Citation Nr: 1306040 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 09-34 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as asthma, bronchitis, pleurisy, chronic obstructive pulmonary disease, and lung disease, (hereinafter respiratory disorder), to include as secondary to in-service herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned at a video hearing in April 2010. This transcript has been associated with the claims file. In a November 2011 decision, the Board denied the issue on appeal. The Veteran appealed the Board's November 2011 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court, in a July 2012 Order, vacated the Board's November 2011 decision and remanded the matter to the Board. 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 Board's November 2011 decision was vacated in part due to the Board's citing to a March 2011 VA examination. In pertinent part, this examination addressed the matter of whether the Veteran had a respiratory disorder which preexisted service and whether it was aggravated therein. Since the examiner considered this matter under the wrong standard, stating that a preexisting respiratory disorder was less likely than not aggravated during service. The Board determined that a respiratory disorder did not preexist service, so the Board did not consider aggravation. Nevertheless, the JMR indicates that the examination was inadequate and that a new examination be conducted to also consider if any current respiratory disorder is as likely as not related to service. On entrance, the Veteran reported that he had a history of hay fever. Thereafter, the Veteran's service treatment records indicate he was seen on multiple occasions with complaints of nasal and chest congestion and wheezing. In a July 1971 service treatment record the Veteran indicated he had a history of a collapsed left lung and/or pneumonia. A January 1972 service treatment record stated the Veteran had a plant or other allergy, which was confirmed by the platoon medic, and the Veteran was given medication. In a follow up record of February 1972, the physician noted the Veteran had a long history of allergic rhinitis and asthma and the Veteran was scheduled for an allergy panel. It is unclear as to whether he underwent the panel. The Veteran was also given a chest x-ray in February 1973 to rule out pneumonia. The results from the x-ray showed no active disease, but a small granuloma was noted. The separation examination did not reveal any respiratory abnormalities. The post-service diagnoses, commencing in November 1991, reflect that the following impressions were made: bronchitis, pleurisy, cough, allergies, calcified granulomas on x-ray, chronic rhinitis, obstructive lung disease/chronic obstructive lung disease (COPD), and asthma. In light of the foregoing complex nature of the documentary evidence as well as the JMR directives, the Board finds that the Veteran should be afforded a new VA examination, in compliance with the July 2012 JMR and the Court Order, to determine if any respiratory disorder preexisted service and was aggravated therein, or if not, if a current respiratory disorder is etiologically related to service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA respiratory examination to determine the nature and etiology of any current respiratory disorder, to include asthma, bronchitis, pleurisy, chronic obstructive pulmonary disease, and lung disease. The examiner should review the claims folder prior to examination. The examiner should provide an opinion as to the following questions: The examiner should consider if the Veteran had a respiratory disorder prior to service. The examiner should specifically review the medical history in terms of both the medical and lay evidence, and comment on the Veteran's report of having a history of hay fever on his June 1971 service entrance examination as well as lay evidence indicating that the Veteran had allergies and asthma prior to entering service. If the examiner determines that the Veteran had a respiratory disorder prior to service, he/she should determine: A. Whether it is at least as likely as not that the Veteran's respiratory disorder underwent an increase in disability, i.e., was aggravated, during service. If the preexisting respiratory disorder did not undergo an increase during active service, i.e., was not aggravated, the examiner must provide an opinion if the evidence against aggravation is clear and unmistakable (evidence that is obvious and manifest). B. If the Veteran's respiratory disorder underwent an increase in disability during service, was the increase in disability clearly and unmistakably (obviously and manifestly) due to the natural progress of the disease or was the increase in disability beyond the natural progress of the disease. If any current respiratory disorder did not preexist service, the examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current respiratory disorder had its clinical onset during service or is related to any in-service disease, event, or injury, to include as due to presumed inservice herbicide exposure. The examiner should specifically state if the Veteran has a respiratory cancer, to include cancer of the lung, bronchus, larynx, or trachea. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 3. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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 2002 & Supp. 2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).