Citation Nr: 1123173 Decision Date: 06/16/11 Archive Date: 06/28/11 DOCKET NO. 06-34 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a bronchial disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Heather M. Gogola, Counsel INTRODUCTION The Veteran served on active duty from September 1948 to November 1951. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board notes that when this matter was previously before the Board in November 2009, it was remanded for further development. Moreover, in February 2011, this matter was sent for an independent medical opinion. 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 The Veteran contends that he has a bronchial disability related to his active service. The Veteran stated that he was exposed to dust as they were taken on truck rides to the outskirts of various towns while on missions. He stated that at that time, he began to cough, spit mud balls, and get chest pains. He has also asserted that he was exposed to fires as well as dead bodies while stationed in Korea. The Veteran has alternatively argued that his respiratory problems began following a tonsillectomy in 1949. At the outset, the Board notes that in September 1965, the Veteran reopened a previously denied claim for service connection for a bronchial condition, and in May 1966 the RO issued a statement of the case on the issue. In June 1966 the Veteran filed an appeal in which he addressed the chest condition, and in a December 1966 remand, the Board listed the issue of entitlement to service connection for a chest condition as being properly before it. However, in its April 1968 decision, the Board did not address the issue of entitlement to service connection for a bronchial condition. In the Board's November 2009 remand, the Board found that this issue has remained pending since that time. Furthermore, the Board in its November 2009 decision reopened the claim for service connection for a bronchial condition and remanded for further development. In February 2010, the Veteran was afforded a VA examination for his bronchial disability. The examiner found the Veteran currently had a moderate obstructive airway disease that was less likely related to his one episode of acute bronchitis in service. In an August 2010 addendum, the examiner noted the Veteran's 30 year history of cigarette smoking and stated that numerous epidemiological studies indicated that cigarette smoking was overwhelmingly the most important risk factor for COPD. She further stated that 80 to 90 percent of COPD cases were caused by smoking, and that after reviewing all the evidence, she concluded that the Veteran's moderate obstructive airway disease was at least as likely as not due to his cigarette smoking with early exacerbations noted once during service and after discharge. Following the 2010 VA examination and addendum, the Board found that further medical opinion was necessary to clarify whether the Veteran had a current bronchial condition that was at least as likely as not related to the Veteran's active service. As such, in February 2011, an independent medical examination by a pulmonologist was requested to answer the question. The examiner was also asked to reference the in-service findings as well as the findings made by the Veteran's private physicians. A complete and detailed rationale for any opinion provided was requested. Unfortunately, the pulmonologist failed to fully answer the questions asked in the February 2011 request for independent medical review. Regarding the question of whether the Veteran's current bronchial disability was etiologically related to service, the pulmonologist stated that the Veteran began smoking at age 11, and thus estimated that his cigarette dose to be well in excess of 50 pack years. Further the examiner indicated that the Veteran's current complaints as well as x-rays and pulmonary function test findings were diagnostic of chronic obstructive pulmonary disease (COPD), however, other causes of obstructive lung disease, particularly bronchiectasis, could not be excluded without a high resolution CT scan of the chest. Moreover, the examiner stated that brief exposures to pulmonary toxins of high intensity could be associated with irreversible injury to the airways (bronchiectasis). However, the available data neither supported nor provided evidence against the diagnosis of bronchiectasis. Unfortunately, the examiner failed to address the Veteran's service treatment records, the Veteran's statements regarding exposure to potential irritants, and the private treatment records showing treatment in the 1950s and 1960s. Nor did he address whether the Veteran had broncheictasis related to the Veteran's alleged exposures. Further, the examiner appears to have mis-interpreted a statement from the Veteran indicating that he began smoking at age 11. Instead, the Veteran has stated that he began smoking at age 18, smoked for 20 years, and has been smoke free for the last 40 years. In light of the examiner's opinion that bronchiectasis could not be ruled out without at CT scan of the chest, as well as his statement that brief exposures of pulmonary toxins could be associated with bronchiectasis, the Board has determined that the Veteran should be afforded another VA examination to determine the etiology of his current obstructive airway disease. Further, the examiner stated that it was likely that the Veteran's ongoing use of cigarettes was at least in part connected to his military service, particularly due to the Veteran's diagnosed PTSD. The examiner stated that whether the Veteran's addiction to cigarettes and subsequent COPD was more or less likely related to military service was outside his expertise. Thus, the Board notes that in view of the medical opinion suggesting a possible relationship between the Veteran's tobacco use and subsequent development of obstructive airway disease and the Veteran's service-connected PTSD, the VA is required to obtain a medical opinion to address the relationship, if any, between the Veteran's PTSD and nicotine dependence. Finally, the Board notes that the Veteran, in an October 2010 statement, indicated that his bronchial problems began shortly after undergoing a tonsillectomy in 1949. He essentially contends that the procedure was done without anesthetic and that his airway was blocked during the operation. The Veteran is service-connected for residuals of a tonsillectomy. As such the Veteran is essentially alleging that his current bronchial condition is secondary to his service-connected residuals of tonsillectomy. Thus, the VA is also required to obtain a medical opinion addressing this relationship, if any. 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) (2010). Expedited handling is requested.) 1. The Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the etiology of his pulmonary disorders. The claims file must be provided to and reviewed by the examiner. Based on the review of the Veteran's pertinent history and the examination results, the examiner should provide an opinion with respect to each pulmonary disorder present during the period of this claim as to whether it is at least as likely as not (a 50 percent or better probability) that the disorder is etiologically related to his active service. In providing the opinion, the examiner should address the Veteran's service treatment records, private treatment records from Dr. Gavin and Dr. Wilcox, the 2010 VA examination, the 2011 independent medical examination, the Veteran's smoking history, and the Veteran's contentions of exposure to mud, dust, forest fires, and dead bodies during active service. The examiner should also provide an opinion as to whether the Veteran's service-connected residuals of tonsillectomy, caused or aggravated (made permanently worse) any current bronchial disability. If aggravation is found, the examiner must identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the disorder by the service-connected disability. All indicated evaluations, studies, and tests, to include a CT scan, should be accomplished, and any such results must be included in the examination report. The rationale for each opinion expressed must be provided. If the examiner is unable to provide any required opinion, the examiner should explain why the opinion cannot be provided. 2. The Veteran should be afforded a VA psychiatric examination by a physician with sufficient expertise to determine the etiology of his nicotine dependence. The claims file must be provided to and reviewed by the examiner. Based on the review of the Veteran's pertinent history and the examination results, the examiner should provide an opinion as to whether the Veteran's service-connected PTSD caused or aggravated (made permanently worse) any current bronchial disability. Specifically, the examiner should address the suggested relationship between the Veteran's PTSD and nicotine dependence with subsequent development of COPD. If aggravation is found, the examiner must identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the disorder by the service-connected disability. 3. Then, the RO or the AMC should readjudicate the Veteran's claim. If the benefits sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided an appropriate supplemental statement of the case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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). _________________________________________________ MICHAEL MARTIN Acting 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).