Citation Nr: 1222083 Decision Date: 06/25/12 Archive Date: 07/02/12 DOCKET NO. 06-29 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease. 2. Entitlement to a compensable rating for residuals of spontaneous pneumothorax with thickened pleura in the right apex. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1961 to September 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2005 of a Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In November 2007, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. A transcript of the hearing is in the Veteran's file. In September 2011, the Veteran indicated that he does want another hearing. In March 2012, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). In April 2012, the Veteran and his representative were provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument. In response, the Veteran indicated that he had no further evidence to submit. The Veteran's representative responded with additional argument in May 2012. For the purpose of the finding of fact, conclusion of law, analysis, and Order, the diagnosis of chronic obstructive pulmonary, includes emphysema. Dorland's Illustrated Medical Dictionary 538 (31st ed. 2007). The claim for increase for residuals of a spontaneous pneumothorax with thickened pleura in the right apex is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Chronic obstructive pulmonary disease had onset in service. CONCLUSION OF LAW Chronic obstructive pulmonary disease was incurred in service. 38 U.S.C.A. §§ 1131, 5107(b), (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2011). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim of service connection is granted, VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1131 (peacetime service). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 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 in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The Claim of Service Connection Facts The service treatment records show that in the second week in July 1962 the Veteran complained of pain in the right pectoral area and right shoulder of sudden onset. In the third week of July 1962, the Veteran had the same complaint as well as shortness of breath. X-rays showed a partial collapse of the right lung. The Veteran was then hospitalized for about nine days before he was returned to duty. During the hospitalization, X-rays showed a 40 percent collapse of the right lung, which resolved. The diagnosis was right spontaneous pneumothorax. On separation examination, the lungs were evaluated as normal. There was no complaint, finding, or history of a respiratory abnormality. After service, on VA examination in January 1966, a chest X-ray showed no evidence of a pneumothorax or of emphysema. There was minimal pleural thickening over the apical area. The Veteran gave a history of smoking 20 cigarettes a day. In a rating decision in February 1966, the RO granted service connection for residuals of a right spontaneous pneumothorax with thickened pleura and assigned a noncompensable rating. Private medical records show that in July 1988 X-rays were compatible with emphysema. On examination, the Veteran had very limited respiratory excursion and pulmonary function tests showed severe obstruction. It was noted that the Veteran continued to smoke 11/2 packs of cigarettes a day. In September 1999, the Veteran experienced shortness of breath with activities such as climbing stairs and mowing the lawn. In October 1999, D.O.F., MD, a private physician, stated that the spontaneous pneumothoraces that the Veteran had during his service and the current evaluation suggested that Veteran had severe restrictive lung disease and emphysema, which the Veteran had in his 20s on the basis of history provided by the Veteran. In November 1999, on a consultation request by VA, private physician expressed the opinion that the Veteran's ongoing chronic pulmonary disease was almost certainly due to tobacco use and not due to the spontaneous pneumothoraces from the 1960s. In February 2000, J.O., DO, indicate that the Veteran, a longstanding smoker, had a 25-year history of chronic obstructive pulmonary disease. VA records in June 2001 showed a moderate pulmonary obstruction by pulmonary function testing. In February 2004, the Veteran was using an inhaler for asthma. In January 2005, it was noted that the Veteran had chronic obstructive pulmonary disease. In February 2005, C.N.B., MD, a private physician, expressed the opinion that the Veteran's current abnormal pulmonary function tests were due to his in-service lung disease. In January 2006, Dr. B. stated that while the Veteran has a history of smoking, when his lung disease began in 1962 the impact of his smoking was insignificant without bulla or blebs, and the spontaneous pneumothorax from service resulted in lung scarring that was compromising the Veteran's breathing. In March 2005, R.C.N., MD, a private physician, stated that CT scan in 2000 showed a pleural based nodule at the left lung base and some pleural thickening and that it was known that pleural thickening and pleural changes can be secondary to exposure to asbestos. In February 2006, a VA physician expressed the opinion that emphysematous changes by X-ray were the cause of the pneumothoraces in service and that the pneumothoraces were caused by the rupture of emphysematous blebs or bullae, which the physician saw as emphysema throughout the lungs. In January 2007, the same VA physician stated that as a Board certified internist he had considerable training and experience in pulmonary disease and that he was aware of the Veteran's history of smoking. The VA physician stated that the bullae were the cause of the pneumothoraces in service, which had enlarged over the years, and that without the small bullae, the Veteran would not have had recurrent pneumothoraces. In May 2006, T.S.L., MD, a private physician stated that he was not aware of any study that showed that spontaneous pneumothoraces lead to progressive emphysema. The physician expressed the opinion that the Veteran's emphysema was secondary to smoking. On VA examination in April 2007, the Veteran stated that he had six to eight reoccurrences of pneumothoraces before 1966, which were not documented. He stated that his shortness of breath began in the 1980s and had gradually worsened. He stated that he began smoking around age 17 and that he smoked one pack a day for 43 years before quitting in 2005. The diagnoses were a history of right spontaneous pneumothorax and chronic obstructive pulmonary disease. In July 2007, a VA pulmonologist expressed the opinion that the Veteran did not have chronic obstructive pulmonary disease or emphysema or early signs of either while in service. The VA pulmonologist explained that in 1966 there were no symptoms, findings, or radiographic evidence of emphysema and that chronic obstructive pulmonary disease or emphysema characteristically appears in late middle age and that a pneumothorax due to chronic obstructive pulmonary disease or emphysema is a late manifestation that occurs many years after the illness is clinically obvious. In March 2009, a VA physician expressed the opinion that the history of a right spontaneous pneumothorax with thickened pleura of the right apex did not cause the post-service onset of chronic obstructive pulmonary disease and emphysema, that chronic obstructive pulmonary disease and emphysema were not first manifested in service, and that the right spontaneous pneumothorax with thickened pleura did not cause any increase in severity of the chronic obstructive pulmonary disease or emphysema. The VA physician noted that there was only one pneumothorax documented in service, that the Veteran developed chronic obstructive pulmonary disease after years of heavy smoking, that bullae were not found in X-rays until later in the course of the Veteran's chronic obstructive pulmonary disease, and that there are many causes of a spontaneous pneumothorax and the cause of the pneumothorax in service had not been determined. In March 2012, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). The VHA expert, a physician, who is the Clinical Director of the Compensation and Pension Unit at a VA Medical Center, was asked to provide an opinion on the following questions: 1. Was it at least as likely as not (to at least a 50-50 degree of probability) that the Veteran has chronic obstructive pulmonary disease or emphysema which was causally or etiologically related to his active naval service, or is such a relationship unlikely (i.e., less than a 50 percent probability)? 2. If the answer to the above is negative, is it at least as likely as not that the Veteran's chronic obstructive pulmonary disease or emphysema has been caused or aggravated by his service-connected history of right spontaneous pneumothorax with thickened pleura of the right apex? If chronic obstructive pulmonary disease or emphysema in its entirety was caused by the history of right spontaneous pneumothorax with thickened pleura, please identify, if possible, the mechanism by which that occurred. Or, if chronic obstructive pulmonary disease or emphysema was not caused in its entirety by the history of right spontaneous pneumothorax with thickened pleura, has it been aggravated since it independently arose? In other words, has the history of right spontaneous pneumothorax with thickened pleura caused a permanent and greater degree of impairment with respect to emphysema? If you find that the history of right spontaneous pneumothorax with thickened pleura has aggravated chronic obstructive pulmonary disease or emphysema, please provide the following supporting rationale: a. Describe the baseline manifestations of the chronic obstructive pulmonary disease or emphysema which existed before the aggravation occurred; b. Identify the increased manifestations of the chronic obstructive pulmonary disease or emphysema which, in the expert's opinion, are proximately due to the Veteran's service-connected history of right spontaneous pneumothorax with thickened pleura; and c. Explain the medical considerations supporting the opinion that increased manifestations of the chronic obstructive pulmonary disease or emphysema are proximately due to the Veteran's service-connected history of right spontaneous pneumothorax with thickened pleura. In response, after a review of the record as summarized above, the VHA expert in consultation with a pulmonary specialist at the VA Medical Center, expressed the opinion that it was at least as likely as not that the current chronic obstructive pulmonary disease or emphysema is a continuation of the same disease process that caused the right spontaneous pneumothorax during service and that over the years the condition was made worse by the Veteran's long history of cigarette smoking. The VHA expert explained that based on current medical knowledge the development of a spontaneous pneumothorax in a young person indicates that there was some degree of underlying emphysema during service, although sophisticated tests were not available at that time to document its presence, and that the Veteran's lung condition had progressed over the years to become a more severe form of the same disease. Analysis On the basis of the service treatment records alone, chronic obstructive pulmonary disease was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303(a) is not established. As there is evidence in service of a respiratory symptoms, shortness of breath, the result of a spontaneous pneumothorax, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. §3.303(b) apply. As for chronicity, as the shortness of breath associated with a spontaneous pneumothorax resolved, the service treatment records lack the documentation of the combination of manifestations sufficient to identify chronic obstructive pulmonary disease and sufficient observation to establish chronicity during service. As the fact of chronicity in service is not adequately supported, then service connection may be shown by either continuity of symptomatology after service under 38 C.F.R. § 3.303(b), or by initial diagnosis after service, when all the evidence establishes that the disability was incurred in service under 38 C.F.R. § 3.303(d). After service, the evidence in support of continuity of symptomatology consists of the Veteran's statements and testimony that he has had respiratory symptoms since service, which have resulted in chronic obstructive pulmonary disease in addition to the already service-connected residuals of a spontaneous pneumothorax. As a lay person, the Veteran is competent to describe respiratory symptoms, which he is able to perceive through the use of his senses. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). As competent evidence the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity. Rucker at 74 (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible). The Board also finds that the Veteran's statements and testimony in describing the respiratory symptoms are credible, that is, plausible evidence of continuity of symptomatology. But as it does not necessarily follow that there is a relationship between the current chronic obstructive pulmonary disease and the continuity of symptomatology that the Veteran avers, medical evidence is required to demonstrate such a relationship unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (medical evidence is required to demonstrate continuity of symptomatology and any present disability unless such a relationship is one to which a lay person's observation is competent). Although the Veteran is competent to describe respiratory symptoms, chronic obstructive pulmonary disease is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or diagnosis of such a disability therefore is medical in nature and competent medical evidence is required to substantiate the claim. Savage at 498 (On the question of whether there is a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Also, the Veteran as a lay person is competent to identify a simple medical condition, to relate a contemporaneous medical diagnosis, or to relate symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). And, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). As the presence or diagnosis of chronic obstructive pulmonary disease cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses, and as the medical condition is not one under case law that has been found to be capable of lay observation, the presence or diagnosis of chronic obstructive pulmonary disease is not a simple medical condition that the Veteran is competent to identify or to diagnose. And no factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Therefore, the Veteran's assertion that he has chronic obstructive pulmonary disease since service is not competent evidence. To this extent the Veteran's statements and testimony are not admissible as evidence of the presence of chronic obstructive pulmonary disease since service based on continuity. To extent the Veteran offers an opinion that chronic obstructive pulmonary disease is related to the respiratory symptoms in service or to the service-connected residuals of a spontaneous pneumothorax, as a lay person the Veteran's opinion is limited to inferences that are reasonably based on the Veteran's perception. As the Veteran's opinion on causation cannot be reasonably based on his personal observation, as the medical condition is not one under case law that has been found to be capable of lay observation, and as the medical condition is not a simple one, the Veteran's opinion on causation is not competent evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion in this case. To this extent, the Veteran's opinion on causation is not competent evidence and the Veteran's opinion is not admissible. And while the Veteran is competent to report a contemporaneous medical diagnosis, there is no pertinent diagnosis before 1988, 25 years after service. For the above reasons, the Board finds that the Veteran's lay statements and testimony alone and to the extent the lay evidence is offered as proof of continuity of symptomatology or of the onset chronic obstructive pulmonary disease in service or as evidence of a causal relationship between chronic obstructive pulmonary disease and the respiratory symptoms in service, the "nexus" requirement, the lay evidence is not competent evidence. And the lay evidence is not admissible, that is, not to be considered as evidence favorable to the claim under either 38 C.F.R. § 3.303(b) or 38 C.F.R. § 3.303(d). As for the Veteran relating symptoms that later support a diagnosis by a medical professional, there is competent and credible medical evidence favorable to the claim. 38 C.F.R. § 3.159 (Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.). On the question of a current disability, diagnosed as chronic pulmonary disease, in July 1988 X-rays were compatible with emphysema. In October 1999, D.O.F., MD, a private physician, stated that the current evaluation suggested emphysema. In November 1999, on a consultation request by VA, a private physician referred to ongoing chronic pulmonary disease. In February 2000, J.O., DO, reported a 25-year history of chronic obstructive pulmonary disease. VA records in June 2001 showed a moderate pulmonary obstruction by pulmonary function testing and in January 2005 it was noted that the Veteran had chronic obstructive pulmonary disease. In February 2006, a VA physician referred to emphysematous changes by X-ray. In May 2006, T.S.L., MD, also referred to emphysema. On VA examination in April 2007, the diagnosis was a history of chronic obstructive pulmonary disease. In March 2009, a VA physician referred to post-service onset of chronic obstructive pulmonary disease and emphysema. In March 2012, the VHA expert in consultation with a pulmonary specialist referred to the current chronic obstructive pulmonary disease or emphysema. The favorable evidence of current disability and along with the evidence of respiratory symptoms in service establish two of three elements necessary for service connection, namely, evidence of present disability and evidence of an established event in service. The remaining element necessary to establish service connection is evidence of a causal relationship between the present chronic obstructive pulmonary disease disability and the event in service, respiratory symptoms, the "nexus" requirement. Shedden at 1167. On the question of the nexus requirement there is competent and credible evidence favorable and unfavorable to the claim. The favorable evidence consists of the following. In February 2005, C.N.B., MD, a private physician, expressed the opinion that the Veteran's current abnormal pulmonary function tests were due to his in-service lung disease. In January 2006, Dr. B. stated that while the Veteran has a history of smoking, when his lung disease began in 1962 the impact of his smoking was insignificant without bulla or blebs, and the spontaneous pneumothorax from service resulted in lung scarring that was compromising the Veteran's breathing. In February 2006, a VA physician expressed the opinion that emphysematous changes by X-ray were the cause of the pneumothoraces in service and that the pneumothoraces were caused by the rupture of emphysematous blebs or bullae, which the physician saw as emphysema throughout the lungs. In January 2007, the same VA physician stated that as a Board certified internist he had considerable training and experience in pulmonary disease and that he was aware of the Veteran's history of smoking. The VA physician stated that the bullae were the cause of the pneumothoraces in service, which had enlarged over the years, and that without the small bullae, the Veteran would not have had recurrent pneumothoraces. In March 2012, a VHA expert expressed the opinion that it was at least as likely as not that the current chronic obstructive pulmonary disease or emphysema is a continuation of the same disease process that caused the right spontaneous pneumothorax during service and that over the years the condition was made worse by the Veteran's long history of cigarette smoking. The VHA expert explained that based on current medical knowledge the development of a spontaneous pneumothorax in a young person indicates that there was some degree of underlying emphysema during service, although sophisticated tests were not available at that time to document its presence, and that the Veteran's lung condition had progressed over the years to become a more severe form of the same disease. The unfavorable evidence consists of the following In November 1999, on a consultation request by VA, private physician expressed the opinion that the Veteran's ongoing chronic pulmonary disease was almost certainly due to tobacco use and not due to the spontaneous pneumothoraces from the 1960s. In May 2006, T.S.L., MD, a private physician stated that he was not aware of any study that showed that spontaneous pneumothoraces lead to progressive emphysema. The physician expressed the opinion that the Veteran's emphysema was secondary to smoking. In July 2007, a VA pulmonologist expressed the opinion that the Veteran did not have chronic obstructive pulmonary disease or emphysema or early signs of either while in service. The VA pulmonologist explained that in 1966 there were no symptoms, findings, or radiographic evidence of emphysema and that chronic obstructive pulmonary disease or emphysema characteristically appear in late middle age and that a pneumothorax due to chronic obstructive pulmonary disease or emphysema is a late manifestation that occurs many years after the illness is clinically obvious. In March 2009, a VA physician expressed the opinion that chronic obstructive pulmonary disease and emphysema were not first manifested in service. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the Board finds that the favorable opinion of the VHA expert is more persuasive than the negative opinions, because the VHA expert applied medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. The VHA expert took into account not only the Veteran's smoking, which was the basis for two of the negative opinions, but the opinion also accounted for the spontaneous pneumothorax by explaining that the current chronic obstructive pulmonary disease or emphysema was a continuation of the same underlying disease process that caused the spontaneous pneumothorax during service. As for the opinion of the VA pulmonologist in July 2007 that the Veteran did not have chronic obstructive pulmonary disease or emphysema or early signs of either while in service, the VA pulmonologist explained that chronic obstructive pulmonary disease or emphysema characteristically appears in late middle age and that a pneumothorax due to chronic obstructive pulmonary disease or emphysema is a late manifestation that occurs many years after the illness is clinically obvious. The opinion of the VA pulmonologist was consistent with the later opinion of the VA physician who stated that chronic obstructive pulmonary disease and emphysema were not first manifested in service. The VHA expert in consultation with another VA pulmonologist referred to current medical knowledge that a spontaneous pneumothorax in a young person, which is a significant fact in the case, meant some degree of underlying emphysema during service, although sophisticated tests were not available at that time to document its presence. In other words, there is medical support for the VHA expert's opinion that that the current chronic obstructive pulmonary disease or emphysema was a continuation of the same underlying disease process that caused the spontaneous pneumothorax during service even though the Veteran was in 18 to 20 years old in service and not middle aged. As the Board is charged with determining the probative value or evidentiary weight to be attached to a medical opinion as finder of fact, the Board finds that the opinion of the VHA expert has greater probative value that the negative opinions and the third element of service connection, namely, the causal relationship between the present chronic obstructive pulmonary disease disability and the event in service, respiratory symptoms, the "nexus" requirement, is established and the Veteran prevails on the claim of service connection. ORDER Service connection for chronic obstructive pulmonary disease is granted. REMAND With the grant of service connected for chronic obstructive pulmonary disease, which derives from the same disease process as the pneumothorax, the claim for increase for residuals of a right spontaneous pneumothorax needs further development under the duty to assist. Accordingly, the case is REMANDED for the following action: 1. Obtain VA records since April 2007. 2. Afford the Veteran a VA examination to include a pulmonary function test to determine whether the current pulmonary function is related to either the residuals of a right spontaneous pneumothorax or chronic obstructive pulmonary disease. 3. After the above development has been completed, adjudicate the claim for increase for residuals of a right spontaneous pneumothorax with thickened pleura of the right apex. If the benefit sought on appeal is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case l to the Board. 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). The 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs