Citation Nr: 1324076 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-38 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Non Commissioned Officers Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to February 1983. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran is seeking entitlement to service connection for a respiratory disorder. He contends that he incurred a respiratory disorder as a result of his military service in the Air Force as a fuel specialist. Specifically, he claims that his duties while serving at the fuel maintenance unit involved painting refueling vehicles in a heated painting barn as well as handling fuels and cleaning solvents at an extremely cold temperature. He has asserted that his current respiratory disorder is directly related to his exposure to highly-concentrated fuel vapors and hazardous paint fumes in conjunction with extreme temperatures. The first medical evidence of record documenting the Veteran's respiratory disorder is a February 1998 private treatment record noting chronic obstructive pulmonary disease (COPD), with no further identifiable information relating to this condition. A March 2004 VA treatment report noted an assessment of asthma and emphysema and that the Veteran reported episodes of shortness of breath. It also noted that a COPD diagnosis was made 4 years ago. Additional VA treatment records dated from 2004 to 2012 showed continued findings of severe COPD and tobacco use (smoking) as well as findings of asthma and bronchitis. The Veteran, his family member, and his friends submitted various lay statements testifying to the fact that ever since his military service, the Veteran has exhibited breathing problems, such as repeated coughing and shortness of breath. During his December 2009 Board videoconference hearing, the Veteran testified that a diagnosis of chronic bronchitis was made in service and he experienced bronchitis every winter until the symptoms improved when he moved to a warmer climate a few years following his military separation. He stated that his respiratory condition was exacerbated to a severe degree when he moved back to live with his family in Michigan, at which point he started seeking medical treatment for his claimed respiratory disorder. In April 2010, the Board remanded the case for a VA examination to determine the etiology of his current respiratory disorder. The Board specifically requested in its remand that the VA examiner elicit information from the Veteran regarding his military service, such as the type of tasks performed as a fuel specialist, the circumstances surrounding the performance of his duties, the length, frequency, and the extent of his exposure to fuel vapors and paint fumes that may cause a respiratory disorder, as well as all other risk factors, to include his post-service employment history and any lifestyle choices affecting his respiratory health. The examiner was also asked to comment on whether symptoms of any respiratory disorder found are relieved by a warmer climate or exacerbated by a colder climate. In a November 2010 VA examination report, the examiner diagnosed severe COPD. Thereafter, the examiner opined that the Veteran's COPD was at least as likely as not related to chronic tobacco abuse and smoking. The examiner noted that the Veteran has been having a 30 year smoking history with an average of two packs per day, opining that the Veteran's respiratory disorder was not likely related to his history of exposure to fuel vapors and paint fumes during the active military service. In October 2011, the Board remanded the Veteran's claim to afford the Veteran another VA examination. The November 2010 VA examination was found to be inadequate, as the examiner did not elicit information from the Veteran regarding his military service as well as all other risk factors, to include his post-service employment history and any lifestyle choices affecting his respiratory health. The examiner also failed to comment on whether symptoms of any respiratory disorder found are relieved by a warmer climate or exacerbated by a colder climate. The Veteran underwent another VA respiratory examination in November 2011. Although the November 2011 examiner made efforts to elicit information from the Veteran regarding his military service, no further discussion was given regarding this information. The VA examiner also failed to comment on whether the Veteran's claimed symptoms were consistent with his military duties, his complaints through the years, and whether the complaints were consistent with the currently diagnosed respiratory disorder. Instead, the examiner reiterated verbatim the November 2010 VA examiner's conclusory opinion that "the Veteran's COPD is at least as likely as not related to chronic tobacco abuse and smoking" and "not likely related to [his] history of exposure to fuel vapors and paint fumes during the active military service," which was found inadequate by the Board in its October 2011 remand. In September 2012, the Board again remanded the Veteran's claim in hopes of obtaining an adequate VA medical opinion for purposes of determining service connection. The Board found the November 2011 VA examination to be inadequate for the myriad of reasons discussed above. In its prior October 2011 remand, the Board had specifically directed that the VA examiner must review and consider lay testimony provided by the Veteran and his friends regarding observable symptoms that he experienced ever since his military service; identify and take into consideration all other risk factors contributing to any respiratory disorder found, to include his post-service employment history and any lifestyle choices affecting his respiratory health; and comment on whether symptoms of any respiratory disorder found are relieved by a warmer climate or exacerbated by a colder climate. The November 2011 VA examiner ignored these instructions and provided an inadequate opinion that did not comply with the October 2011 Board remand directives. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board instructed the RO to obtain a supplemental medical opinion from an appropriate VA examiner regarding the etiology of the Veteran's claimed respiratory disorder. In rendering the opinion, the examiner was instructed to consider and specifically address information from the Veteran regarding his military service, such as the type of tasks performed as a fuel specialist, the circumstances surrounding the performance of his duties, the length, frequency, and the extent of his exposure to fuel vapors and paint fumes that may cause a respiratory disorder. The examiner was also instructed to comment on whether symptoms of any respiratory disorder found are relieved by a warmer climate or exacerbated by a colder climate. Finally, the examiner was instructed to identify and take into consideration all other risk factors contributing to any respiratory disorder found, to include the Veteran's post-service employment history and any life style choices affecting his respiratory health. In a December 2012 VA examination report, the examiner listed a diagnosis of chronic obstructive pulmonary disease. The examiner then opined that it is less likely as not that the Veteran's claimed disability was incurred during military service, as there were no service medical records pertaining to treatment of respiratory symptoms as well as in the immediate post military medical records after discharge. The examiner further noted that the Veteran has a longstanding history of cigarette smoking. It was indicated, based on medical literature review, that chronic cigarette smoking was overwhelmingly the most important risk factor for COPD. The examiner commented that it was as likely as not the Veteran's COPD was related to his chronic cigarette smoking, simply noting that exposure to fuel vapors, paint fumes, and weather changes were not etiological factors for COPD. In order for a VA examination to be considered adequate, the articulated reasoning must demonstrate that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has found that the December 2012 VA medical opinion is inadequate for purposes of determining service connection. After reviewing the December 2012 VA examination report, the Board finds that the RO did not substantially comply with the September 2012 Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The December 2012 VA examiner essentially regurgitated the same rationale from the November 2010 and November 2011 VA examination reports also deemed inadequate by the Board. In addition, the examiner did not specifically comment as to the etiology of other previously diagnosed respiratory disorders such as asthma or bronchitis. Consequently, the Board finds that another remand is required for corrective action. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In order to satisfy VA's duty to assist, the Board must again remand the appeal in order to obtain an additional VA medical opinion to clarify the etiology of the Veteran's claimed respiratory disorder on appeal and to properly address the Board's Remand instructions. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). A review of the record reveals that further development on this matter is also warranted. As most of the Veteran's service treatment records are not available, additional efforts should be made to obtain alternative records from the Veteran's period of active service to verify the occurrence of the reported in-service treatment for a respiratory disorder. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Ussery v. Brown, 8 Vet. App. 64 (1995). The Veteran's active duty service treatment records have been requested from the National Personnel Records Center (NPRC), and the only service treatment record received was the Veteran's March 1977 military entrance examination report showing a normal respiratory system. There was an indication, however, that additional service treatment records were mailed to the USAF Hospital at Myrtle Beach Air Force Base (AFB) in South Carolina in 1984. The RO made multiple requests for records from USAF Hospital at Myrtle Beach AFB, but negative replies were received and repeated requests to the Veteran for the records or information regarding this matter were unsuccessful. However, it does not appear that the RO requested records concerning the Veteran's repeated assertions of in-service respiratory treatment while stationed at the Hickam AFB in Hawaii, Minot AFB in North Dakota, and Wurtsmith AFB in Michigan while on active duty. In addition, the claims file also currently contains VA treatment records through January 2013. Therefore, the RO must request all VA medical treatment records pertaining to the claimed respiratory disorder from January 2013 to the present. Finally, an August 2010 VA treatment note revealed the Veteran had filed for disability benefits from the Social Security Administration (SSA). An additional October 2011 VA treatment record showed that the Veteran reported receiving Supplemental Security Income (SSI) benefits. When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes (Gerald) v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). As such, the RO must attempt to obtain these records. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for entitlement to service connection for a respiratory disorder. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA medical records pertaining to the Veteran, to include records from the Detroit VAMC from January 2013. The RO must also attempt to obtain any service clinical records from Hickam AFB, Minot AFB, and Wurtsmith AFB regarding asserted respiratory treatment during the Veteran's period of active service. In addition, the RO must contact SSA for the purpose of obtaining all documentation associated with the Veteran's claim for SSA disability benefits. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain this information the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the RO must obtain a supplemental medical opinion, from an appropriate VA examiner (preferably a pulmonologist) other than the November 2010, November 2011, and December 2012 examiners, to clarify the etiology of the Veteran's claimed respiratory disorder. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records reviewed. A copy of this REMAND should be made available to and reviewed by the VA examiner. Following a thorough review of all pertinent medical records and the lay statements of record regarding observable symptomatology, the examiner must provide an opinion as to whether ANY currently diagnosed respiratory disorder, include COPD, bronchitis, and asthma, was caused or aggravated by the Veteran's military service, to include as due to his in-service exposure to fuel vapors and paint fumes. In rendering this opinion, the examiner must consider and specifically address information from the Veteran regarding his military service, such as the type of tasks performed as a fuel specialist, the circumstances surrounding the performance of his duties, the length, frequency, and the extent of his exposure to fuel vapors and paint fumes that may cause a respiratory disorder. The examiner must also comment on whether symptoms of any respiratory disorder found are relieved by a warmer climate or exacerbated by a colder climate. The examiner must also identify and take into consideration all other risk factors contributing to any respiratory disorder found, to include his post-service employment history and any lifestyle choices affecting his respiratory health. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. Another examination of the Veteran must only be performed if deemed necessary by the person providing the opinion. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review any medical opinion and/or examination report to ensure that it is in complete compliance with the directives of this Remand. If the opinion and/or report is deficient in any manner, the RO must implement corrective procedures at once. 5. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the Veteran's claim on appeal. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).