Citation Nr: 1319699 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 11-08 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lung disorder, to include chronic obstructive pulmonary disease. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to November 1945, from December 1950 to September 1952, and from October 1952 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND When the Board last reviewed the case in November 2012, it noted the Veteran's current diagnosis of chronic obstructive pulmonary disease (COPD), contentions of shortness of breath during and after active service, and treatment for COPD since approximately 1989. The Board found that the evidence of record indicated a possible etiological relationship between the Veteran's current COPD and active service, however, deemed the evidence of record insufficient for rating purposes. As such, the issue was remanded for a VA examination to determine if any current lung disorder, including, but not limited to COPD, was incurred in or due to active service. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a VA examination in December 2012 during which the examiner diagnosed asthma, emphysema, and COPD. The examiner offered an opinion as to the etiology of the Veteran's emphysema and COPD; however, failed to offer an any opinion as to the etiology of the Veteran's asthma, to include whether it had its onset in or was otherwise related to his active service. The December 2012 VA opinion is inadequate for the purposes of adjudicating the appeal. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Accordingly, a medical opinion addressing the etiology of the Veteran's current asthma disorder is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there has not been substantial compliance with the November 2012 remand directives, the case must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is remanded for the following actions: 1. The claims file and all records on Virtual VA must be made available to the December 2012 VA examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. If the VA examiner who conducted the December 2012 examination is unavailable, an appropriate VA examiner must be directed to provide the supplemental finding to the December 2012 VA examination. If the VA examiner determines another examination is necessary to provide the finding, an examination must be scheduled. The examiner must express an opinion as to whether the Veteran's currently diagnosed asthma disorder had its onset in or is related to his active service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 2. The examination report must be reviewed 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. 3. After completing the above actions, the RO must readjudicate the Veteran's claim, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If the benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).