that have resolved during the appeals period (January 2007 to the present). Any necessary testing should be completed, including relevant imaging. S/he should then state whether it is at least as likely as not (a 50 percent probability or greater) that each such disability that had its onset in service or was otherwise etiologically related to active service, including the conceded asbestos exposure. The examiner should specifically address the articles submitted by the Veteran in September 2017 and his argument that the 10 to 45 year latency period for asbestos-related lung diseases supports his claim. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above actions, the Veteran's claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).