Citation Nr: 1314401 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 04-14 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disorder (COPD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to May 1965 and from August 1966 to August 1971. He was enlisted in the Oklahoma National Guard from July 1986 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In January 2008, January 2011, and October 2012 the Board remanded the case to the agency of original jurisdiction (AOJ) for additional 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 Service treatment records from the Veteran's period of active service demonstrate recurring treatment for upper respiratory infections and sinusitis. In March 1964, his symptoms included headaches, rhinorrhea, slight wheezing in the chest, and sneezing. Post-service treatment records reflect that in April 1996, a pulmonary function test (PFT) resulted in a finding of minimal obstructive defect and moderate hypoxemia. A January 1996 record shows a diagnosis of COPD and bronchitis. Records from 1994 to 1996 show ongoing upper respiratory symptoms, such as coughing, congestion, and burning in the chest variously diagnosed as chronic sinusitis and/or bronchitis. A January 1996 record states that the Veteran had two bouts of pneumonia in the last few years. He had been a previous smoker for eight years. He experienced shortness of breath and fatigued easily. The assessment was COPD secondary to either his previous history of smoking and pneumonia, or also he had coal dust exposure. Private records received by the VA in July 1996 demonstrate that the Veteran was considered to be highly allergic to many different stimulus in and out of the home. In September 1996, a possible cardiac etiology for his symptoms of shortness of breath and chest pain was ruled out on catherization. An October 1996 letter from the Veteran's physician stated that the Veteran had developed some COPD which maybe was an extension of his chronic sinusitis and allergies. On December 1996 VA examination, the Veteran reported that he began having trouble with sinus infections and recurrent upper respiratory infections in 1963, with symptoms of pressure in his head with headaches, sore throat, nasal congestion, and rhinorrhea. In the past years he had shortness of breath which had become worse with wheezing. The symptoms were worse around grass. He had had frequent sinus infections and a productive cough. The examiner concluded that the Veteran's COPD was more likely related to his history of cigarette smoking. His history was consistent with reactive airway disease which had an allergic etiology. Therefore, his COPD was not due to his sinus condition. A 1999 PFT showed minimal obstructive lung defect. An additional restrictive lung defect could not be excluded. A May 1999 thorough respiratory examination resulted in the diagnosis of dyspnea, possible restrictive pulmonary disease, and known coronary artery disease not clinically significant. An August 1999 private record diagnoses the Veteran with possible bronchial asthma, restriction probably due to obesity, known coronary artery disease, and COPD in an ex-smoker. In March 2000, the Veteran was using steroid inhalers to control his pulmonary fibrosis/COPD. VA treatment records demonstrate that in July 2001, the Veteran had "end exp wheezing upper lobe right." He had had sinus congestion and wheezing. The ongoing diagnosis was chronic sinusitis and asthma. In March 2003, he was diagnosed with severe obstructive sleep apnea. In November 2003, a CTscan was reviewed to show maxillary ethmoid disease. He had allergies and chronic sinusitis. Examination showed chronic nasal obstruction. In January 2004, the Veteran was referred for a septoplasty. It was noted that on May 2003 PFT, there was a restrictive defect only. In July 2006, the Veteran was suffering from a cough with yellow sputum and nose congestion. He was having trouble using his bipap mask at night. The assessment was sleep apnea, chronic sinusitis, and asthma. In January 2007, although it was noted that the Veteran had COPD in the past, current examination instead resulted in the same continuing diagnosis of OSA and chronic sinusitis. On May 2011 VA examination, the examiner found no indication of a diagnosis of COPD in the VA treatment records. The examiner noted that the Veteran smoked but quit in 1982. He currently suffered from recurrent episodes of nasal obstruction and purulent rhinorrhea. Because there was no indication of a diagnosis of COPD, the examiner did not provide an etiological opinion. On November 2012 VA examination, the examiner did not diagnose COPD, but rather diagnosed the Veteran with asthma, stating that the Veteran's asthma was not related to service or the service-connected sinusitis. In this case, it remains unclear whether the Veteran actually has COPD, or has suffered from COPD, during the pendency of the appeal, or, since July 2002. Although there is a diagnosis of COPD in the 1990s, since 2002, the record has not clearly shown that diagnosis to be present. Instead, since 2002, it appears that he has been treated for asthma and chronic sinusitis. The May 2011 and November 2012 VA examiners did not diagnose COPD. Therefore, such a diagnosis must be established prior to determining entitlement to service connection for that disease. If the Veteran does suffer from COPD, or has suffered from COPD at anytime during the appeal period, an adequate opinion as to whether his service-connected sinusitis has aggravated his COPD must be obtained. While the November 2012 VA examiner stated that there was no aggravation, the rationale provided discussed the Veteran's lack of symptoms in service and did not address why the Veteran's sinusitis had not aggravated his COPD. Therefore, a new opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the November 2012 VA examiner or, if that examiner is not available, another appropriate VA examiner. If it is determined that a new VA examination is necessary to obtain needed medical information, schedule the Veteran for a new VA examination. The examiner should review the claims file and note that review. A full and well-reasoned rationale must be provided for all opinions reached. a) Does the Veteran currently suffer from COPD? b) Has the Veteran suffered from COPD since July 2002? If not, explain why you determine that the Veteran instead suffered from a different respiratory disease and indentify that disease. c) If the answer to a) or b) is affirmative, is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's service-connected sinusitis i) caused or ii) aggravated his COPD. Aggravation is defined as a permanent worsening of the disease, rather than temporary flare-up. 2. Then, readjudicate the claim. If the decisions remain adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. 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 Supp. 2012). _________________________________________________ MILO H. HAWLEY 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).