BVA9506502 DOCKET NO. 93-12 857 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. A. McDonald, Associate Counsel INTRODUCTION The veteran served on active duty from June 1956 to June 1958. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia (hereinafter RO). REMAND The Department of Veterans Affairs (hereinafter VA) has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The Board notes that the veteran submitted private medical evidence in support of his claim after the statement of the case was issued by the RO. However, a supplemental statement of the case was not furnished to the veteran in response to this evidence in order for the veteran to make the best possible argument on appeal. 38 C.F.R. §§ 19.31, 19.37 (1994). As documented in the record, the veteran's service medical records are unavailable, having been apparently destroyed in a fire at the National Personnel Records Center in 1973. As the United States Court of Veterans Appeals (hereinafter the Court) has indicated, the duty to assist a veteran in developing the facts pertinent to his claim "is heightened in a case such as this where service medical records are presumed destroyed and includes the obligation to search for alternate medical records." Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). See also, Moore v. Derwinski, 1 Vet.App. 401, 406 (1991). In a response dated May 1992, to a request for information from the RO, the veteran stated that he served in the Army reserves from 1958 to 1965. It does not appear that the RO attempted to obtain these records for review in determining the veteran's claim. Moreover, the veteran gave the name of coworkers and post-service employment information and it does not appear from the claims file that the RO considered or took action on this information. Furthermore, it is noted that the veteran retired on disability in 1990. The veteran's employment documents and any relevant medical evidence thereto, should be obtained for review. By rating action in August 1992, the RO denied service connection based on the veteran not having asbestosis, or an asbestos- related lung disease, at that time. However, the Board notes a diagnosis of asbestosis on VA outpatient treatment records in February 1992. In contrast with this diagnosis, pulmonary function tests conducted at a VA hospital record dated May 1992, do not find asbestosis. Private medical records dated in 1985 and 1987, received by the RO after the rating action, disclosed diagnoses of asbestosis and asbestos-related lung disease. It therefore appears that resolution of this conflict in diagnoses is required prior to appellate review. The Court has held that the "fulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination . . . ." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Moreover, this duty includes an additional VA examination by a specialist, when necessary. Hyder v. Derwinski, 1 Vet.App. 221 (1991). This examination should include "a medical opinion as to whether [the veteran's] current disabilities are in any way related to . . . service." Witherspoon v. Derwinski, 2 Vet.App. 4 (1991). The Board therefore concludes that a VA pulmonary examination would provide a record upon which a fair, equitable, and procedurally correct decision on the veteran's claim for entitlement to service connection for asbestosis or an asbestosis-related lung disorder, can be made. 38 C.F.R. §§ 3.326, 3.327 (1994). Accordingly, this case is remanded for the following actions: 1. The RO should obtain the veteran's service medical records while serving in the Army Reserves from 1958 to 1965 and incorporate this evidence into the claims file. 2. The RO should obtain the veteran's employment records from all post-service employment, to include Suwannee Store, Finn Brothers Garage, and Seaboard Coast Line Railroad, and all medical documentation relevant thereto. 3. The veteran should be afforded a VA pulmonary examination to determine the nature and extent of any current pulmonary disorder(s). The examination should be performed in accordance with Chapters 1 and 5 of the VA's PHYSICIAN'S GUIDE FOR DISABILITY EVALUATION EXAMINATIONS. All pertinent symptomatology, and findings should be reported in detail. All indicated studies and diagnostic tests should be performed. The examiner is requested to give an opinion regarding whether the etiology of the veteran's current pulmonary disorder(s), if any. The claims file must be made available to the examiner prior to the examination, for use in the study of the veteran's case. 4. A supplemental statement of the case should be issued to the veteran and his representative. The supplemental statement of the case should include a summary of all pertinent evidence of record, along with the legal criteria governing the claim. After allowing sufficient opportunity for the veteran to respond, the case, including any additional evidence, should then be returned to the Board for further appellate review. No action is required by the veteran until he receives further notice. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).