Citation Nr: 1300928 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 06-10 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a chronic respiratory disability, to include emphysema, chronic obstructive pulmonary disease (COPD), and pneumonia. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from September 1963 to June 1977, and from November 1977 to March 1978. He had subsequent active duty service in the United States Army from October 1990 to March 1991. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an April 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the Portland RO in September 2008. A transcript of the hearing has been associated with the claims folder. In February 2009, October 2011, and April 2012, the Board remanded claim for additional evidentiary development. In accordance with the most recent remand decision, the RO obtained the requested VA treatment records. These records were uploaded to the Veterans Virtual VA electronic claims file, which exists separate from the paper claims files. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. Notwithstanding, the record shows that the Roseburg VA treatment records dated obtain through CAPRI (Compensation and Pension Records Interchange) and located in the Virtual VA file were considered by the RO in the adjudication of the claim. See Supplemental Statement of the Case dated in November 2012. 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 seeks service connection for a respiratory disability. It is well-established in the record that he had pneumonia and respiratory infections in service and that he was diagnosed post service with chronic obstructive pulmonary disease. VA has made several attempts to obtain medical evidence addressing the etiology and date of onset of the Veteran's respiratory and/or pulmonary disorders. The Board directed on remand in October 2011 that the Veteran undergo a VA examination and that the examiner provide a medical opinion. Specifically, the examiner was to (1) clarify each of the respiratory conditions currently shown, and (2) provide an opinion as to whether it is as likely not any currently shown disorder had its onset in service or is otherwise related to any period of active service. Additionally, the Board asked the examiner to comment on the role, if any, the Veteran's long history of smoking had in the development of any currently shown respiratory disorder; whether the Veterans in-service pneumonia was bacterial or viral in nature, indicating the implications of both-and providing an explanation if it was not possible to make the distinction; and whether the Veteran currently has asbestosis, or an asbestosis-related lung disease. A complete medical rationale for all opinions was required. Report of VA examination dated in January 2012 reflects that the Veteran underwent an evaluation by a VA nurse practitioner who concluded that he had chronic obstructive pulmonary disease, but no other respiratory conditions; and that he had asthma and bronchiectasis, but no other pulmonary conditions. The examiner stated that tobaccoism prior to and post service, chronic pneumonias in the military, and asbestos exposure "yet no signs of negative sequelae on chest x-ray or pfts" (pulmonary function tests) were predominantly responsible for the limitation in pulmonary function. The examiner opined as follows: Based on patient's history of chronic smoking (up to 3 ppd for decades and quitting 15 years ago), the lung conditions of pneumonia (impossible to determine if bacterial vs. viral) would have been exacerbated in the military by smoking....If the repeat pneumonias and respiratory infections in service were the problem, copd [chronic obstructive pulmonary disease] could still be a possible residual problem (it is not possible to tease out the degree of damage that smoking vs. lung infections had on his current copd[)]. This leaves the highest culprit for his current copd being the intensity and decades of smoking that the veteran began before and continued through and post military service. The Board finds that this most recent VA medical opinion is both inadequate and incomplete. First, while the report of examination reflects that three respiratory/pulmonary disorders were identified as currently shown, the examiner did not provide an opinion on whether it was as likely as not that any of the conditions shown had their onset in service or were otherwise related to service-to include the history of repeat pneumonias and respiratory infections. Second, the examiner does not reference asthma or bronchiectasis in the medical opinion provided. Third, examiner did not explain why she was unable to determine whether the pneumonia in service was bacterial or viral. Fourth, the conclusions and reasoning of the examiner are unclear and do not address the matters requested by the Board. Lastly, the examiner leaves open the possibility that chronic obstructive pulmonary disease is a residual of the Veteran's in-service pneumonia and respiratory infections. A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the examiner does provide the opinions requested as to each disorder found and she does not adequately or clearly explain why she thinks that chronic obstructive pulmonary disease was caused by the Veteran's longstanding history of smoking rather than the in-service pneumonias or respiratory infections. The Board believes that the medical opinion requested here was beyond the ken of the examiner, a nurse practitioner, based on the incomplete and inadequate report rendered in this case. Therefore, remand is necessary for a medical opinion by a physician with appropriate expertise. It is noted that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should obtain any pertinent outstanding medical records. 2. The RO or the AMC should obtain a VA medical opinion by a physician with appropriate medical expertise regarding the date of onset and etiology of the currently shown respiratory/pulmonary disorders. The claims folders, any pertinent medical records located in the Veteran's Virtual VA file, and a copy of this remand should be reviewed by the physician. After review of the Veteran's prior medical history and recent examination findings, the physician should identify all respiratory and pulmonary disorder shown during the appeal period. Then, the physician should opine as to whether it is as likely as not (50 percent or more probability) any respiratory/pulmonary disorder shown during the appeal period either (1) had its onset in service, or (2) is otherwise related to any period of active duty service-to include pneumonia and respiratory infections. For the purposes of these opinions, the examiner should assume that the Veteran was in fact exposed to smoke, dust particles, oil, diesel, natural and chemical fires and asbestos in service, as he so describes in the record. Additionally, the physician should answer the following: a) Explain the role, if any, that the Veteran's long smoking history has had in the development of any respiratory/pulmonary disorders shown during the appeal period. b) Indicate whether in-service treatment for pneumonia and respiratory infections marks the onset of a chronic respiratory/pulmonary disability. If possible, please note whether the Veteran's in-service pneumonia was bacterial or viral in nature, and the implications of both categorizations. If it is not possible to make this distinction, please explain why. c) Indicate whether the Veteran currently has asbestosis, or an asbestos-related lung disease. A completed rationale for all opinions expressed must be provided. The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., that he or she relied upon in reaching his or her conclusions. If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran 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). _________________________________________________ DAVID L. WIGHT 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).