Citation Nr: 1307828 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 07-14 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a respiratory disorder, to include asthma, chronic obstructive pulmonary disease (COPD) and emphysema. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In December 2010 the Board remanded the case for further development. 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 case was previously remanded in December 2010 to obtain the Veteran's service personnel records and to afford him another VA examination to determine his current respiratory diagnosis and to address the etiology of any current respiratory disease. The January 2011 VA examination report indicates that records review included an online review of treatment records from the VA clinic in Billings, Montana. No VA treatment records have been associated with the Veteran's claims file. The January 2011 VA examiner, while noting the Veteran's March 1998 separation examination report shows no history of asthma, shortness of breath, chronic cough, or chest pain, does not address service treatment records indicating a history of a chronic cough in July 1974, or of his 3-week history of a productive cough, diagnosed as bronchitis/URI, in May 1997, just over a year prior to his retirement. The examiner did note that an October 1998 private treatment record shows the Veteran reported a 2-month history of wheezing with URI symptoms and that he has mild obstructive dysfunction (COPD) which the examiner characterizes as a clinical combination of emphysema and chronic bronchitis. While noting that the Veteran's COPD is essentially unchanged on pulmonary function test (PFT) results from 1998 to 2010, the VA examiner opines that it had its onset after his service and is more likely than not a result of his smoking history. The examiner provides no rationale for his opinion regarding the initial onset of the Veteran's COPD. As noted in the December 2010 remand, the Veteran has argued that information he garnered from the Department of Health and Human Services and the American Lung Association indicates that COPD develops slowly and that it may be many years before any symptoms are noticed. Given that the Veteran was treated for bronchitis just over a year prior to his retirement, and that he developed symptoms within 2 months of his discharge that the January 2011 VA examination report acknowledges are consistent with COPD, the January 2011 medical opinion is inadequate as it does not address the Veteran's contention that medical evidence shows COPD develops slowly before any symptoms are noted and provides no rationale for the examiner's determination that the onset of the Veteran's COPD was after his discharge. Consequently, the record still does not contain sufficient medical evidence to adequately adjudicate the claim. Another remand is necessary to provide the VA physician who conducted the January 2011 examination (or, alternatively, another appropriate clinician) the opportunity to review the Veteran's claims file in its entirety and provide an opinion with a detailed supportive rationale regarding the initial onset of the Veteran's currently diagnosed COPD. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of the Veteran's VA treatment records and associate the records with his claim file. 2. Return the claim file to the January 2011 VA examiner, if available, to include a copy of this remand. The entire claim file must be reviewed by the examiner in conjunction with the examination. Based on review of all the evidence of record, the examiner must provide an opinion regarding whether it is at least as likely as not that the Veteran's currently diagnosed COPD had its onset in service. A clear rationale for all opinions must be provided with a discussion of the facts and medical principles involved, to include a discussion of the possible length of time for COPD to develop prior to the initial onset of symptoms. If the January 2011 VA examiner is unavailable, another qualified examiner is to provide the above opinions. Should a new examination be required, one must be scheduled. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 3. Review the examination report to ensure complete compliance with the directives of this remand. If deficient in any manner, implement corrective procedures. 4. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the issue on appeal. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ RONALD W. SCHOLZ 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).