Citation Nr: 1106765 Decision Date: 02/18/11 Archive Date: 02/28/11 DOCKET NO. 08-06 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an unexplained cough, diagnosed as asthma, to include as due to a qualifying chronic disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from November 1987 to April 1988, November 1996 to July 1997, and September 2004 to January 2006. This matter arises before the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's claim. The RO afforded the Veteran with two examinations during the appeal period. The first examination in November 2006 resulted in a diagnosis of a recurrent dry cough, recurrent shortness of breath, and chronic dyspnea on exertion but failed to provide a nexus opinion. The June 2009 examiner diagnosed the Veteran with "obstructive respiratory" associated with asthma/reactive airway disease. However, he found that the Veteran's asthma was not caused by his active duty military service because the Veteran stated at the examination that his symptoms did not start until he returned home from Iraq. The Board finds that this opinion is inadequate because the examiner's rationale conflicts with the evidence of record. The record contains evidence of the Veteran's breathing difficulties in Iraq, including a report from the Medical Evaluation Board. The Veteran even submitted a buddy statement from the Captain who supervised him in Iraq, who stated, "Over the course of our year in Iraq, [the Veteran] began to increasingly suffer from labored breathing." The Board also observes that the Veteran's private treatment provider noted that he has had dyspnea since Iraq and that he was diagnosed with asthma as early as July 2007. Therefore, as the June 2009 opinion did not adequately consider the evidence of in-service breathing problems, the Board finds the opinion is not sufficient for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate). On remand, the AMC should obtain a supplemental opinion to determine whether the Veteran's currently diagnosed respiratory disease is related to his period of active military service and whether his complaints of troubled breathing after leaving service but before an official diagnosis was made were early manifestations of his currently diagnosed respiratory disease. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental opinion with respect to the Veteran's claimed respiratory disability. The examiner should provide an opinion regarding whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's respiratory disorder was incurred or aggravated as a result of active military service and whether his complaints of troubled breathing since leaving service but before an official diagnosis was made were early manifestations of his currently diagnosed respiratory disease. A discussion of the Veteran's post- service treatment records and evidence of breathing problems in service must be included in the examination report. Please send the claims folder to the compensation and pension examiner for a supplemental opinion. A new compensation and pension examination should only be conducted if the clinician preparing the new opinion deems one necessary. 2. After any additional development deemed necessary is accomplished, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law, as well as regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).