Citation Nr: 1320631 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-42 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a chronic respiratory disorder, claimed as residuals of pneumonia. REPRESENTATION Veteran represented by: Eric A. Gang, Attorney WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In April 2011, the Veteran testified at a videoconference hearing held at the Muskogee RO before the undersigned Veterans Law Judge. The transcript from that hearing has been associated with the claims file and has been reviewed. The case was then remanded by the Board in January 2012, for additional development and readjudication. In a decision dated in April 2012, the Board denied service connection for a chronic respiratory disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (the Court). In an Order dated in October 2012, the Court vacated the Board's April 2012 decision, and remanded the issue back to the Board for development consistent with the Court's Order. In addition, evidence was received directly at the Board in May 2013, and was not accompanied by a waiver of RO initial consideration; therefore, the RO must review this evidence prior to the return of the file to the Board. See Disabled American Veterans (DAV) v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. To comply with the Order of the Court, the appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran contends that he was inoculated with a live type-4 adenovirus during service, which he believes caused or contributed to the development of pneumonia in service. He further contends, through his hearing testimony, that this was an experimental inoculation he was directed to undergo and that he was hospitalized with pneumonia for 90 days and now has permanent residuals, in that since service discharge, he has regularly experienced recurrent pneumonia and bronchitis. The Veteran was provided a VA examination in March 2009 to determine the etiology of his current respiratory disorder(s). After examination, the clinical impression was COPD, which the examiner determined was less likely than not due to the three-month episode of bronchopneumonia in service. Pursuant to an October 2011 Board remand, the RO obtained an additional VA examination in February 2012. The Veteran stated that while in service he was "forced" to take an experimental vaccination for plague, which made him sick. He was hospitalized for 90 days with pneumonia and states that when he left the hospital he was told his "lungs would never be the same." He reported that since service he has had chronic bronchitis, asthma, hay fever, and allergies. He also stated that he was a chronic tobacco smoker for 40 years, but quit about several years ago and now smokes cigars. After reviewing the claims file, obtaining history from the Veteran, performing the physical examination, and reviewing the recent chest X-ray and pulmonary function test (PFT) reports, the examiner concluded that the Veteran's lung condition with COPD was less likely than not (less than 50 percent probability) etiologically related to the 3-month episode of bronchopneumonia which was treated in service. She explained that the pneumonia resolved during the Veteran's in-service hospitalization as evidenced by the X-rays taken after the Veteran was treated for pneumonia and the September 1980 X-ray, both of which were negative. Rather the Veteran's lung condition with COPD is most likely etiologically related to his chronic tobacco smoking, which is the major contributing factor for his respiratory condition, as it is well established that tobacco smoking causes COPD. The parties to the Joint Motion for Remand (JMR) agreed that the examiner who conducted the February 2012 VA examination failed to consider potentially relevant evidence. In particular, the Veteran's in-service vaccination theory was not considered by the examiner. The parties noted that the examiner made mention of the theory but he did not opine on the validity of that theory. Therefore, further medical comment is needed. Accordingly, the case is REMANDED for the following action: 1. Return the claims file, including this remand, to the VA examiner that performed the February 2012 compensation evaluation of the Veteran, if still available, and ask that she submit an addendum statement concerning the likelihood (very likely, as likely as not, or unlikely) the respiratory disorder is attributable to his military service or dates back to his service. If, for whatever reason, it is not possible or feasible to have this same VA examiner provide this further comment, then have someone else comment that is equally qualified to provide this necessary additional medical opinion. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed to make this remaining determination. Whoever is designated to provide this additional comment must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. In making this critical determination of causation, this examiner must comment on the Veteran's theory that his in-service inoculation led to the development of his respiratory disorder. To facilitate providing this additional comment, it is imperative the designated examiner review the claims file (or, in the case of the prior examiner, refamiliarize herself with the pertinent evidence in the claims file) for the relevant medical and other history. 2. After the above development has been completed, the RO should readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. Parakkal 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).