Citation Nr: 1140849 Decision Date: 11/03/11 Archive Date: 11/16/11 DOCKET NO. 09-03 500A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for respiratory disability to include chronic obstructive pulmonary disease (COPD) and asthma. 2. Entitlement to service connection for right hip disability. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Veteran, his spouse, and daughter ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1956 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated May 2007 and February 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the Veteran's claims. In January 2011, the Veteran presented sworn testimony during a personal hearing in Los Angeles, California, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. In May 2011, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a). The requested opinion has been provided and has been associated with the VA claims folder. The VHA opinion was provided to the Veteran and his representative. The Veteran was afforded 60 days to provide additional argument or evidence. The Veteran and his representative submitted additional argument in statements received in October 2011. The issue of entitlement to service connection for right hip disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. The medical evidence of record shows that the Veteran is currently diagnosed with COPD and asthma in addition to a nonspecific 0.4 cm. pulmonary nodularity in the right lung apex, calcified right inferior middle lobe granuloma. 2. The competent medical evidence of record does not support a finding that the Veteran's respiratory disability is related to his military service. CONCLUSION OF LAW A respiratory disability including COPD and asthma was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1101, 1110 (West Supp. 2011); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to service connection for a respiratory disability. As indicated above, the Veteran's claim of entitlement to service connection for right hip disability will be addressed in the Remand section below. In the interest of clarity, the Board will discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2011). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West Supp. 2011). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the veteran. See 38 U.S.C.A. § 5107 (West Supp. 2011); 38 C.F.R. § 3.102 (2011). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify a veteran and a veteran's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of this notice, VA is to specifically inform a veteran and a veteran's representative, if any, of which portion, if any, of the evidence is to be provided by a veteran and which part, if any, VA will attempt to obtain on behalf of a veteran. See 38 U.S.C.A. § 5103 (West Supp. 2011); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) (a letter from VA to an appellant describing evidence potentially helpful to the appellant, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA). After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied as to the issue of entitlement to service connection for respiratory disability. The Veteran was informed of the evidentiary requirements for service connection in letters dated June 2006 and July 2006. Crucially, the RO informed the Veteran of VA's duty to assist him in the development of his claim in the June 2006 and July 2006 VCAA letters. Specifically, the letters stated that VA would assist the Veteran in obtaining relevant records such as all records held by Federal agencies to include service treatment records or other military records, and medical records from VA hospitals. With respect to private treatment records, the letters informed the Veteran that VA would request such records, if the Veteran completed and returned the attached VA Form 21-4142, Authorization and Consent to Release Information. The letters also notified the Veteran that he would be afforded a VA examination if necessary to make a decision on his claim. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided with Dingess notice in the above-referenced VCAA letters. Accordingly, the Veteran received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. As there is no indication that there exists any evidence which could be obtained to affect the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran). Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West Supp. 2011); 38 C.F.R. § 3.159 (2011). In the instant case, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his respiratory disability claim and there is no reasonable possibility that further assistance would aid in substantiating it. The evidence of record includes the Veteran's service treatment records, service personnel records, the Veteran's statements and VA and private records. The Veteran was afforded a VA examination dated March 2007 and a VHA medical opinion dated June 2011 as to his respiratory disability claim. The VA examination report and VHA opinion reflect that the examiners reviewed the record, documented the Veteran's current medical conditions, and rendered appropriate opinions consistent with the remainder of the evidence of record. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the VA examination report and VHA opinion are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the issue has been consistent with said provisions. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2011). He has retained the services of a representative and, as indicated above, he testified a personal hearing before the undersigned. Accordingly, the Board will proceed to a decision. Relevant law and regulations Service connection - in general Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. See 38 C.F.R. § 3.303(a) (2011). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2011). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis The Veteran seeks entitlement to service connection for a respiratory disability, which he asserts was incurred during his military service. See the January 2011 Board hearing transcript. As noted above, in order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden, supra. As to element (1), current disability, it is undisputed that the Veteran is diagnosed with COPD and asthma. Additionally, CT scans from February 2005 through February 2007 demonstrate emphysematous changes, nonspecific 0.4 cm. pulmonary nodularity in the right lung apex, calcified right inferior middle lobe granuloma. See the private treatment records dated February 2005 to February 2007. As such, element (1) is satisfied. With respect to element (2), disease or injury in service, the Board will separately address the matters of in-service disease and in-service injury. Regarding disease, the Veteran's service medical records do not indicate that the Veteran complained of or was treated for lung problems in service. Indeed, there is no evidence that the Veteran sought treatment for respiratory problems until 1990. See the letter from Dr. B. G. dated July 2006. The Board does note, however, that a December 1974 chest x-ray showed "[o]ld granulomatous disease in the hila and right lower lobe of the lung." However, no pulmonary history or current diagnosis of pulmonary disease was made at that time. With respect to in-service injury, the Veteran has alleged pulmonary injury resulting from exposure to asbestos, airplane fumes, and Agent Orange in service. See the January 2011 Board hearing transcript. Initially, as to the alleged Agent Orange exposure, the Board recognizes that the Veteran served in the official waters off the coast of Vietnam. However, such service does not constitute 'service in the Republic of Vietnam.' See VAOPGCPREC 27-97 (O.G.C. Prec.27-97); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (holding that the Court had erred in rejecting VA's interpretation of § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption). Instead, 'service in the Republic of Vietnam' requires visitation (i.e. setting foot) in Vietnam. See 38 C.F.R. §§ 3.307(a), 313(a) (2011). Critically, the Veteran does not contend that he 'set foot' in Vietnam (see the January 2011 Board hearing transcript, pgs. 5-6), nor is there evidence to support such a finding. As such, exposure to Agent Orange is not shown by the record. As noted above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. The Veteran's contention is that he was exposed to asbestos aboard ship. The Board cannot disagree with the Veteran's contention in light of the provisions of M21-1, described in the law and regulations section above. The Veteran served aboard the U.S.S. HORNET, which was a World War II-era ship, and VA has recognized that such vessels contained asbestos. Additionally, the Board does not dispute that the Veteran was exposed to airplane fumes while performing his military duties; as such exposure is consistent with his military occupational specialty. Element (2) has therefore also been met. Turning to crucial element (3), nexus, the competent medical evidence of record demonstrates that the Veteran's currently diagnosed respiratory disability is not related to his military service to include asbestos and airplane fume exposure. Notably, the June 2011 VHA examiner indicated, "[a]lthough the Veteran may have been exposed to asbestos while serving on the U.S.S. HORNET, there is no evidence on his chest x-rays or chest CT scans of asbestos exposure. Specifically, the B reading of his chest x-ray from March 29, 2007 was negative for asbestos related changes. The radiologist's report of his February 11, 2004 CT stated, '[t]here is no calcified pleural plaque to suggest exposure to asbestos.'" The VHA examiner continued, "[r]eview of the Veteran's chest CTs from 2005 to 2007 do not report pleural plaques suggesting asbestos related pleural disease or interstitial lung changes that might be consistent with asbestosis. His 2006 Chest CT is reported as showing bilateral emphysematous changes. Asbestos exposure is not known to be a causative agent for COPD or asthma." The June 2011 VHA examiner also addressed the granulomas and 4 cm. scar reported in the Veteran's 2005 and 2006 chest CTs as well as the December 1974 chest x-ray report which documented "old granulomatous disease in the right hila and right lower lobe of the lung." The examiner then concluded, "[t]hese abnormalities are unlikely to be from asbestos exposure and would not result in any respiratory symptomatology." The June 2011 VHA examiner further indicated that "[t]he Veteran states that he was exposed to exhaust fumes while serving on the U.S.S. Hornet. There is insufficient data in the medical literature showing an association between exposure to jet engine exhaust fumes and the development of COPD." The June 2011 VHA examiner additionally noted the Veteran's history of smoking and concluded, "[t]he severe COPD seen on his [pulmonary function tests] and emphysematous changes noted on his chest CT are most likely secondary to his tobacco use. Multiple physician notes document that the patient smoked one pack of cigarettes per day for about fifty years. He quit smoking in 2004." The June 2011 VHA examiner further concluded, "[b]ased on this review, I am rending an opinion that it is NOT at least as likely as not that the Veteran's current pulmonary/respiratory disorders are related to exposure to asbestos and/or aircraft exhaust fumes during his military service." [Emphasis as in original]. The June 2011 VHA examination report appears to have been based upon thorough review of the record as well as thoughtful analysis of the Veteran's entire history. The VHA examiner noted the Veteran's report of in-service exposure to asbestos and airplane fumes and development of his current respiratory disabilities, and further indicated that he relied upon the Veteran's medical records, clinical experience, and medical research in rendering his opinion. See Bloom, supra. Moreover, the VHA opinion is consistent with that rendered by the March 2007 VA examiner who concluded that "[t]he changes on the chest x-ray at this time do not appear to be related to asbestos exposure, although this is likely. However, I believe that most of the Veteran's symptoms of shortness of breath and the root cause of his pulmonary condition is his significant COPD which is related to his long-standing history of smoking. He also appears to have cor pulmonale secondary to his COPD." The Veteran has submitted several private medical opinions in support of his claim for service connection. In a July 2006 letter, Dr. B.G. described the Veteran's current respiratory diagnoses and stated that "[s]ince [the Veteran] was stationed during his time in the Navy on different ships; it is quite likely that he has been exposed to asbestos and may develop complications of it." Critically, the rationale provided by Dr. B.G. does not provide an adequate basis for the speculative opinion provided. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record). Similarly, in an opinion dated October 2007, Dr. J.B.R. opined that the Veteran "served in the Navy for nearly twenty years, from 1955 until 1974, including time in the waters off the coast of Vietnam. He was exposed to airplane exhaust fumes and in addition there may have been exposure to asbestos and Agent Orange during his service . . . It is possible that the pulmonary lesions and that his pulmonary function impairment are significantly related to these exposure incidents." In an October 2008 addendum, Dr. J.B.R. added that the Veteran "has provided me with records from his military service and details of his exposure to Agent Orange, asbestos, and airplane exhaust fumes . . . Based on these severity of his lung disease and history of exposure, I believe that a very significant proportion of his pulmonary injury is related to these exposure incidents." The October 2007 and October 2008 opinions are entitled to little weight of probative value as said statements provide little rationale to support the conclusions rendered and Dr. J.B.R. failed to address the Veteran's long history of smoking which is well-documented in the claims file. See Stefl v. Nicholson, 21 Vet. App. 102 (2007); see also Herandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). The Board observes that the Veteran has recently contended that the VHA examiner and the VA, generally, have over-stated his tobacco use. See, e.g., the Veteran's statement received October 2011 (stating that "I never said I smoked a pack a day"); see also the January 2011 Board hearing transcript, pg. 10. Critically, however, the claims folder is replete with both VA and private treatment records which document the Veteran's lengthy and substantial smoking history. In particular, a private treatment record dated September 1994 noted that the Veteran "does smoke about one pack per day." In a subsequent VA musculoskeletal examination report dated February 1999, the VA examiner observed that "[t]he Veteran has smoked one pack of cigarettes per day for more than forty years." A subsequent October 2000 private treatment record indicated that the Veteran had been "smoking one to two packs per day since the age of eighteen." Notably, in an October 2002 VA treatment record, the treating physician noted that the Veteran "is having marked shortness of breath with moderate exertion secondary to his COPD. He continues to smoke approximately one package of cigarettes per day with associated chronic bronchitis." An April 2002 VA treatment record indicates that the Veteran has smoked, "one pack per day since sixteen years of age." In a June 2003 VA treatment record, the Veteran's treating clinician noted that "[h]e has smoked for more than fifty years. He smokes about a pack per day." Similarly, private treatment records dated October 2005 reported that the Veteran "smoked one pack a day for fifty years and quit when he developed shortness of breath in October 2004." Accordingly, based upon the overwhelming medical evidence to the contrary, the Board finds that the Veteran's recent statements concerning a more minimal smoking history are not credible. Moreover, in so far as the Veteran claims that his current respiratory disorders are related to his smoking in service, 38 C.F.R. § 3.300 precludes service connection for any disability on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. To the extent that the Veteran is contending that the claimed respiratory disability is related to his military service, the Board notes that under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's lay reports of current disability are supported by the clinical evidence. However, at issue in this case is whether there is competent evidence linking his current complaints and symptomatology to in-service asbestos and/or airplane fume exposure. In this regard, there is no indication that the Veteran is competent to comment on medical matters such as etiology. See 38 C.F.R. § 3.159(a)(1) (2011) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the Veteran in support of the claim are not competent evidence of a nexus between claimed disability and military service. To the extent that the Veteran is contending that he has had a respiratory disability on a continuous basis since service, the Board is of course aware of the provisions of 38 C.F.R. § 3.303(b), discussed in the law and regulations section above. In Savage v. Gober, 10 Vet. App. 488 (1997), the Court noted that while the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment, the lack of evidence of treatment may bear upon the credibility of the Veteran's current assertions of a continuity of symptomatology. While competent to report observable symptoms such as shortness of breath and respiratory discomfort, the Veteran is not competent to report that his perceived symptoms are manifestations of a chronic disability such as a respiratory disability. In Voerth v. West, 13 Vet. App. 117, 120-21 (1999), the Court held that in order to award service connection 38 C.F.R. § 3.303(b), there must be medical evidence on file demonstrating a relationship between a veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent. Such evidence is lacking in this case. Continuity of symptomatology after service is therefore not demonstrated. Accordingly, element (3) is not satisfied and the claim fails on this basis. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disability to include COPD and asthma. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West Supp. 2011); 38 C.F.R. § 3.102 (20101); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a respiratory disability to include COPD and asthma is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the Veteran's right hip claim must be remanded for further evidentiary development. The Veteran has repeatedly asserted entitlement to service connection for right hip disability as secondary to his service-connected cervical spine disability. See the Veteran's claim dated March 2006; see also the January 2011 Board hearing transcript. In order for service connection to be granted on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, it is undisputed that service connection has been granted for status-post fracture dislocation of C5-C6 with anterior cervical fusion; element (2) is therefore met. Moreover, the Board observes that the service treatment records demonstrate that in October 1964, the Veteran "underwent an anterior interbody cervical fusion of C5-C6 with an iliac bone graft." As to the matter of the existence of the claimed disability, an August 2005 x-ray of the right hip revealed, "degenerative changes including joint space narrowing and subchondral cyst formation of the right acetabular femoral joint." Additionally, in a July 2006 letter, Dr. B.G. diagnosed the Veteran with degenerative joint disease and further indicated that a January 2006 CT scan of the pelvis "confirmed extensive hip osteoarthritis, more pronounced on right." There is currently no medical evidence as to whether the currently diagnosed right hip disability is related to the service-connected cervical spine disability to include the in-service cervical fusion with bone graft. As such, this case presents certain a medical question which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). An examination is therefore necessary. See 38 C.F.R. § 3.159(c)(4) (2011) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. VBA should schedule the Veteran for an examination with a medical professional of appropriate expertise to determine the etiology of his right hip disability. The claims folder should be made available for review in conjunction with the examination and the examiner's attention should be directed to this remand. The examiner should then provide an opinion, which supporting rationale, as to whether it is at least as likely as not that the claimed right hip disability is caused or aggravated by his cervical spine disability, to include the in-service cervical spine fusion which included an iliac bone graft. If additional examinations and/or diagnostic testing are deemed to be necessary, such should be scheduled. A report should be prepared and associated with the Veteran's VA claims folder. The rationale for all opinions expressed by the examiner should also be provided. If the examiner is unable to provide an opinion as to the questions posed, he/she should state the reasons therefore. 2. After undertaking any additional development which it deems necessary, VBA should then readjudicate the Veteran's claim of entitlement to service connection for right hip disability. If the benefit sought on appeal remains denied, VBA should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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. 2011). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs