Citation Nr: 1305376 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 94-49 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include bronchopneumonia. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert Howell, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from April 1962 to January 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, and a February 2007 rating decision of the VA RO in Oakland, California. The VA RO in Oakland, California currently has jurisdiction over the appellant's claims. In June 1997, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. The appellant's claims for entitlement to service connection for bronchopneumonia and COPD were previously denied by the Board in March 2007, but the appellant appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Subsequently, in an October 2009 Order, the Court vacated the Board's decision and remanded the case to the Board for further appellate review. In August 2010 the Board remanded the claim for additional development. 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that there has not been substantial compliance with the mandates of the August 2010 remand. In the August 2010 remand, the Board requested that the appellant be scheduled for an examination to determine the nature and etiology or onset of any chronic lung disability he had been diagnosed with at any point during the appeal period. The appellant was evaluated at a VA examination in November 2011. The VA examiner found that it was extremely unlikely that the appellant's exacerbations of chronic bronchitis are casually related to his having suffered from a bronchopneumonia or a few bronchitis episodes from 1962 to 1963. In the rationale for the opinion, the VA examiner noted that "since the early 1990s, the patient has had multiple episodes of cough with purulent phlegm . . . that meets the criteria of bronchitis. Given the frequency of these occurrences, they meet the definition of the patient having developed chronic bronchitis (and therefore COPD) at that time." The VA examiner noted that the onset of the episodes was in the 1990s. The VA examiner also stated that the appellant developed chronic bronchitis "later in life." As a lay person, the appellant is competent to report symptoms capable of lay observation, such as respiratory symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The November 2011 VA examiner's statement indicate that the opinion was based, in part, on the examiner's belief that the appellant's symptoms of chronic bronchitis began in the 1990s. However, the appellant has consistently stated that he had respiratory symptoms since service. In a medical treatment summary, the appellant stated that he received treatment for bronchial pneumonia in 1982 to 1983 and from July 1983 to April 1984. He also reported that he had bronchitis during the period from April 1984 to May 1985. Medical records from those periods could not be obtained. In a statement received in April 1999, the appellant stated that he was ill a few times a year after he left the Navy. In a statement received in April 2008, the appellant stated that the same respiratory problems had continued since he left active duty and had grown worse as he grew older. At the June 1997 Board hearing, the appellant stated that after he left the Navy, he noticed that on an annual basis he would always get pneumonia or bronchopneumonia or something that was described as emphysema. He stated that he sought treatment for lung problems within a year of service. The VA examiner also did not address the appellant's hospitalization for bronchopneumonia in November 1968, near his time in service. As the VA examiner did not address the appellant's competent statements regarding continuity of respiratory symptoms, the VA examination is inadequate. The VA examiner also failed to address all of the respiratory disabilities that the appellant was diagnosed with at any point during the appeal period, as requested by the Board in the August 2010 remand. The appellant has been diagnosed with chronic bronchitis and COPD, but the VA examiner did not specifically address the etiology of COPD. An April 2005 VA treatment record reflects that the appellant was diagnosed with allergic rhinitis, a diagnosis which was referenced by the Court in its November 2009 judgment. However, the VA examiner did not address the etiology of allergic rhinitis. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the November 2011 VA opinion is inadequate, the claim must be remanded for a new VA opinion. Additionally, in December 2012, the appellant's representative submitted additional pertinent arguments and evidence, including a March 2012 private medical record that had not been previously associated with the claims file. The appellant's representative did not waive his right to have the evidence initially considered by the RO prior to the Board's adjudication of the appeal. Thus, on remand, the RO should consider this evidence prior to readjudication of the claim. 38 C.F.R. § 19.37, 20.1304(c) (2012). As for the claim of entitlement to TDIU, the Board finds that this claim is inextricably intertwined with the above claims. Therefore, adjudication of this claim must be deferred pending completion of the additional evidentiary development outline above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is REMANDED for the following action: (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.) 1. Provide the claims file to an appropriate VA clinician to provide an opinion as to the etiology of all the chronic lung disabilities that the appellant has been diagnosed with at any point during the appeal period, including (1) chronic bronchitis, (2) COPD and (3) allergic rhinitis. The examiner should specifically state whether each diagnosed disability was at least as likely as not (i.e., probability of 50 percent) etiologically related to the appellant's period of active military service. This opinion should specifically include an explanation as to whether each condition is related to his in-service bronchopneumonia or other in-service conditions. For purposes of this examination, the VA clinician should assume that the appellant's assertion that he has had respiratory symptoms since service is credible. See November 1968 VA hospitalization report, June 1997 Board hearing testimony, April 1999 statement, and April 2008 statement. The VA clinician should also address the appellant's argument that his respiratory disability was caused by a mycoplasma infection due to his in-service vaccinations. See November 2011 letter. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the VA clinician determines that another examination is necessary to provide an opinion, such should be accomplished. 2. After any additional development deemed necessary is accomplished and after reviewing the new evidence submitted after the November 2012 supplemental statement of the case, readjudicate the issues on appeal of entitlement to service connection for a respiratory disability, to include bronchopneumonia, entitlement to service connection for COPD, and entitlement to a TDIU. If any 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 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). _________________________________________________ ROBERT E. SULLIVAN 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).