Citation Nr: 1314632 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-32 406 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for sarcoidosis, to include as due to Agent Orange exposure, or as secondary to service-connected residuals of a shell fragment wound to the chest. REPRESENTATION Appellant represented by: Michael V. Quatrini, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to September 1969, to include service in Vietnam. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2009 rating decision, in which the RO denied service connection for sarcoidosis. In March 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2010, and the Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2010. In his August 2010 substantive appeal, the Veteran requested a Board video-conference hearing. The requested hearing was held in June 2011 before the undersigned Veterans Law Judge and a transcript of this hearing has been associated with the claims file. During the hearing, the Veteran's attorney requested, and the undersigned granted, a 60-day abeyance period for the submission of additional evidence in support of the claim on appeal. Thereafter, the Veteran's attorney then requested two subsequent extensions to procure additional evidence. No action was taken to specifically grant these extensions; however, in November 2011 the Board received additional evidence from the Veteran's attorney with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). As noted on the title page, the Board has recharacterized the Veteran's claim to reflect alternate theories of entitlement to service connection raised by the Veteran and/or his attorney.. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. REMAND The Veteran seeks service connection for sarcoidosis, which he claims is either a direct result of Agent Orange exposure, or was aggravated by his service-connected residuals of a shell fragment wound to the chest. He also contends that his sarcoidosis had its onset within one year of service separation. In this case, the Veteran has verified service in Vietnam during the Vietnam Era, and is therefore presumed to have been exposed to herbicides, including Agent Orange. 38 U.S.C.A. § 1116(f) (West 2002) and 38 C.F.R. § 3.307(a)(6)(iii)-(iv) (2012). Although sarcoidosis is not on the list of chronic diseases deemed etiologically related to herbicide exposure (for which presumptive service connection based on such exposure may awarded), the Veteran may still establish service connection on a direct basis as due to Agent Orange exposure if medical evidence establishes such a nexus. Additionally, presumptive service connection may be awarded for sarcoidosis if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Here, service treatment records are negative for complaints relating to sarcoidosis; the earliest medical evidence of record showing treatment for and a diagnosis of, sarcoidosis is dated June 2008. When the Veteran initially filed his claim, he stated he was seeking service connection for sarcoidosis as secondary to his service-connected gunshot wound residuals. In September 2008, the Veteran underwent a VA examination by a nurse practitioner. The examiner opined that it was not likely that the Veteran's sarcoidosis was secondary to his chest injury, reasoning that trauma is not a cause of sarcoidosis. In the February 2009 rating decision, the RO denied the Veteran's claim, finding that his sarcoidosis was not related to service-connected residuals of a shell fragment wound to the chest. The RO further found that there was no evidence that sarcoidosis occurred in service, was aggravated by service, or became manifest to a compensable degree within one year of service discharge. In the Veteran's March 2009 NOD, he stated that he believed that his claim had been mischaracterized by the RO, and that his argument was that his sarcoidosis was aggravated-not caused-by the service-connected residuals of a shell fragment wound to the chest. During the June 2011 Board hearing, additional theories of entitlement were presented. The Veteran testified that his disability had its onset in approximately August 1970 (within the first post-service year). He recounted experiencing shortness of breath, for which he visited a VA emergency room. The Veteran stated no tests were performed, and that the physician told the Veteran his symptoms were probably a result of not being used to the heat and humidity. He stated he was given a voucher for an air conditioner. The Veteran further testified that, between his initial episode in 1970 and eventual diagnosis of sarcoidosis in 2008, he suffered the same shortness of breath approximately six or eight times, with symptoms lasting a day or two, for which he did not seek medical treatment. (Records from the Veteran's reported emergency room visit are not of record). Also during the hearing, the Veteran's attorney argued that the Veteran's sarcoidosis could be a direct result of the Veteran's Agent Orange exposure. He also expressed doubt over the adequacy of the Veteran's September 2008 VA examination, stating his belief that a pulmonologist was required to evaluate a disease like sarcoidosis. Following the hearing, the Veteran's attorney submitted two letters from a private physician, Dr. R.M.Z, a Board-certified pulmonologist. In his letters, Dr. R.M.Z. opined that it was more likely than not that the symptoms the Veteran experienced in 1970 were due to an onset of sarcoidosis. The physician further stated that, while common sense would suggest a link between Agent Orange and sarcoidosis, he knew of no medical studies or literature which concludes there is more likely than not a relationship. The physician also added that, in the Veteran's case, Agent Orange exposure was irrelevant to the onset of sarcoid and its symptomatology at that time. Here, the Board finds that further development is warranted to adequately address various theories of entitlement raised by the record. As indicated above, while the Veteran's private physician expressed his belief that symptoms experienced by the Veteran in 1970 were likely the onset of sarcoidosis, he did not provide a rationale for this opinion; and, even if sarcoidosis was present at that time, it has not been established whether it was manifested to a compensable degree. Moreover, that physician comments regarding a relationship between the development of sarcoidosis and Agent Orange exposure seem to conflict. As for the matter secondary service connection, the Board notes that the only opinion obtained on this point was provided by a VA nurse practitioner, and that the opinion is incomplete as it did not address the question of aggravation by the service-connected residuals of a shell fragment wound to the chest-which the Veteran has specifically alleged. Under these circumstances, the Board finds that a VA examination and medical opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-would be helpful in resolving the Veteran's service connection claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging to obtain an additional medical opinion in connection with this claim, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. In this regard, the record does not suggest that the Veteran receives VA care for his sarcoidosis (other than his reported August 1970 emergency room visit), but rather that he has sought private treatment for such. Accordingly, the RO should give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran provide, or provide information regarding, records of emergency room treatment in approximately August 1970, as well as that he furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication the claim should include consideration of all additional evidence added to the claims file since the RO's last adjudication of the claim-to include, for the sake of efficiency, evidence submitted directly to the Board in November 2011 (notwithstanding the waiver of initial RO consideration of the evidence). Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide, or provide information regarding, records of emergency room treatment in approximately August 1970, as well as that he furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo a VA examination by an appropriate physician (preferably, a pulmonologist) to assess the etiology of documented sarcoidosis. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should provide an opinion, consistent with sound medical principles, addressing the following: a) whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's sarcoidosis had its onset within the first year following service discharge, and, if so, whether the disability was manifested to a compensable degree (by pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids); or, if not, then: b) whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's sarcoidosis is the result of Agent Orange exposure; or, if not, then. c) whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's sarcoidosis was caused or aggravated (worsened beyond the natural progression) by his service-connected residuals of a shell fragment wound to the chest. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinion, the examiner should consider and discuss all pertinent lay and medical evidence, to include the private opinions from Dr. R.M.Z., referenced above, and the Veteran's written statements and hearing testimony. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached in a printed (typewritten) report. 4. If the Veteran fails to report to the examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter remaining on appeal in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).