Citation Nr: 1305178 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 06-00 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bronchiectasis to include for accrued benefit purposes. 2. Entitlement to service connection for the cause of death of the Veteran. REPRESENTATION Appellant represented by: Robert A. Laughlin, Attorney WITNESSES AT HEARING ON APPEAL Appellant, spouse, and son ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from July 1942 to December 1945. The appellant is the Veteran's surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that denied the Veteran's claim for service connection for bronchiectasis. In January 2008, the Veteran appeared at a hearing before C. Trueba, Veterans Law Judge. A transcript of the hearing is contained in the claims file. In October 2008, the Board denied the Veteran's claim. The Veteran filed a timely appeal of the decision to the United States Court of Appeals for Veterans Claims (Court). In Memorandum Decision dated in August 2011, the Court vacated the Board's decision and remanded the matter for compliance with the instructions in the Memorandum Decision. While the case was before the Court, the Court granted a motion to substitute the appellant for the Veteran for the purposes of this appeal. Meanwhile, in September 2010, the appellant filed a claim for service connection for the cause of the Veteran's death and for accrued benefits with the RO. That claim was denied in December 2010 and the appellant filed a timely appeal. In April 2012, the Board remanded this case for additional evidentiary development. At that time, the Board observed that the claim for accrued benefits was in essence the same as the claim for service connection for bronchiectasis remanded by the Court, the two claims have been merged together as stated on the title page. In November 2012, the appellant testified before D. Wight, Veterans Law Judge. A transcript of the hearing is contained in the claims file. At the time of the hearing, the appellant's attorney waived any procedural right to a hearing before a third Veterans Law Judge. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011) (§ 20.707 requires VA to afford a claimant the opportunity for a hearing before all the Board members who will ultimately decide his appeal). It is noted that the transcript mistakenly references the Court case Ardison. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The appellant seeks to continue the Veteran's appeal of the denial of service connection for bronchiectasis. She also contends that service connection for bronchiectasis for accrued benefits purposes as well as service connection for the cause of the Veteran's death is warranted. The record reflects that the Veteran died as a result of pneumonia due to his bronchiectasis. Thus, the determinative question is this appeal is whether the Veteran's bronchiectasis was etiologically related to his active military service. The appellant argues that the Veteran developed bronchiectasis due to his 18 months aboard a naval ship in an enclosed environment, exposed to toxic and diesel fumes in service. It is reported that he had continuous inhalation of diesel fumes because of the construction of the ship. It is further reported that the ship's living quarters did not provide ventilation or portholes, thereby exposing the Veteran to numerous noxious gases, dust, and debris. Statements from the Veteran reflect that he was a signal man in service. It is suggested that his symptoms of hacking cough and sputum in and since service are early clinical manifestation of later diagnosed bronchiectasis. Service treatment records show normal clinical evaluation of the respiratory system on entrance examination in July 1942-no defects were noted at that time. Treatment records show that he was seen for the common cold. Report of examination dated in November 1945 reflects normal clinical evaluation. No defects were noted. Report of separation examination dated in December 1945 reflects normal clinical evaluation of the respiratory system, bronchi, lungs, pleura, etc. Chest x-ray showed no abnormal findings. Only a vision defect was noted. A private treatment record dated in September 1994 reflects that the Veteran was first diagnosed with bronchiectasis in 20 years earlier, 1974, with bronchoscopy. A 60 pack year smoking history and quitting in 1967 was noted. A private treatment record dated in March 1995 also reflects a 60 pack year smoking history and quitting in 1967. At this time, the Veteran reported that he had been diagnosed with bronchiectasis by x-ray. In February 2006, the Veteran testified before a RO Decision Review Officer (DRO) that he did not smoke in the military. He testified that he started off smoking a pipe before switching to cigarettes in 1955. He reported a smoking a pack plus of cigarettes a day beginning in 1955, but not 2 packs, and that he quit in 1965. It is reported that the Veteran had sputum since service. The appellant reported knowledge of a hacking cough and sputum as long as she knew the Veteran-they were married in 1947. In support of the claim, favorable medical opinions were submitted from the Veteran's internist and pulmonologist, asserting that bronchiectasis was as likely as not related to service; statements and testimony reflecting that the Veteran had chronic hacking-type cough and sputum in and since service; and medical treatise evidence on the effects of toxic and diesel fume exposure. The Veteran's pulmonologist opined that smoking did not have an effect on the development of bronchiectasis. The record further contains negative VA medical opinions dated in 2005, 2011, and 2012. The May 2012 VA medical opinion was obtained in view of the Court's Memorandum decision and the physician concluded that bronchiectasis was less likely as not caused by or a result of his diesel fume exposure in service. The physician acknowledged no cigarette smoking history in service, which was the factual basis error cited in the Court's Memorandum Decision that rendered the prior medical opinion inadequate. The physician further provided the missing text from his earlier medical opinion dated in 2011-in part, it reflects a 30 pack year history over a 20 year period post service and indicated that "If one accepts the alleged smoking history at 10 pack years, this is a much greater exposure to cigarette smoke that to the diesel fumes while serving on the Belle Grove." Also, the physician addressed the Veteran's hacking cough-noting that cough is a cardinal symptom of bronchiectasis, but further noting that there are many causes for such to include sinus problems that are shown to have been a problem for the Veteran. In response to the most recent VA medical opinion dated in May 2012, the appellant's attorney submitted additional evidence to include a revised medical opinion from the Veteran's pulmonologist and journal/treatise evidence. In part, the treatise evidence shows that work in jobs with diesel exhaust was associated with increased mortality from chronic obstructive pulmonary disease; that occupational exposure to diesel exhaust, irritant gases and vapors, and mineral dust were positively associated with chronic obstructive pulmonary disease among both ever-smokers and never-smokers; that a retrospective observational study of 100 patients with bronchiectasis reported a link between the disease and significant exposure to indoor air pollution from biomass smoke. Various arguments from the Veteran's attorney along with statements and testimony of record suggest that cough and sputum in and since service reflect the earliest manifestations of bronchiectasis. Unfortunately, the Board observes that the VA medical opinion, while addressing hacking cough, did not address the symptom of sputum in and since service. Also, although the appellant waives consideration of the recent evidentiary submissions by the originating agency, the Board believes that, in order to fairly decide the claim, the VA physician providing an opinion in this matter should have the opportunity to consider such evidence and amend his opinion if necessary. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Accordingly, the case is REMANDED for the following action: 1. The May 2012 VA medical opinion should be returned to the physician for an addendum. The claims files must be available for review along with copies of any relevant medical records located in Virtual VA. The physician should address whether the Veteran's hacking cough and/or sputum in and since service are as likely as not early manifestations of later diagnosed bronchiectasis. The physician should review the most recent private medical opinion dated in October 2012 along with the journal/treatise evidence and amend his earlier medical opinion if necessary. The physician should comment on the private medical opinion that smoking has no effect on the development of bronchiectasis and the journal/treatise evidence indicating roughly the same incidence of chronic obstructive pulmonary disease in ever-smokers and non-smokers exposed to diesel exhaust and other air pollutants. The physician should provide a medical opinion and rationale on whether it is at least as likely as not that bronchiectasis was first manifested in service or is due to any incident of service, to include exposure to diesel fumes, noxious vapors, dust, and debris. A complete rationale should be provided for any conclusions reached. 2. The RO should also undertake any other development it determines to be warranted. 3. The RO should then readjudicate the claims. If the benefit sought on appeal remains denied, the appellant and her attorney should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome 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). _________________________________ ________________________________ DAVID L. WIGHT MICHAEL LANE Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _____________________________________ C. TRUEBA 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).