Citation Nr: 1322654 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 05-28 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a lung disorder, to include atelectasis. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran service on active duty from January 1978 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in January 2004 and January 2006 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Subsequently, the Board denied these and other pending claims in an October 2007 decision. The Veteran then appealed the denial of his claims to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 decision, the Court affirmed the Board's denial of several claims and vacated and remanded several issues, including: whether new and material evidence had been received to reopen a claim of entitlement to service connection for PTSD; a claim for entitlement to service connection for a broken eardrum, and a claim for entitlement to service connection for a lung disorder, to include atelectasis. In a February 2012 decision, the Board found that new and material evidence had been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The claims for service connection for an acquired psychiatric disorder, to include PTSD, a broken eardrum, and a lung disorder, to include atelectasis, were remanded by the Board in February 2012 and August 2012 for further development. Most recently, in December 2012, the Board denied the claim of entitlement to service connection for a broken eardrum, and remanded the claims relating to an acquired psychiatric disorder/PTSD, and a lung disorder for further development. Lastly, additional evidence has been submitted to the Board without any indication the Veteran was waiving his right to have the RO initially consider this evidence. See 38 C.F.R. § 20.1304 (2012). However, it is not necessary this evidence be returned to the RO for initial consideration since it is either not pertinent to the issues on appeal and/or merely duplicative of evidence already of record that the RO already has considered in the first instance. In any event, the claims require further development before being decided on appeal, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC, regardless. 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 A Lung Disorder With respect to the Veteran's claim for service connection for a lung disorder, to include atelectasis, the Veteran essentially contends that his pre-existing and/or congenital lung condition was aggravated during his brief period of active duty service. Specifically, he asserts that he was born with lungs that are only 3/4 of their normal size and that this made his physical training during service very difficult. In this case, service treatment records do not reflect complaints, treatment, or diagnoses relating to a lung condition or abnormal lung function. The Veteran's September 1977 enlistment examination noted no lung abnormalities, and the Veteran himself denied any shortness of breath in the accompanying report of medical history. Following service, VA treatment records dated in February and March 1989 reflect complaints of a "breathing disorder." The Veteran stated that he had experienced shortness of breath with exertion, pain in the upper chest, and wheezing for at least one year. The diagnostic impression was asthma versus allergies. Chest x-rays were normal. After pulmonary function tests (PFTs) were performed (which revealed normal lung capacity, ruling out restrictive lung disease), the Veteran was ultimately diagnosed with allergies and referred to the allergy clinic. Notably, there were no findings relating to a congenital lung condition or defect, nor did the Veteran report any such condition at the time. Private treatment records from Dr. Piper, dated from 1989 to 1991, show that the Veteran was followed for "chest problems" and breathing problems, including chest pain and congestion. Objective examination of the lungs and chest were normal throughout. Diagnostic impressions included bronchitis and chest pain. VA treatment records dated from 1993 to 2001 reflect some complaints of productive coughing but consistently normal objective evaluations of the lungs. Some diagnostic impressions included chronic bronchitis. Of note, an October 1999 VA pulmonary consult report showed that the results obtained by a spirometry examination were not consistent or reliable and that while they suggested a possible restrictive pattern, the VA physician was "skeptical." In this regard, lung volumes and DLCO were not conducted because the Veteran did not cooperate; the Veteran's chest x-rays were otherwise normal. In sum, the VA physician stated that he did "not understand [the Veteran's] problem and that there was little evidence to support his complaints. There was no obvious parenchymal disease on chest x-ray and PFTs were equivocal at best. Crackles in the left base were shown and the examiner stated that his could be related to bronchiectasis from childhood infections or a neuromuscular problem resulting in restriction due to muscle weakness and consequently shortness of breath. However, this had apparently been present "since childhood" without deterioration, per the Veteran, and as such, it was very difficult to ascribe the symptoms to a particular activity. The examiner concluded by noting the following: "It is clear that [the Veteran] does not have a progressive illness. I suspect some of his claims are exaggerated." A September 1999 private treatment record from Dr. E.C.B. noted breathing difficulties (e.g., "Birth defect. Stayed in incubator for nine months. Birth weight 1.7 ounces."), lack of oxygen supply, and 3/4 lung, among other physical disorders. Dr. E.C.B.'s office social worker noted in a March 2003 private treatment record, as did Dr. R.L.C, a VA psychologist, in October 2001 correspondence, that the Veteran was born with underdeveloped lungs, described as "congenital 3/4 lungs," and that he was not able to keep up with military training due to decreased respiratory volume. Dr. R.L.C. opined that this pulmonary physical deformity led to his inability to perform during basic training. Likewise, in April 2001 and November 2001 letters from C.H. (Dr. E.C.B.'s office social worker), it was noted that the Veteran was "reportedly" born with a breathing difficulty which resulted in an impairment to his lung and that he has experienced breathing problems since birth. She further noted that, among other disabilities, the "presenting problems" included "service connected" breathing difficulties (lung disease emphysemic in nature). A June 2001 letter from O.C.H., a VA social worker, noted the following with respect to the Veteran's claimed lung condition: "He has several military reports which show he should never have been accepted [the Veteran] into the service with his medical problems. He shows that he was born with a congenital lung condition and the military was aware of this when he was accepted into the Marine. When he was not able to keep up with the others in his outfit, his superiors and fellow recruits regularly harassed him...It seems many of [the Veteran's] emotional and current medical problems may very well be related to his military experiences under these circumstances." A letter from Dr. R.L.C. in October 2001 noted that the Veteran's pre-existing lung disorder was aggravated during his brief period of active duty in 1978. An October 2001 letter from R.L.C., Ph.D. (VA) notes that the Veteran "should be rated service connected for PTSD. This is due to his pre-existing conditions (congenital 3/4 lungs) being aggravated during his active duty service." During his December 2002 Board hearing, the Veteran testified that he was receiving treatment at the VA Medical Center. He stated that he could not keep up with the physical demands of basic training because of a birth condition regarding his lung. In a June 2003 memorandum, the Office in Charge of the Recruit Administration Center at Parris Island stated that the Marine Corps was unable to identify the Veteran's condition at enlistment and that the Veteran's respiratory system was not receiving the adequate air volume that was needed to perform exhausting duties of recruit training. A September 2003 note from the commanding officer at the Beaufort Naval Hospital stated that it appeared that the Veteran was not given the proper medical evaluation during his recruit training at Parris Island. In an undated letter from R.L.C. he stated that he concurred with the June 2003 memorandum and that "it appears that the patient is eligible for SC (PTSD and lung condition)." In an April 2003 statement, the Veteran explained that he and his twin brother were both born prematurely with lung atelectasis; that he weighed a little over one pound at birth; that he stayed in an incubator for nine months; and that all of his medical problems stemmed from that point. An April 2005 letter from Dr. C.F.S., M.D., (private physician) reflects that the Veteran had been under his care for the past eight years and that he was currently being treated for chronic pulmonary atelectasis, and bronchial asthma, among other disorders. An April 2005 letter from C.H, M.S.W., indicates that the Veteran "began treatment with our agency in 1979" to address the issues surrounding "severe pulmonary loss and impairment due to 3/4 lung condition (at birth) and the aggravation thereof because of his military experience(s)." She stated that the Veteran continued to suffer from these issues. A February 2006 letter from C.H., Dr. E.C.B.'s office social worker, again indicates that the Veteran was born with underdeveloped lungs and that he was not able to perform and maintain progress while in the military due to decreased respiratory volume. Most recently, the Veteran cooperated with a February 2012 VA pulmonary function test that showed a provisional diagnosis of dyspnea, but refused to appear for chest x-rays or a comprehensive VA respiratory examination in March 2012. A May 2012 VA addendum report for the PFT examination indicated that the PFT was "suboptimal" and that no airflow limitation was noted. However, a low FVC suggested a "restrictive process." Pursuant to the Board's August 2012 remand, the Veteran was afforded another opportunity to attend a VA respiratory examination, but he again refused to appear for such examination. As such, upon remand in December 2012, the Board requested that a VA respiratory physician review the claims file and answer questions relevant to the presumption of soundness and congenital conditions. Specifically, the Board noted that the Veteran had a current lung disorder, and in particular, that the April 2005 correspondence from Dr. C.F.S. showed that he was being treated for chronic pulmonary atelectasis. (Emphasis added). See December 2012 Board Remand, p. 16. The Board then stated that an opinion as to whether the Veteran's atelectasis was a congenital condition was necessary. If the condition was determined to be acquired, rather than congenital, the Board requested that an opinion comment on whether there was clear and unmistakable evidence that the lung disorder existed prior to service and was not aggravated during service. In addition, the examiner was asked to specifically consider the Veteran's assertions concerning his activities/physical exertion during military training exercises, and determine whether any lung disorder was due to such service. Unfortunately, the January 2013 VA failed to adequately address the above questions. Specifically, the January 2013 VA examiner opined that the Veteran's lung condition was less likely than not incurred in or caused by service. The rationale provided included the following: (1) that the Veteran had self-reported that he was born premature with congenital lungs conditions, however, his entrance examination was normal; (2) he only served six weeks before being discharged from service for inability to conform to military behavior; (3) his service treatment records showed no ongoing treatment or condition for the lungs and his discharge examination was normal and he had signed that he had no physical condition at discharge; (4) he self-reported congenital atelectasis, but VA pulmonary testing (although which pulmonary testing the examiner is referring to is unclear) did not show a lung condition, and he had refused the C&P examination, chest x-rays, and repeat PFTs; and (5) the February 2012 PFT was an invalid test due to non-cooperation of the Veteran. In sum, the examiner stated that there was no evidence of an abnormal lung condition. Again, the Board has determined, as based on the diagnoses provided by Dr. C.F.S., M.D., in April 2005, that the Veteran has a current lung disorder identified as chronic pulmonary atelectasis. McLain v. Nicholson, 21 Vet. App. 319 (2007). (holding that the requirement that a claimant have a current disability in order for service connection to be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). Moreover, the February 2012 VA PFTs, despite a reportedly poor effort by the Veteran, show continuing lung symptoms including dyspnea and a low FVC suggesting a "restrictive process." In light of the forgoing, the Board finds that the lung disorder claim must be remanded to obtain an addendum medical opinion which addresses the questions delineated by the Board in its December 2012 remand. Stegall v. West, 11 Vet. App. 268;(1998) (the Veteran has right to VA compliance with terms of Board remand order); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991); An Acquired Psychiatric Disorder, to Include PTSD With respect to the remaining issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, the Veteran contends that such disorder is (at least in part) due to, or secondary to the lung disorder. At present, the claim of service connection for an acquired psychiatric disorder is inextricably intertwined with the lung claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Therefore, the Board will defer its decision on this claim until the Veteran's lung claim is resolved. The Board notes that in its December 2012 remand it requested an opinion as to whether any lung disorder caused a psychiatric disorder. See December 2012 Board Remand, p. 24. However, the March 2013 VA psychological/mental examiner declined to answer this question "as there had been no determination of the Veteran's entitlement to service connection for a lung disorder." In order to ensure that VA has a complete record upon which to review the Veteran's claim, the claims file should be returned to the March 2013 VA psychological/mental examiner to address the question regarding secondary service connection. 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/AMC shall again contact the Veteran and ask him to submit evidence of a current lung disorder and a current psychiatric disorder. If the Veteran signs appropriate releases, then the RO/AMC shall attempt to obtain for him and associate with the claims file any records identified by the Veteran that are not already associated with the claims file. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. The claims file, including all relevant records that may be in Virtual VA, shall be forwarded to an appropriate VA examiner, if possible, other than the one who completed the January 2013 VA medical opinion, for a medical opinion to determine the nature and likely etiology of any claimed lung disorder, or atelectasis. To facilitate making this important determination, the claims file, including a complete copy of this remand and the results of the February 2012 pulmonary function test, must be made available to the designated examiner for a review of the pertinent medical and other history. Based on the record review, the reviewer should: (a) Determine whether the Veteran has what is considered a congenital lung defect as evidence in the file indicates he was born with underdeveloped lungs. If a congenital defect is found, state whether it was subject to a superimposed disease or injury in service. If so, please identify the superimposed disease or injury and the resultant disability. In this regard, the examiner should address the diagnoses of chronic pulmonary atelectasis, dyspnea, and low FVC findings suggestive of a restrictive process (as shown on February 2012 PFTs), which are of record. (b) If it is determined that the Veteran has an acquired lung defect, the reviewer should state (1) whether there is clear and unmistakable (debatable) evidence that the Veteran had a preexisting service lung disorder and (2) whether there is clear and unmistakable evidence that such lung disorder was not aggravated by service (i.e., did not increase in severity beyond the normal progress of the disease in service). If clear and unmistakable evidence is found as to any factor, the examiner should identify such evidence used to come to these conclusions. If both questions are answered in the affirmative, the examiner should state whether the disability increased in service. If so, the examiner should state whether there is clear and unmistakable evidence that an increase in the disability in service was due to the natural progress of the disorder. (c) If it is determined that the Veteran did not enter service with an acquired lung disability, for each acquired diagnosis found, the reviewer should state whether it is at least as likely as not (i.e. at least a 50-50 probability) that such disease was a result of his service or any incident thereof, including training exercises. The reviewer must consider the Veteran's assertions concerning his activities during service when addressing the above medical question. (d) The reviewer must discuss the rationale of all opinions, whether favorable or unfavorable, citing to specific evidence in the file, as well as sound medical principles. If the reviewer cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the reviewer shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Thereafter, the claims file shall be forwarded to the VA examiner who conducted the March 2013 mental/psychological examination to obtain an addendum opinion. To facilitate making this important determination, the claims file must be made available to the designated reviewer for a review of the pertinent medical and other history. Based on the record review, including any relevant records found in Virtual VA, as well as the medical opinions of record, the reviewer should comment whether any lung disorder identified above caused a psychiatric disorder. If it did not cause a psychiatric disorder, state whether it aggravates (increases the severity of) a psychiatric disorder. If so, the examiner should opine whether such aggravation (i.e., increase in severity) was beyond the normal progress of the psychiatric disorder. The examiner should also clarify the opinion that there is clear and unmistakable evidence that the Veteran's anxiety disorder pre-existed service. In this regard, a more detailed rationale should be provided and this rationale should point to the undebatable evidence used to support the opinion that an anxiety disorder existed prior to service. If the examiner who conducted the March 2013 VA examination is not available, the claims file must be referred to a similarly qualified psychologist for review and preparation of an opinion consistent with the instructions set forth in this remand. 4. Thereafter, the RO/AMC shall take such additional development action as it deems proper with respect to the two remaining claims on appeal. If one or both VA reviewers cannot provide the requested medical opinions without an examination, then the RO/AMC shall schedule the Veteran for the appropriate examination. In that case, the Veteran should be apprised of the consequences for his failure to report for a VA examination pursuant to 38 C.F.R. § 3.655. 5. When the development requested has been completed, the issues on appeal should again be reviewed by the RO/AMC on the basis of the additional evidence and readjudicated. If any benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ K. OSBORNE 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).