Citation Nr: 1320530 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-48 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), also claimed as emphysema. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to May 1975. This appeal to the Board of Veterans' Appeals (Board) is from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board observes that further development is required prior to adjudicating the Veteran's claim. The Veteran contends that he suffers from COPD/emphysema that was caused or aggravated by military service, including exposure to Agent Orange, or alternatively, that this condition is caused or aggravated by his service-connected PTSD. COPD and emphysema are not disabilities recognized by VA as resulting from Agent Orange exposure. 38 C.F.R. § 3.309(e). The Veteran's service treatment records note one instance of chest congestion in 1970, with a notation "doubt pulmonary disease". However, there are no additional indications of treatment for or complaints of any pulmonary disorders during service. A VA examination in August 1975 noted the Veteran's respiratory system was normal and lungs were clear on chest x-ray. A post service treatment report from June 1982 noted the Veteran smoked a pack of cigarettes a day since age 15. A March 1994 private treatment report noted the Veteran reporting a history of smoking 2 packs of cigarettes per day for the past 25 years. A private chest x-ray from March 1994 was noted as showing mild changes of COPD. Subsequent private treatment records from various providers note diagnoses of COPD and/or emphysema. Additionally, VA treatment records dated through March 2009 also indicate the Veteran has been receiving treatment for COPD. However, none of these treatment records provide an opinion as to relationship between the Veteran's current COPD/emphysema and service or to his PTSD. In a statement dated in November 2007, a VA nurse practitioner provided an opinion suggesting that increases in the Veteran's anxiety and panic due to PTSD contributes to a cyclic increase in episodes of COPD. A statement from a physician dated in January 2008, however, notes the opposite cause and effect, specifically, that the Veteran's emphysema exacerbations caused increased anxiety and panic, thereby worsening his PTSD. Any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. A temporary or intermittent flare-up of a preexisting disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). The evidence of record does not include a medical opinion as to the baseline level of the Veteran's COPD/emphysema, nor is there an opinion differentiating between a mere exacerbation of this condition versus actual worsening of the underlying COPD/emphysema due to PTSD. Thus, the Board finds that a VA opinion is necessary. 38 C.F.R. § 3.159(c)(4). Additionally, the Board notes while the condition has been claimed as secondary to PTSD, the Veteran has not been provided notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) on how to substantiate such a claim, nor has the RO adjudicated the claim as one for secondary service connection. The Board also notes that the most recent VA treatment records are dated in March 2009. On remand, ongoing medical records related to the Veteran's lung disorder should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, any relevant records from private treatment physicians not currently of record should be requested. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice advising him of the information and evidence necessary to substantiate his claim for service connection for COPD/emphysema on a secondary basis. 2. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for his pulmonary disability since service. After securing the necessary release for those records and any other relevant facilities identified, the RO/AMC should request any relevant records which are not duplicates of those already contained in the claims file. If any requested records are not available, the Veteran should be notified of such. The RO/AMC must also obtain treatment records related to the Veteran's pulmonary disorder from the Manchester, New Hampshire, VA Medical Center, dating since March 2009. If requested records are unobtainable, the claims file should document such and the Veteran should be notified of the inability to obtain the records. 3. After the above has been completed to the extent possible, forward the claims file to a VA pulmonologist to obtain an opinion as to whether the Veteran's COPD/emphysema is possibly related to service or service-connected PTSD. The claims file must be reviewed by the pulmonologist. If the pulmonologist determines that an examination is needed to respond to the questions, one should be scheduled. Following review of the claims file, and if deemed necessary, examination of the Veteran, the pulmonologist should respond to the following: a. Please provide an opinion as to whether the Veteran's COPD/emphysema is more likely (greater than 50 percent probability), less likely (less than a 50 percent probability), or at least as likely as not (a 50/50 probability) related to the Veteran's military service, including the complaint of chest congestion in 1970 in service or his exposure to Agent Orange. Please explain the medical reasoning for the conclusion reached. b. If not related to service, please provide an opinion as to whether it is more likely, less likely, or at least as likely as not that the Veteran's COPD/emphysema is caused by his service-connected PTSD. Please explain the medical reasoning for the conclusion reached. c. If not caused by PTSD, please provide an opinion as to whether the Veteran's COPD/emphysema has been permanently worsened beyond the natural progression of the disease (aggravated) by his PTSD. If the examiner finds that the Veteran's COPD/emphysema was aggravated by his service-connected PTSD, the examiner should provide an opinion as to the baseline level of disability of COPD/emphysema prior to the aggravation by PTSD. Please explain the medical reasoning for the conclusion reached. d. If an opinion cannot be rendered on the above without resorting to mere speculation, the pulmonologist should explain why rendering an opinion is not possible or feasible (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After the above has been completed to the extent possible, readjudicate the claim in light of the additional evidence. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case, and provide an appropriate period of time to respond. Thereafter, return the case to the Board for further appellate consideration, if in order. The Veteran 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).