Citation Nr: 1314035 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-23 091A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION 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 Veteran served on active duty with the United States Marine Corps from July 1958 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Atlanta, Georgia, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which declined to reopen a previously denied claim of service connection for COPD. In a September 2012 decision, the Board found that reopening of the claim was appropriate, and remanded the merits of the underlying matter to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development and adjudication. Such directed actions having been taken, the claim is returned to the Board. At this time, the Board has recharacterized the issue to better reflect the evidence of record and the allegations of the Veteran; at the January 2013 VA examination, three respiratory conditions were diagnosed. Service connection for one, pulmonary fibrosis, was granted by the AMC in a March 2013 rating decision. The current appeal has been expanded to include consideration of both remaining diagnoses. The Veteran, as a layperson, is not competent to distinguish between competing diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the Veteran effectively has claimed service connection for respiratory problems, his claim encompasses both COPD and thoracic kyphosis, a diagnosed restrictive disease. In July 2009, the Veteran expressed his desire for a hearing before a Veterans Law Judge, to be held at the Board's Washington, DC, offices. However, he withdrew that request in June 2012. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. The appeal is again REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND Remand is required for compliance with VA's duties to notify and assist the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran had indicated that he was in receipt of disability compensation from the Social Security Administration (SSA); the RO sought to obtain these records in July 2011, but was informed by SSA that they had been destroyed. While the RO drafted and included in the claims file a September 2011 memorandum formally finding the records unavailable, it failed to notify the Veteran of the inability to secure the records. That notice is required. 38 C.F.R. § 3.159(e). Remand is required for compliant notice. Further, upon receipt of a claim, VA most inform the Veteran of the elements of his claim, the evidence and information necessary to substantiate that claim, and the respective responsibilities in obtaining such. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The January 2013 VA examiner has diagnosed a restrictive breathing condition, thoracic kyphosis, which the Board has determined must be included in the consideration of the Veteran's claim. A review of the claims file indicates that secondary service connection, due to the service-connected back disability, is possible. This is a theory of entitlement not previously considered, and the notice already provided to the Veteran did not address it. Accordingly, on remand a new notice letter addressing secondary service connection is necessary. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran has reported that he has been treated at VA since 1992; a review of the claims file shows records from 1993-1994 and 1999-2001 are of record, as well as periods of records since 2007. There are gaps in the VA records, and efforts to fill those gaps must be undertaken. On remand, appropriate requests for complete VA records since 1992 must be made. Finally, with regard to COPD, remand is required for clarification of the January 2013 VA examination and medical opinion. The examiner's opinion failed to clearly address whether COPD was in any way caused by asbestos exposure, and appears limited to a discussion of the role of herbicide exposure in COPD, as a chronic occupational lung disease. The doctor made statements to the effect that even short term exposure to asbestos, as is shown here from brake pads, can cause occupational, substance-related lung conditions, but he did not specifically exclude COPD from that category. Remand is required to clarify the doctor's statements. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. Contact the appellant and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must include information regarding secondary service connection with regard to thoracic kyphosis and a back disability. 2. The Veteran must additionally be informed of the unavailability of SSA records pursuant to 38 C.F.R. § 3.159(e). Notify the Veteran (a) that SSA records could not be obtained; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Associate with the claims file complete VA treatment records from the medical centers in Augusta, Georgia, and Charleston, South Carolina, and all associated clinics (particularly the Savannah Community Based Outpatient Clinic), as well as any other VA facility identified by Veteran or in the record, for the period of January 1992 to the present. All efforts must be documented in the record, and must include specific requests to search and/or recall any archived or otherwise stored records. 4. Return the claims file to the examiner who conducted the January 2013 VA Respiratory Conditions examination. If that examiner is not available, another qualified examiner should be consulted. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that COPD is caused by exposure to asbestos in service. The examiner should state whether it is at least as likely as not (50 percent probability or greater) that COPD is caused by exposure to diesel fuel, grease, and generator fumes while in active service. The examiner should also state whether it is at least as likely as not (50 percent probability or greater) that COPD is caused by presumed exposure to herbicides in service. In this regard, the Veteran asserted in a July 2011 statement that while in Vietnam he was exposed to Agent Orange every day. Further, following review of the complete claims file, the examiner should opine as to whether the restrictive impairment from thoracic kyphosis is at least as likely as not (50 percent probability or greater) caused by the service-connected lumbosacral strain and degenerative disc disease. The examiner should also opine as to whether the restrictive impairment from thoracic kyphosis is at least as likely as not (50 percent probability or greater) aggravated (i.e., worsened) beyond the natural progress by the service-connected lumbosacral strain and degenerative disc disease. A new respiratory examination is not required unless the reviewer determines such is necessary to adequately respond to the Board's inquiries. A full and complete rationale is required for all opinions expressed. 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The SSOC should consider the provisions of 38 C.F.R. § 3.310 (2012) with respect to the restrictive lung disease due to kyphotic restriction, if the disability is not service-connected on remand. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ S. S. TOTH 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).