Citation Nr: 1322533 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 10-29 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased evaluation for service-connected respiratory disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. On November 19, 2010, the Veteran provided testimony at a Board hearing before the undersigned, sitting at the RO. A transcript of the hearing is of record. The instant matter was previously before the Board in July 2012 and February 2013 at which time the case was remanded for the agency of original jurisdiction (AOJ) to, among other things, afford the Veteran a VA pulmonary examination to evaluate the current severity of his service-connected respiratory disability. Unfortunately, the matter must again be remanded for further development. The Board notes that after the issuance of a May 2012 supplemental statement of the case (SSOC), the Veteran submitted additional evidence that was not accompanied by a waiver of consideration by the AOJ. As the current matter is being remanded, the AOJ will necessarily have an opportunity to consider this evidence in the first instance as part of its readjudication of the Veteran's claim. As indicated in two prior remands, the issue of entitlement to service connection for a back disability has been raised by the record. That issue has yet to be adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The Veteran's claim for a rating in excess of 10 percent for his service-connected respiratory disability was most recently remanded for him to be scheduled for a VA pulmonary examination to determine the current severity of his traumatic pneumothorax The examiner was requested to perform pulmonary function testing (PFT) and record the results of such testing in the examination report. The examiner was also requested to review the PFTs performed in April 2008 and May 2012 and reconcile them the findings from the current examination, explaining, where possible, the likely causes of any differences. The Board noted that a VA examiner in August 2012 had stated that the May 2012 PFT results were not valid, but did not explain why in effect those results were not acceptable as a valid measure of the then-current severity of the Veteran's respiratory disorder. A pulmonary examination was conducted in March 2013, the report of which recorded diagnoses of asthma and traumatic pneumothorax. PFT was conducted, which revealed a post-bronchodilator FEV-1 (forced expiratory volume in 1 second) of 63 percent of predicted. The examiner indicated that the Veteran suffered from reactive airway disease/asthma and that that the FEV-1 test result most accurately reflected the Veteran's level of disability. The examiner then reconciled the conflicting PFT results of record, stating that it appeared from the evidence that there was error in administering the May 2012 PFT and, as such, those results did not accurately reflect the Veteran's pulmonary status at that time. The examination report also revealed that the Veteran had recently been seen in the emergency room related to an exacerbation of his asthma. Upon review of the March 2013 VA examiner's findings, the AOJ determined that it was necessary to obtain a medical opinion regarding whether it was at least as likely as not that the Veteran's diagnosed asthma was related to service or secondary to his service-connected traumatic pneumothorax. It was noted that should the opinions be negative, the reviewing clinician was to opine as to whether the current PFT results were more due to the Veteran's nonservice-connected asthma or to his service-connected pneumothorax. An independent medical opinion was obtained in May 2013. Upon review of the Veteran's claims folder, and in consideration of cited medical literature, the reviewer opined that the Veteran's asthma was not caused by or proximately due to his traumatic pneumothorax, nor was there any medical or scientific evidence to support a finding that the Veteran's asthma had been aggravated beyond its natural progress by his traumatic pneumothorax. Notably, the reviewer did not offer an opinion regarding direct service connection, as requested to do so by the AOJ. The reviewer further indicated her agreement with the previous assessments that the May 2012 PFT results did not accurately reflect the Veteran's pulmonary status, and stated that the April 2008 and March 2013 PFT results reflected severe airway obstruction with reduced diffusing capacity, which suggested an early parenchymal process. The reviewer found, therefore, that the Veteran's PFTs were reflective of the Veteran's nonservice-connected asthma. In consideration of the evidence, the Board finds that the issue of entitlement to a rating in excess of 10 percent for the Veteran's service-connected respiratory disorder must again be remanded for additional development. This is so because the current severity of the Veteran's service-connected traumatic pneumothorax, as opposed to his nonservice-connected asthma, is unclear from the evidence developed on remand. Accordingly, the Board finds it necessary to obtain an opinion that differentiates, to the extent possible, the effects and severity of the Veteran's service-connected pneumothorax from his nonservice-connected asthma. In this regard, the Board notes when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, reasonable doubt should be resolved in the veteran's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). The Board also notes that the Veteran has submitted a statement from his direct supervisor, who indicated her observations of the Veteran's breathing problems and noted that the Veteran often had to take breaks during the workweek to administer breathing treatment and had several times called in sick on account of his breathing problems. Accordingly, as part of its readjudication of the Veteran's claim, the AOJ should consider whether referral for extraschedular consideration is warranted. Accordingly, the case is REMANDED to the AOJ 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 claims folder, and a copy of this remand, must be provided to and reviewed by a clinician with the appropriate expertise to differentiate, to the extent possible, the effects and severity of the Veteran's service-connected pneumothorax from his nonservice-connected asthma. The clinician should first opine whether it is as least as likely as not that the Veteran's diagnosed asthma is related to service. The clinician should then determine, to the extent possible, the level of severity of the Veteran's service-connected traumatic pneumothorax, as opposed to the severity of his asthma. The determination should be set forth in terms used in the applicable diagnostic code so as to allow for application of the rating schedule. The clinician should also indicate whether the Veteran's complaints of shortness of breath, aching lungs, and decreased physical, is due to his traumatic pneumothorax or his asthma. The clinician should also state whether the Veteran's traumatic pneumothorax requires the use of an inhaler and/or a nebulizer, and identify what medications are used to treat the Veteran's traumatic pneumothorax and what medications are used to treat his asthma and/or any other noted respiratory condition. The clinician should further discuss what effect the Veteran's traumatic pneumothorax has on his ability to function in an occupational setting and comment on whether the Veteran's traumatic pneumothorax has resulted in time lost from work and/or hospitalization, to include emergency treatment. If the clinician finds that it is not possible to separate the effects of the Veteran's nonservice-connected asthma from those of the Veteran's service-connected traumatic pneumothorax, or determine the severity of the Veteran's service-connected pneumothorax , as opposed to the severity of his asthma, the clinician should so state. The clinician must provide support for his/her opinion that includes reference to lay and medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in answering the questions posed above. If the clinician determines that he/she cannot provide an answer to any question posed without resorting to speculation, the clinician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definitive opinion can be obtained.) (If the clinician or the AOJ determines that another examination is required to formulate the requested opinions, another examination should be scheduled in order for the questions to be answered.) 2. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue of entitlement to an evaluation greater than 10 percent for the Veteran's service-connected respiratory disability. The Veteran's claim for an increased rating must be considered on a de novo basis in light of the additional evidence and the potential applicability of staged ratings should be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The AOJ must also specifically consider whether referral for extraschedular consideration is appropriate, as part of its readjudication of the Veteran's increased rating claim. If any benefit sought is not granted, the Veteran should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).