Citation Nr: 1318508 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 05-09 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disability, however diagnosed (to include asthma), to include as due to an undiagnosed illness, and/or asbestos exposure, or as seconcary to service-connected gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to August 2002, which included service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The issues of entitlement to an increased rating for a low back disability, and whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 The Veteran alleges that service connection is warranted for a respiratory disability. He reports that he developed a cough during service, beginning as early as September 1991, following his return from service in Southwest Asia. He contends that he has a current respiratory disability, manifested primarily by a chronic cough, which is related to his active duty service. He alleges several theories of entitlement to service connection, including that service connection for a respiratory disorder is warranted based on exposure to asbestos during service, that entitlement to service connection is warranted on a direct basis, and that entitlement to service connection is warranted pursuant to 38 C.F.R. § 3.317 on the basis that his respiratory disorder is an undiagnosed illness entitled to service connection based on his service in Southwest Asia during the Persian Gulf War. Additionally, one of the service treatment records suggests a link between the Veteran's reported symptoms of cough and GERD, and GERD is a service-connected disability. Thus, the Board will also consider entitlement to service connection on a secondary basis. The medical evidence of record shows complaints of cough during service, beginning in June 1997. A March 2002 record notes a diagnosis of "cough variant asthma" with objective evidence of inspiratory wheezing on physical examination. The post-service medical evidence reflects continued complaints of cough without a determination as to the underlying cause of the symptom. In July 2012, the Veteran was provided with a VA examination to determine the existence and etiology of any respiratory disorder. The VA examiner concluded that, based on testing including a computed tomography scan of the chest and pulmonary function tests, there was no evidence of a chronic respiratory disorder. However, the VA examiner did not address the diagnosis of "cough variant asthma" made in March 2002. Thus, the Board believes that the Veteran's claim should be returned to the examiner who provided the July 2012 examination for a supplemental opinion addressing the evidence in the claims file which suggests that the Veteran's cough is a symptom of a diagnosed disability. Additionally, the examiner should provide an opinion as to whether the Veteran's cough is a manifestation or symptom of an undiagnosed respiratory disorder and also whether the Veteran's cough is a symptom of his service-connected GERD. If a diagnosis of a respiratory disorder is made, the examiner should provide an opinion as to whether the Veteran's respiratory disorder is directly related to service, whether it is related to his in-service asbestos exposure, and whether it was caused or aggravated by his service-connected GERD. A complete rationale for all opinions must be provided. If the examiner who provided the July 2012 examination is no longer available, the Veteran should be provided with a new VA examination thoroughly discussing his case. Also, although the Veteran's claims file shows that he served in Southwest Asia during the Persian Gulf War, the exact dates of his service in Southwest Asia are not of record, and may be relevant to establishing his claim under 38 C.F.R. § 3.317. Accordingly, the RO should verify the Veteran's dates of service in Southwest Asia during the Persian Gulf War. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), or any other appropriate location, and obtain verification of the Veteran's period of service in Southwest Asia during the Persian Gulf War. 2. The RO must return the Veteran's claims file to the VA examiner who conducted the July 2012 VA examination concerning the Veteran's claimed respiratory disability for additional explanation and rationale. The Veteran's claims file, all electronic records, and a copy of this Remand must be made available to and reviewed by the examiner. The examiner is requested to provide an addendum opinion that reconciles her finding that there was no evidence that the Veteran had a chronic respiratory disability with the medical evidence of record suggesting that the Veteran does have a diagnosed respiratory disorder, including the March 2002 treatment record providing a diagnosis of "cough variant asthma." The examiner must also provide an opinion as to: Whether it is at least as likely as not that the Veteran's cough is a manifestation or symptom of an undiagnosed respiratory disorder, and also Whether it is at least as likely as not that the Veteran's cough is a symptom of his service-connected GERD? The examiner must state whether there are objective indications of a chronic respiratory disability, to include both signs in the medical sense of objective evidence perceptible to an examining physician or other non-medical indicators capable of independent verification. The examiner should state whether any respiratory symptoms can be attributed to a known clinical diagnosis. If a diagnosis of a respiratory disorder is made, the examiner must provide an opinion as to: Whether it is at least as likely as not that any identified respiratory disorder is directly related to service, to include in-service asbestos exposure, and Whether it it is at least as likely as not that any identified respiratory disorder is proximately due to, or chronically aggravated by, his service-connected GERD? A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. If the examiner who provided the July 2012 VA examination is no longer available, the RO must provide the Veteran with a new VA respiratory examination to determine the existence and etiology of any respiratory disorder found. The Veteran's claims file, all electronic records, and a copy of this Remand must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a review and discussion of all of the service and post-service treatment records as well as the Veteran's lay statements of record, the VA examiner must provide opinions as to: Whether the Veteran has a currently diagnosed respiratory disorder to include whether there are objective indications of a chronic respiratory disability, (i.e. any respiratory symptoms can be attributed to a known clinical diagnosis), to include signs in the medical sense of objective evidence perceptible to an examining physician or other non-medical indicators capable of independent verification? If no diagnosed respiratory disorder is found, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's symptoms are a manifestation of an undiagnosed respiratory disorder. If the examiner makes a diagnosis of a current respiratory disorder, the examiner must provide opinions as to: Whether it is at least as likely as not that any identified respiratory disorder is etiologically due to his active duty service, to include the in-service complaints of cough and diagnosis of "cough variant asthma" in March 2002, or in-service exposure to asbestos; and Whether it is at least as likely as not that any identified respiratory disorder is proximately due to or chronically aggravated by service-connected GERD? A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. The RO must notify the Veteran that it is his responsibility to report for all scheduled examinations 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 any of the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the medical report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ U. R. POWELL 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).