Citation Nr: 1317830 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 08-01 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a condition of the lungs and breathing, other than calcification of the lungs. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1978 to April 1982. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for entitlement to service connection for calcification of the lungs. In an April 2009 decision the Board denied the Veteran's claim for entitlement to service connection for calcification of the lungs. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2010 memorandum decision, the Court affirmed that part of the Board's April 2009 decision denying entitlement to service connection for calcification of the lungs, and set aside that part of the Board's decision implicitly denying entitlement to service connection for other problems with the Veteran's lungs and breathing and remanded the matter to the Board for further proceedings consistent with the memorandum decision. In May 2012, the claim was remanded to the RO for additional development. The case has returned to the Board for additional appellate consideration. The Board notes that a Central Office hearing was scheduled for October 3, 2011; however, in August 2011, the appellant, through her representative, submitted a statement indicating that she wished to withdraw her hearing request. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND While further delay is regrettable, the Board finds that an additional remand is necessary. In the August 2010 memorandum decision, the Court affirmed the denial of service connection for lung calcification in the April 2009 Board decision. However, the Court determined that the Board failed to recognize that the Veteran's claim for VA benefits reasonably and sympathetically could be read to include a claim for benefits for problems with her lungs and breathing. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). On the April 2007 VA examination, the Veteran complained of becoming short of breath going up stairs and with exercising, but was able to do Pilates for 35-40 minutes without difficulty. The Court noted that the April 2007 VA examination report reflected that the Veteran was diagnosed with dyspnea, but the examiner did not review the claims file and offered no opinion as to the cause of the Veteran's diagnosed dyspnea, and the Veteran was advised to follow-up with her doctor with regard to her dyspnea. Additionally, the Court observed that the radiology report ordered by the VA examiner on the same day of the examination recommended previous chest X-rays be compared and states: "MAJOR ABNORMAILTY, ATTENTION, ALERT*." The Court determined that in the context of the required sympathetic reading of the Veteran's claim to be one for benefits for, inter alia, shortness of breath, the Board should have sought further information regarding the etiology of the Veteran's dyspnea or explained why such information was not needed. Bowling v. Principi, 15 Vet. App. 1 (2001). In May 2012, the Board remanded the claim for an examination to be scheduled. Subsequently, the Veteran underwent a VA examination in December 2012. The examiner reported that the Veteran did not have a pulmonary disease. The PFT showed a mild restrictive defect which the examiner stated was most likely related to obesity/poor effort. The examiner opined that it was less likely than not that the Veteran had any residual pulmonary problems. The Veteran's attorney has argued that the examiner's discussion of dyspnea and whether such is a diagnosed disability was not sufficient. The Board acknowledges the examiner stated that the Veteran "has subjective complaint (symptom) of dyspnea", which appears to indicate that the examiner is indicating dyspnea is a symptom. However, it is not entirely clear that the sentence means that dyspnea is only a symptom versus a disability in and of itself causing a subjective complaint. As this case has already been the subject of a memorandum decision of the Court, the Board finds that further clarification is necessary. Thus, the claims file and examination report should be returned to the physician who conducted the December 2012 VA respiratory examination for clarification. Accordingly, the case is REMANDED for the following action: 1. Please return the claims file and the December 2012 examination report to the physician who conducted that examination, if available, for an addendum opinion. If further examination is necessary, such should be scheduled. If the original examiner is not available, the claims file should be forwarded to another physician to obtain the requested opinion. Following review of the claims file, the examiner should respond to the following: a. Is the Veteran's dyspnea a diagnosed disability in and of itself? Please explain why or why not. In providing this explanation, please address the April 2007 examination where the examination report stated: "DIAGNOSIS: Dyspnea. No pulmonary condition was identified at this time ... No specific pulmonary cause of the dyspnea was determined at this time." b. If it is a diagnosed disability, is the disability at least as likely as not related to her military service, to include her claimed exposure to fumes? Please explain the reason for the opinion. 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). _________________________________________________ K. A. BANFIELD 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).