Citation Nr: 1316545 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-08 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a chronic respiratory disorder, claimed as chronic bronchiectasis and restrictive airway disease. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from June 1984 to June 1987. The appeal comes before the Board of Veterans Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 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 After a review of the record, the Board has concluded that a remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. The Veteran essentially contends that he has a respiratory disorder that was incurred or aggravated in service. Pertinent VA law and regulations provide that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). While the Veteran reported pneumonia as a baby upon enlistment, the Board observes that a mere self-report of symptoms prior to service does not constitute clear and unmistakable evidence of a preexisting condition. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a Veteran's self-report that he had previously suffered from 'depression or excessive worry' prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C.A § 1111). Service treatment records (STR) indicate a provisional diagnosis of bronchiectasis. In a June 1983 enlistment report of medical history, the Veteran reported a history of asthma. He stated that he had pneumonia at two days old in 1966. The examiner noted no asthma since infancy. In a June 1987 STR the examiner noted that the primary marker suggests, but is not diagnostic of, bronchiectasis. The examiner further noted that: . . . symptoms and chest x-ray findings are not determinative enough to give a definite diagnosis of chronic bronchiectasis but his symptoms (chronic cough) are secondary to airway damage probably done at time of pneumonia as an infant (i.e. mild bronchiectasis). Need to assess for element of reversible airway disease as well. The Veteran underwent a pulmonary function test (PFT) in June 1987. A separation examination is not included in the claims file. Post-service treatment records dated in June 2005 and September 2006 show diagnosis of chronic bronchiectasis. The report also referenced in-service chest x-rays which show bronchiectasis in both lower lobes. A VA examination report dated in October 2007 includes a review of the claims file and an opinion that the Veteran's reactive airway disease diagnosed in service was secondary to childhood pneumonia and not due to or aggravated by military service. The examiner also opined that the Veteran's possible chronic bronchiectasis also noted in service was secondary to pneumonia as an infant and not due to or aggravated by military service. The examiner did not address whether there was evidence of a pre-existing condition upon enlistment into active service. The Board is of the opinion that on remand a VA examination would be probative in ascertaining whether there is clear and unmistakable error that a respiratory disorder pre-existed the Veteran's active military service; and if so, then whether such respiratory disorder was aggravated during service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to ascertain the nature and etiology of any current respiratory disorder, including specifically an assessment as to whether any current respiratory disorder is etiologically related to service. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should determine the diagnoses of any currently manifested respiratory disorder(s). For each disorder identified, the examiner should indicate: a) Whether the disorder clearly and unmistakably existed prior to the Veteran's entrance onto active duty. If the examiner determines the Veteran had a pre-existing disorder, the examiner should specifically provide a rationale for that opinion. The examiner should be advised that 'Clear and unmistakable evidence' means with a much higher certainty than 'as likely as not' or 'very likely'. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an 'onerous' evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be 'undebatable.' Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). b) For each disorder that clearly and unmistakably existed prior to service, the examiner should proffer an opinion as to whether the disorder clearly and unmistakably DID NOT increase in severity beyond the natural progression of the disorder during active duty. c) For any respiratory disorder that did not clearly and unmistakably exist prior to active duty and was not aggravated by active duty, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is related to his military service, to include any respiratory treatment or complaints during service. The diagnosis(es) must be based on examination findings, all available medical records, and any special testing (including a PFT) deemed appropriate. In addition, the examiner must comment on the approximate date of onset and etiology of any diagnosed respiratory disorder as shown by the evidence of record. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. 2. Notify the Veteran that it is his responsibility to report for the scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 3. Readjudicate the Veteran's claim, to include consideration of any additional evidence obtained as a result of this remand. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. 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). _________________________________________________ DAVID L. WIGHT 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).