Citation Nr: 1300518 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 08-25 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for arthritis of the right foot. 2. Entitlement to service connection for a lung disability, to include as due to asbestos and chemical exposure. 3. Entitlement to service connection for hypertension, to include as secondary to a lung disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1963 and with the Connecticut National Guard from February 1957 to July 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In August 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2009 the Board remanded the case for further action by the Agency of Original Jurisdiction (AOJ). The Board remanded his matter again in May 2011 for additional development. The case has now returned to the Board for further appellate action. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In May 2011, the Board determined that additional development was necessary before a decision was rendered in this case as the December 2009 VA examination was not responsive to the October 2009 remand instructions. As such, the case was remanded for the procurement of adequate medical opinions addressing the nature and etiology of the claimed disabilities. In August 2011, the Veteran was afforded a VA examination of the feet where upon review of the record and a physical examination, the examiner concluded "[the Veteran] has evidence of [a] right foot hallux valgus and mild osteoarthritis of the 1st [metatarsophalangeal] joint. This would be most likely secondary to natural progression. Trauma and injury to the foot can lead to and/or accelerate degenerative changes, but this appears to be more consistent with natural progression." In October 2011, the Veteran underwent a VA examination for a lung disability and hypertension where his diagnosis of chronic obstructive pulmonary disease (COPD) and essential hypertension was confirmed. Upon review of the record and a physical examination, the examiner concluded, "[a]sbestos is not a cause for COPD. The [Veteran's] long history of smoking most likely causes COPD." In addition, the examiner determined "hypertension is not caused by or a result of [a] lung condition" and stated it was "based on medical evidence." While the Board acknowledges that the examiners stated a rationale for their opinions, the rationale as provided in each instance is conclusionary in nature will not withstand judicial scruitiny. As such, an addendum to the August 2011 and October 2011 opinions explaining the basis for the answers given for each of the questions posed are necessary. The basis for each answer is to be fully explained with a complete discussion of the pertinent (lay and medical) evidence of record and sound medical principles, including the use of (and citation to) any medical literature, relied upon by the examiner, which may reasonably illuminate the medical analysis in the study of this case. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must request an addendum opinion from the same VA examiner who conducted the August 2011 examination of the right foot disability, (or if unavailable, from appropriately qualified medical personnel). The claims folder must be made available to the examiner for review. The examiner is asked to review all pertinent records associated with the claims file, particularly the service treatment records, and offer comments and an opinion as to whether any disability of the right foot that the Veteran now has is at least as likely as not (i.e., a 50 percent or greater probability) related to an in-service history of injury, including the right foot injury in April 1961. Please explain in detail the underlying reasoning for your opinion. (A discussion of the facts and medical principles involved would be of considerable assistance to the Board). If the August 2011 VA examiner is unavailable, and the reviewing examiner is unable to provide an addendum opinion without another examination of the Veteran, the AMC/RO should arrange for the Veteran to undergo a VA examination, by appropriately qualified medical personnel, to obtain an opinion responsive to the question and comments noted above. The entire claims file and a complete copy of this REMAND must be made available to and reviewed by the new examiner in conjunction with the study of this case and this fact should be acknowledged in the report. All testing deemed necessary by the examiner should be performed and the results reported in detail. A complete rationale (which discusses the Veteran's medical history, lay statements, and the salient medical facts, and which explains in detail why the answer is being provided), should be given for all opinions and conclusions expressed. 2. The AMC/RO must request an addendum opinion from the same VA examiner who conducted the October 2011 examination of the lung disability and hypertension, (or if unavailable, from appropriately qualified medical personnel). The claims folder must be made available to the examiner for review. The examiner is asked to review all pertinent records associated with the claims file, including the service treatment records, and offer comments and an opinion as to whether any disability of the lung that the Veteran now has is at least as likely as not (i.e., a 50 percent or greater probability) related to any incident of active service, including asbestos exposure. In making this assessment, the examiner should be asked whether there is any medical reason to accept or reject the proposition that the Veteran's exposure to asbestos (or any other purported chemical exposure) in service could have led to the current condition(s) that the Veteran now has involving his lungs. Please explain in detail the underlying reasoning for your opinion. (A discussion of the facts and medical principles involved would be of considerable assistance to the Board). The examiner should express an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the hypertension that the Veteran now has was caused, or aggravated (permanently worsened beyond normal progression), by any lung disorder that the Veteran now has. Please explain in detail the underlying reasoning for your opinion. (A discussion of the facts and medical principles involved would be of considerable assistance to the Board). If the October 2011 VA examiner is unavailable, and the reviewing examiner is unable to provide an addendum opinion without another examination of the Veteran, the AMC/RO should arrange for the Veteran to undergo a VA examination, by appropriately qualified medical personnel, to obtain an opinion responsive to the question and comments noted above. The entire claims file and a complete copy of this REMAND must be made available to and reviewed by the new examiner in conjunction with the study of this case and this fact should be acknowledged in the report. All testing deemed necessary by the examiner should be performed and the results reported in detail. A complete rationale (which discusses the Veteran's medical history, lay statements, and the salient medical facts, and which explains in detail why the answer is being provided), should be given for all opinions and conclusions expressed. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the instruction above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. 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. 2012). _________________________________________________ DEBORAH W. SINGLETON 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) (2012).