Citation Nr: 1311060 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 05-10 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a chronic lung disability, claimed as chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected sinusitis. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps (USMC) from March 1975 to July 1979. Thereafter, he served a second period of active duty in the USMC from March 1981 to March 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a chronic lung disability, claimed as COPD, to include as secondary to service-connected sinusitis. In December 2009, the Veteran and his representative appeared at a videoconference hearing before the undersigned Veterans Law Judge to present evidence and oral testimony and arguments in support of the present claim. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. The case was previously remanded to the RO by the Board in November 2010 for additional evidentiary development. In its remand, the Board ordered the RO to schedule the Veteran for a VA examination to determine his current pulmonary diagnoses, to include an order for "[a]ll appropriate tests and studies" to be conducted in connection with this examination. Thereafter, based on a review of the relevant facts and clinical history, the examiner was to provide a nexus opinion addressing the likelihood that the pulmonary diagnosis or diagnoses obtained on examination were related to military service. The requested examination was conducted in December 2010, the claim was readjudicated and denied by the RO in a September 2011 rating decision, and the case was thereafter returned to the Board. The Board denied the current claim in a March 2012 appellate decision, which was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2012 order, the Court granted a joint motion of the appellant and the Secretary of VA to vacate the March 2012 Board denial. Thereafter, the case was remanded to the Board for action consistent with the Court's order. The case was returned to the Board in November 2012. For the reasons that will be discussed below, the appeal is REMANDED to the RO. VA will notify the appellant and his representative if further action on their part is required. REMAND The October 2012 Court order, incorporating the October 2012 joint motion to vacate the March 2012 Board decision, determined that the clinical findings and nexus opinion presented in the December 2010 VA examination report, upon which the Board based its denial of service connection for COPD, were inadequate. Specifically, the December 2010 VA examination opinion was faulted for not providing a detailed supportive rationale for the examiner's diagnostic conclusions and for not fully complying with the November 2010 Board remand by failing to conduct a pulmonary function test (PFT) in conjunction with the examination. By history, the Veteran filed his present claim for VA compensation for a chronic lung disorder in May 2003 and had a clinical diagnosis of COPD at one point or another during the pendency of this appeal. [See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007): The requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim.] An X-ray study of the Veteran's lungs performed during the December 2010 VA examination shows findings supporting an impression of "[m]ild COPD/chronic bronchitis type." The VA examiner even conceded that there were "[m]inimal abnormalities suggestive of COPD on chest X-ray," but then presented an opinion concluding that a "[p]ulmonary condition [did not exist] except slightly abnormal chest X-ray IS NOT CAUSED BY OR A RESULT OF Sinusitis or service." The Court found that the VA examiner who presented the above opinion did not provide a rationale that adequately explained why she felt that a pulmonary condition did not exist despite X-ray impressions that, in fact, clearly identified the presence of COPD. Thusly, in the absence of an adequate rationale reconciling the conflicting conclusions of the VA examiner with the clinical record (including a contemporaneous X-ray study) showing COPD, the Court remanded the case to the Board so that it could refer the matter for a new examination to resolve this inconsistency. The Court also found that the examiner's failure to perform a PFT test was an omission that was in substantial noncompliance with the November 2010 Board remand's instruction to perform "[a]ll appropriate tests and studies" in connection with the examination. [See Stegall v. West, 11 Vet. App. 268 (1998): A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order. See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999): Exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions.] The Court further found that the absence of a PFT rendered the December 2010 VA examination inadequate for rating and adjudication purposes, as COPD was a pulmonary disability that the applicable VA regulations defined entirely in terms of PFT results, and a PFT was therefore necessary to objectively substantiate the presence (or absence) of COPD. Therefore, because no PFT was conducted concurrent with the December 2012 medical examination, the examination was inadequate. Accordingly, in view of the foregoing discussion, and because the Board is bound by the determinations of the Court in its October 2012 order, the case is REMANDED to the RO for the following action: 1. Following consultation with the Veteran, and after obtaining the appropriate waivers, the RO shall attempt to obtain all relevant VA medical records generated since the time of the December 2012 VA examination, and any other medical records as may be available from private sources that are identified by the Veteran. If any outstanding records identified as relevant are unobtainable, the RO should prepare a memorandum stating the efforts undertaken to obtain them and the reasons why they were unobtainable. 2. The RO shall schedule the Veteran for a new VA examination by the appropriate clinician to assess the nature and etiology of his claimed lung disorder. The entire claims file must be made available to the physician designated to examine the Veteran, and the examination report shall include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Pursuant to the October 2012 order of the Court, this examination must include a PFT to objectively confirm the Veteran's pulmonary diagnosis/diagnoses. (a.) The examiner is asked to identify any and all lung disorders present and make a definitive diagnosis of each current pulmonary disorder, reconciling any conflict or contradiction between the current diagnosis/diagnoses with the prior diagnosis/diagnoses of record. The examiner should provided a detailed supportive clinical rationale as to why he/she agrees with, or refutes each prior pulmonary diagnosis/diagnoses, and an explanation of the opinions presented. (b.) For each current pulmonary diagnoses made, the examiner is requested to present an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed lung disorder is etiologically related to the Veteran's service-connected sinusitis, or is otherwise related to his periods of active military service. (c.) In this regard, if the examiner should conclude that the Veteran does not currently have an active and disabling respiratory pathology, he should nevertheless comment on whether any prior lung disorder documented a being "diagnosed" during the pendency of the claim for the period commencing in May 2003 is accurate; and if so, whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any such disability is etiologically related to the Veteran's service-connected sinusitis, or is otherwise related to his periods of active military service. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. The examiner should use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent); at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent 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. 3. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence obtained. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order. Stegall v. West, 11 Vet. App. 268 (1998). _________________________________________________ JONATHAN B. KRAMER 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).