Citation Nr: 1314384 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 07-11 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for residuals of pneumonia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from January 1966 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The rating decision denied the Veteran's petition to reopen claims for service connection for asthma and residuals of pneumonia. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in Louisville, Kentucky. In July 2010, the Board reopened the Veteran's claims and remanded them for further development. In August 2011, the Board denied his claims. The Veteran appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and in a November 2012 Memorandum Decision, the Court vacated the Board's August 2011 denial and remanded the matter to the Board for development consistent with the Memorandum Decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 In August 2011, the Board denied the Veteran's claims, in part relying on the opinion of the clinician who conducted the Veteran's November 2010 VA examination. In its November 2012 Memorandum Decision, the Court found that the November 2010 opinion was inadequate because the examiner's rationale was insufficient. The examiner diagnosed the Veteran with a "severe restrictive pulmonary deficit" and concluded that it was not consistent with chronic obstructive pulmonary disease (COPD) and that other diagnostic studies failed to demonstrate objective findings related to pneumonia. The examiner concluded that the Veteran's lung condition was not caused by or the result of pneumonia or asthma with bronchitis, and reasoned that there was no objective evidence of residuals of pneumonia. The Court found that the examiner did not "explain his rationale for concluding that [the Veteran's] current lung condition is not related to his in-service respiratory problems," and as a result the opinion was inadequate and that for the Board to rely on it was erroneous. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A remand is necessary in this case to obtain an addendum opinion from the November 2010 VA examiner. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the November 2010 examination. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the examination is to determine whether the Veteran has asthma with bronchitis and/or residuals of pneumonia that had its onset or was aggravated during active service, or is otherwise related to any incident of service. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has asthma with bronchitis and/or residuals of pneumonia began during active service or are related to any incident of service. c) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. d) The examiner must specifically explain the rationale for concluding that the Veteran's current lung condition, diagnosed as a severe restrictive pulmonary deficit, is not related to his in-service respiratory problems. e) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. 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 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 (Continued on the Next Page) 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. L. Kennedy 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).