Citation Nr: 1320318 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-45 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for obstructive lung disease with bronchitis. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from March 5, 1978 to March 28, 1978. He also had Army National Guard service from August 7, 1977 to March 4, 1978. He has not claimed to have any periods of active duty service. This matter previously came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which concluded that new and material evidence had been received, and subsequently reopened and denied the appellant's claim of entitlement to service connection for obstructive lung disease with bronchitis. In August 2011, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge sitting in St. Petersburg. A transcript of the hearing has been associated with the appellant's claims folder. In January 2012, the Board remanded the appeal for further development. Noting that the Board must conduct an independent review to determine whether new and material evidence has been received in order to establish its jurisdiction to review the merits of a previously denied claim, the Board characterized the issue as whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for obstructive lung disease with bronchitis. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A review of the record reflects that there has been substantial compliance with the remand. See Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that additional service treatment records have been received. A review of those records shows that they are related to the claimed obstructive lung disease with bronchitis. As such, there is no longer a need for the submission of new and material evidence and the appellant's claim will be reconsidered de novo. 38 C.F.R. §§ 3.156(c) (2012). Accordingly, the Board has recharacterized the issue as listed on the title page. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required on his part. REMAND The appellant contends that he developed obstructive lung disease with bronchitis during ACDUTRA and that the disease has been chronic ever since; he specifically avers that he was in sound condition at the time of enlistment and that the condition did not exist prior to that time. In a statement received in July 1978, the appellant indicated that he has had respiratory problems ever since an accident while working on a sandblasting machine in August 1977 during Army National Guard service. The appellant's representative reiterated the above in an August 2011 statement. The Board observes that the appellant has essentially asserted that he injured his lungs in a sandblasting accident during a period of inactive duty for training (INACDUTRA). In a January 2009 statement, the appellant indicated that, although he had an acute lung infection prior to enlistment in the Army National Guard, the infection had been entirely cured. During his August 2011 Board hearing, the appellant testified that he had experienced breathing problems while at home in early 1978 sometime after enlisting in the Army National Guard but prior to entering ACDUTRA and had been diagnosed with bronchitis and some other lung condition. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service . . . ." 38 U.S.C.A. § 101(2) (West 2002). See 38 C.F.R. § 3.1(d) (2012). The term "active military, naval, or air service" includes active duty; any period of ACDUTRA, during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of INACDUTRA during which the individual concerned was disabled or died from (i) an injury incurred or aggravated in line of duty or (ii) an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012). The presumptions of soundness (absent an entrance examination) and aggravation do not apply to periods of ACDUTRA and INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010). During the appellant's August 1977 Army National Guard enlistment examination, he reported no history of respiratory problems and examination revealed a normal clinical evaluation of the lungs and chest and a negative chest x-ray. He entered ACDUTRA on March 5, 1978. On March 10th, he complained of chest pain, coughing up blood and large amounts of yellow mucous; and was diagnosed with a possible upper respiratory infection. March 13th pulmonary function tests showed moderate obstruction and restrictive changes. A March 14th consult report reflects a diagnosis of chronic bronchitis with obstructive airway disease. A March 16th report of medical history for Medical Evaluation Board purposes shows that he had obstructive lung disease with shortness of breath and chest pain that existed prior to service. The report also shows that he had a history of coughing up blood prior to service. Chest x-rays at that time were normal. Then, a March 21st clinical record shows a history of emphysema since two years prior to entering ACDUTRA and a diagnosis of obstructive lung disease with chronic bronchitis. An April 1978 service personnel record reflects that the appellant was being discharged for failure to meet the physical qualifications for enlistment. Recent private medical records dating from 2009 to 2012 show a history of asthma and bronchitis. Given the appellant's report of injuring his lungs in an accident while working on a sandblasting machine during a period of INACDUTRA, the Army National Guard entrance examination report noting no abnormalities of the lungs, the history of being diagnosed with bronchitis and some other lung condition prior to ACDUTRA, and the diagnosis of obstructive lung disease with chronic bronchitis during ACDUTRA, he should be afforded a VA examination to determine whether his obstructive lung disease with bronchitis was incurred in or aggravated by a period of INACDUTRA or ACDUTRA. Prior to examination, the appellant should be asked to identify any healthcare providers who have treated him for his lung disease, so that records of such treatment may be obtained. Accordingly, the case is REMANDED for the following action: 1. Appropriate steps should be taken to verify any period of INACDUTRA in August 1977; the exact dates thereof, if any, should be specifically set forth for the record. 2. Ask the appellant to identify any healthcare providers who have treated him for his lung disease. Obtain any records that are adequately identified and for which proper authorization is received, to include records from Blake Memorial Hospital. 3. Then, schedule the appellant for a VA examination to determine the nature and etiology of his obstructive lung disease with bronchitis. The appellant's claims file should be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies and tests should be conducted. The examiner should provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the appellant's obstructive lung disease with bronchitis had its onset during a period of INACDUTRA in August 1977 (if verified) or ACDUTRA from March 5, 1978 to March 28, 1978. The examiner should also provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that the appellant's obstructive lung disease with bronchitis was aggravated (permanently worsened beyond its natural progression) during or as a result of a period of INACDUTRA in August 1977 (if verified) or ACDUTRA from March 5, 1978 to March 28, 1978. The examiner should consider the appellant's report of injuring his lungs in an accident while working on a sandblasting machine during INACDUTRA and the service treatment records documenting respiratory problems prior to ACDUTRA and a diagnosis of obstructive lung disease with chronic bronchitis during ACDUTRA. The rationale for all opinions expressed should be provided. 4. Then readjudicate the claim. If the decision is adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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). _________________________________________________ BARBARA B. COPELAND 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).