Citation Nr: 1760263
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-13 366 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana

THE ISSUE

Entitlement to a compensable rating for asbestosis.

REPRESENTATION

Veteran represented by: The American Legion

ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel

INTRODUCTION

The Veteran had active service in the Navy from December 1967 to December 1970.

This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

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

REMAND

The Veteran was afforded a VA examination for his asbestosis in June 2012. Afterwards, the Veteran reported that the examiner only interviewed him and conducted no objective medical tests. Indeed, the VA examination report shows that the examiner merely reviewed pulmonary function tests from 2010.

As such, the Veteran should be afforded a new VA examination with the appropriate testing being conducted.

Accordingly, the case is REMANDED for the following action:

1. Obtain VA treatment records from March 2012 to the present.

2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected asbestosis. All necessary testing needed for rating, to include a new pulmonary function test, should be performed.

3. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The case should then be returned to the Board, if in order, for further review.

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. §§ 5109B, 7112 (2012).

_________________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans’ Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).

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