Citation Nr: 1302914 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-30 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant, S.L., and N.A. ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served with the Philippine Commonwealth Army from December 1941 to May 1946, and was confined as a prisoner of war (POW) from April 1942 to September 1942. He died in November 2002, and the appellant is his surviving spouse. This matter matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The appellant is unrepresented in this appeal. In April 2011, the appellant testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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 for further evidentiary development. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In July 2011, the Board remanded the case for a VA examination, which was conducted in January 2012. However, the Board finds that the January 2012 VA examination not adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). The January 2012 VA examiner provided an opinion that it is less likely as not that the Veteran's fatal respiratory disability was related to his military service, including while serving as a POW. The examiner based his opinion on the fact that no lung abnormalities were detected on the Veteran's 1945 and 1946 physical examinations. The examiner provided no other explanation. The Board points out that the examiner neglected to consider the statements concerning the Veteran's symptoms experienced since service. To that effect, the Veteran's wife has reported through various written statements that her husband suffered from many diseases inside the camp while serving as a POW, to include bronchial asthma and severe coughing. Additionally, in a March 2002 statement, Dr. Pulmano indicated that he had treated the Veteran for several years from 1947 with a diagnosis of pulmonary problems, including repeated episodes of difficulty breathing. Dr. Pulmano opined that the Veteran's chronic obstructive pulmonary disease (COPD) developed due to his previous history of pulmonary tuberculosis. Further, Dr. Sulpicio Langoey testified at the April 2011 Board hearing that he had treated the Veteran from 1977 to 1979 for respiratory problems. Dr. Langoey stated that the Veteran complained of difficulty of respiration with almost constant coughing that pointed to bronchial asthma, bronchitis and obstructive pulmonary condition. Dr. Langoey further opined that the Veteran's asthma resulted from the elements that he was exposed to during his time as a POW. Although the January 2012 VA examiner listed these as evidence in the examination report, he failed to address or attempt to reconcile these private medical opinions. Dr. Langoey's opinion is essentially contradicted by the examiner's opinion. Nonetheless, the examiner only mentioned the lack of abnormal respiratory findings in the Veteran's service treatment records as the basis for his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The examiner could, for example, have evaluated the reported history and offered an opinion as to whether the reported history were consistent with the Veteran's symptoms through the years, or whether the symptoms were consistent with the fatal respiratory disability. Instead, the examiner appears to have determined, incorrectly, that service treatment records are the only evidence which can provide the basis for an opinion concerning etiology. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran's claims file to a VA provider, other than the January 2012 VA examiner, with the requisite expertise to provide an opinion as to whether it is at least as likely as not that the Veteran's fatal respiratory disability was related to his military service, including while serving as a prisoner of war. In rendering the opinion, the VA examiner must consider the lay statements of record including the testimony from the Board's April 2011 hearing. The VA examiner must also specifically address and attempt to reconcile any conflicting medical opinions of record, specifically to include Dr. Sulpicio Langoey's testimony during the April 2011 Board hearing and his opinion as referenced in his January 2009 letter, as well as Dr. Pulmano's statements that the Veteran was seen for a diagnosis of pulmonary problems shortly after his separation from service. The VA examiner is requested to provide a thorough and clear rationale for any opinion provided. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the examiner is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for the cause of the Veteran's death. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). _________________________________________________ U. R. POWELL 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).