Citation Nr: 1321925 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 09-47 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disorder (COPD) and bronchitis, claimed as due to herbicide exposure or secondary to service-connected diabetes mellitus and/or service posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1954 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This claim was previously before the Board in September 2011, when it was remanded to afford the Veteran a hearing before a Veterans Law Judge (VLJ) at the RO. However, in a March 2013 communication, the Veteran withdrew his hearing request. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development must be accomplished prior to further consideration of the Veteran's appeal. In support of his claim, the Veteran submitted articles regarding the etiology of COPD and the relationship between impaired lung capacity and diabetes. The article suggested that diabetes can diminish lung capacity and deteriorate lung functions at a high annual rate. This evidence is sufficient to trigger VA's duty to obtain a medical opinion to address the link indicated between diabetes and the claimed disability expressed in this article. 38 C.F.R. § 3.159. Accordingly, the RO should arrange for the Veteran to undergo VA pulmonary/respiratory examination. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection for a lung disability (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility Further, relevant ongoing medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should contact the Veteran to obtain the names and addresses of all VA or private health care providers whose records may show the Veteran's lung capacity is diminished by diabetes, but in any event all relevant VA treatment records dated since July 2008, should be associated with the claims file. 2. After associating all outstanding records with the claims folder, the Veteran should be afforded a VA pulmonary/respiratory examination, to determine the etiology of any current respiratory disabilities, to include COPD or bronchitis. The claims folder should be made available and reviewed by the examiner and all necessary tests and should be conducted. The examiner should opine whether it is at least as likely as not (i.e., a 50 percent probability of greater) that any respiratory disorder found, to include COPD or bronchitis, was caused or aggravated by his service-connected diabetes mellitus. A complete rationale for all opinions should be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner should provide the reasons why an opinion would require speculation. 3. Then readjudicate the appeal. If the benefits sought on appeal are not granted, the RO must issue a supplemental statement of the case and the Veteran and his representative should be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL E. KILCOYNE 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).