Citation Nr: 1320236 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-21 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for reactive airway dysfunction syndrome. 2. Entitlement to service connection for chronic obstructive pulmonary disease, including as secondary to reactive airway dysfunction syndrome. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1956 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied service connection for a respiratory condition. The RO in Detroit, Michigan, currently has jurisdiction. The Veteran was scheduled to appear at a videoconference hearing before a Veterans Law Judge (VLJ) in May 2013, but failed to appear. Neither he nor his representative has filed a motion for a new hearing date following his failure to appear at the May 2013 hearing. As such, the case will be processed as if the Veteran withdrew his hearing request. 38 C.F.R. § 20.704(d) (2012). The issue of entitlement to service connection for a respiratory condition has been recharacterized as two separate claims as these claims are based on distinctly and properly diagnosed diseases: (1) entitlement to service connection for reactive airway dysfunction syndrome and (2) entitlement to service connection for COPD. See Boggs v. Peake, 520 F.3d 1330 (2008) (holding that claims that are based on distinctly and properly diagnosed diseases or injuries must be considered as separate and distinct claims). In correspondence received on September 2011, the Veteran's representative raised the issue of entitlement to a compensable rating for service-connected bilateral hearing loss. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for COPD, including as secondary to reactive airway dysfunction syndrome, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The Veteran's currently diagnosed reactive airway dysfunction syndrome is causally related to prolonged exposure to tear gas during active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for reactive airway dysfunction syndrome have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided by the Veterans Claims Assistance Act (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). In this decision, the Board grants service connection for reactive airway dysfunction syndrome. This is a complete grant of the benefits for reactive airway dysfunction syndrome sought on appeal; the Veteran's separated claim for COPD has been remanded for further development. As any deficiency in VA's compliance with the duty to notify and assist on this claim would therefore constitute harmless error, no further discussion of these duties is necessary. See Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009) (holding that harmless error is a case-specific determination and the Veteran carries the burden of showing prejudice); 38 C.F.R. § 20.1102. The Veteran contends that he was exposed to tear gas in May or June of 1956 during basic training at Lackland Air Force Base when he lost his gas mask during a training exercise in the gas house and suffered prolonged, unprotected exposure to the gas trying to find it. He asserts that he was immediately hospitalized with a persistent cough and swelling of the throat that prevented him from swallowing food, and that ever since that time he has experienced symptoms of coughing and throat constriction whenever he is exposed to aerosol sprays and perfumes. 38 U.S.C.A. §§ 1110 and 1131 provide compensation to wartime and peacetime Veterans for disabilities resulting from injuries or diseases incurred or aggravated during active duty. The Veteran must establish: "(1) the existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Morris v. Shinseki, 678 F.3d 1346, 1353 (Fed. Cir. 2012) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In June 2007, the Veteran was provided with a VA examination. The examiner diagnosed the Veteran with reactive airway dysfunction syndrome as a result of exposure to high concentrations of irritants during service, as described by the Veteran. The examiner explained that the airway irritability referred to as reactive airway dysfunction syndrome tends to persist after the instance of causal exposure and can be provoked by irritants such as aerosols, perfumes, and cigarette smoke. Further, once reactive airway dysfunction develops, the airborne concentrations of irritants required to provoke a reaction may be significantly lower than the concentrations associated with the instance of causal exposure. Consequently, the examiner explained, "[t]he Veteran is very sensitive to even small concentrations of irritants and has likely been so since 1956." The medical opinion provided by the VA examiner, premised on credible testimony of tear gas exposure in service that the Veteran is competent to provide, establishes the elements needed to establish service connection for reactive airway dysfunction syndrome. See Gardin v. Shinseki, 613 F.3d 1374, 1379-1380 (Fed. Cir. 2010) (the Board has the obligation to determine whether the Veteran's lay evidence is credible); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (a lay person is competent to describe symptoms at the time that support a later diagnosis by a medical professional); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to testify to continuous symptoms of breathing difficulty); 38 C.F.R. § 3.159(a)(2). Medical evidence establishes a diagnosis of reactive airway dysfunction syndrome, competent and credible lay evidence establishes exposure to tear gas during basic training in service, and medical nexus evidence establishes an etiological relationship between the Veteran's currently diagnosed reactive airway dysfunction syndrome and his exposure to tear gas in service. See Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303. Contrary to the statement presented in the June 2009 statement of the case, 38 C.F.R. § 4.96 does not preclude an award of service connection for one respiratory disorder where there is a potential issue of overlapping symptoms with another respiratory disorder. Rather, this provision governs the downstream issue of the ratings that may be assigned for disorders which have already been found to be service-connected and is not applicable to the Veteran's service connection claim. The Board's review of the record has not revealed any significant evidence against the Veteran's claim for service connection for reactive airway dysfunction syndrome, and, furthermore, any doubt as to any material issue of fact would be resolved in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.102. Therefore, the claim for service connection for reactive airway dysfunction syndrome is granted as the elements needed to substantiate a claim for service connection have been established by the lay and medical evidence of record. See 38 U.S.C.A. § 1131; Shedden, 381 F.3d at 1167; 38 C.F.R. § 3.303(a). ORDER Service connection for reactive airway dysfunction syndrome is granted. REMAND Unfortunately, the Veteran's claim for service connection for COPD must be remanded for further development before the Board can properly adjudicate the claim. The Board sincerely regrets the additional delay, but it is necessary to ensure that the evidentiary record is complete. The Veteran contends that he suffers from COPD due to exposure to tear gas during basic training in May or June in 1956, and that he was hospitalized following the exposure to tear gas with a swollen throat and persistent coughing at the base hospital at Lackland Air Force Base. He also asserts that he has had respiratory symptoms, particularly upon exposure to aerosols and perfume, since that time, and has treated these symptoms with over-the-counter Primatene Mist. The Veteran states that his symptoms became more severe as be began to experience continuous difficulty breathing during the 1980s. He reported an initial diagnosis of COPD from the VA Medical Center (VAMC) in Tampa, Florida, in 2000, following a breathing test, and stated that another breathing test was recently done at the VAMC in Ann Arbor, Michigan, in April 2007. An April 2007 pulmonary function test report from the Ann Arbor VAMC is present in the Veteran's claims folder. However, the only record obtained from the Tampa VAMC is of an appointment establishing the Veteran as a new patient at the Community-Based Outpatient Clinic (CBOC) in Brooksville, Florida, in February 2002. Further, this record shows that the physician requested a chest x-ray and referral for a pulmonary consultation, and neither of these reports are present in the record. Therefore, on remand, all relevant records from the Tampa VAMC should be obtained and associated with the claims folder or electronic records file, including any records of a pulmonary function test and/or diagnosis of COPD in 2000 and any records of the chest x-ray and pulmonary consultation ordered in February 2002. 38 U.S.C.A. § 5103A(b)(3), (c)(2); 38 C.F.R. § 3.159(c)(2), (3). Additional efforts must also be made to obtain any record of the Veteran's hospitalization for respiratory symptoms resulting from exposure to tear gas, including symptoms of coughing and swelling of the throat at the base hospital at Lackland Air Force Base. See 38 U.S.C.A. § 5103A(b), (c)(1); 38 C.F.R. § 3.159(c)(2), (3). Generally, a summary of any hospitalization during service will already be present in the Veteran's individual health record, while more detailed records of hospitalization, such as daily hospital treatment records and nursing notes, must be specially requested. VA Adjudication Procedures Manual, M21-1MR, pt. III, sbpt. iii, ch. 2, § B.12.c (Jan. 7, 2007). Here, no summary of the hospitalization described by the Veteran was found in the envelope of service treatment records that was associated with the claims folder in April 2007. Therefore, the AMC should request his clinical records from the National Personnel Records Center (NPRC), or any other appropriate source. Id. The Veteran has stated that this incident occurred in May or June of 1956, but his DD-214 shows that he did not begin active service until May 31, 1956. His DD-214 also shows that he began specialized training pursuant to his military occupational specialty sometime in July 1956, showing that his period of basic training ended approximately around that time. Therefore, in order to afford the Veteran every possible consideration, clinical records should be requested for the time period from May 31, 1956, through July 31, 1956. All efforts to locate these records should be documented in the claims folder or electronic records file. If the records of the hospital treatment described by the Veteran cannot be located, he should be appropriately notified, and a written statement on the lack of availability of these records should also be associated with the claims folder or electronic records file. See 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1). Lastly, after all additional records have been located and associated with the evidentiary record, the AMC should request an additional VA medical opinion as the VA medical opinion provided in June 2007 is not sufficient to allow the Board to make a decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Following review of the Veteran's medical history, as described in his lay statements of record and the June 2007 VA examination report, and the relevant medical evidence of record, including any additional service records or VA treatment records obtained on remand, the VA examiner should provide opinions as to whether (1) there is a causal relationship between the Veteran's exposure to tear gas in service and COPD and (2) the Veteran's reactive airway disease is a causal or aggravating factor of COPD. See 38 C.F.R. §§ 3.303(a); 3.310; see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that examination reports without sufficient detail are inadequate); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that examinations that are not based upon consideration of the Veteran's prior medical history are inadequate). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding relevant VA treatment records, including any pulmonary consultation reports from the VA Medical Center in Tampa, Florida, dated since February 20, 2002, and any recent relevant treatment records from the VA Medical Center in Ann Arbor, Michigan. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Request all records of the Veteran's hospitalization at the base hospital at Lackland Air Force Base, Texas, for the period of May 31, 1956, to July 31, 1956, from the National Personnel Records Center (NPRC) in St. Louis, Missouri, Personnel Information Exchange System (PIES), request code C01, or any other appropriate source. If VA is unable to secure these hospital clinical records, (a) all efforts to obtain the records must be documented in the claims folder and (b) the Veteran must be notified of (i) the specific records VA was unable to obtain; (ii) the efforts that VA made to obtain those records; (iii) the Veteran's responsibility to provide the evidence that cannot otherwise be obtained; and (iv) any further action to be taken by VA with respect to the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA is unable to obtain. See 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e)(1). 3. Then, obtain a VA medical opinion on the etiology of the Veteran's COPD. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests should be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that COPD: (A) is etiologically related to the Veteran's period of military service, including exposure to tear gas; or (B) was caused by service-connected reactive airway dysfunction syndrome; or (C) is aggravated (permanently worsened) by service-connected reactive airway dysfunction syndrome If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached that clearly states the conclusions, identifies the supporting data for each conclusion, and provides a reasoned medical explanation connecting the supporting data to each conclusion. 4. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 5. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs