Citation Nr: 1324591 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-01 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1982 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied the Veteran's claim to service connect asthma as well as his claims for increased ratings for pes planus, gout, and rhinitis. In January 2009, he filed a notice of disagreement (NOD) to the decisions pertaining to asthma and pes planus only. In January 2010, he filed a substantive appeal (VA Form 9) as to these two issues; however, in March 2013, the Veteran filed a revised VA Form 9 indicating that he was only appealing the denial of service connection for asthma. Accordingly, the Veteran's claim for an increased rating for pes planus is not before the Board for appellate consideration. Review of the Virtual VA paperless claims processing system does not reveal additional documents pertinent to this claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran was afforded a VA medical examination in October 2012. The examiner reported that he could not state whether the Veteran's asthma was service related without resort to speculation. However, the law requires in this circumstance that VA ensure it has all necessary information that may have a bearing on the opinion such that a response could be made without speculation. Jones v. Shinseki, 23 Vet. App. 382 (2010). It is not clear why the examiner was unable to opine on whether the Veteran's asthma is related to active duty service, and he did not indicate what information he would need to provide an opinion. Additional medical records were also obtained after October 2012, which must be considered by the examiner in his opinion. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran if he has received any VA, non-VA, or other medical treatment that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any non-VA treatment records not currently on file. Obtain these records and associate them with the claims folder. If the records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 2. After completion of the above, forward the Veteran's claims file to the examiner that conducted the October 2012 examination for an addendum opinion WHICH MUST FULLY RESPOND TO THE INQUIRY AS TO WHETHER ANY MEDICAL TESTING OR OTHER INFORMATION COULD BE DEVELOPED TO DETERMINE THE CAUSE OF THE VETERAN'S ASTHMA. If such testing or information could be developed, please identify and conduct it. If the October 2012 examiner is not available, the question above may be answered by another suitably qualified physician on review of the claims file, VA medical files, and the electronic record. Although requested to fully review the evidence of record, the examiner's attention is called to the following: i. The Veteran had active duty service from January 1982 to September 2003. He is service connected for obstructive sleep apnea with shortness of breath, tinnitus, hypertension, bilateral pes planus, gout, rhinitis, and erectile dysfunction. ii. He alleges he has received treatment for asthma and restrictive pulmonary symptoms since 1996, and that the pulmonary function test (PFT) given in March 2002 shows he had asthma while still in service. iii. Service treatment records (STRs) show the Veteran was treated for bronchitis (November 1991; December 1994; August 1995;December 1995; March 1996; August 1998), pleurisy and pleuritic chest pain (March 1996; March 1997), allergic rhinitis (August 1998; May 2003), upper respiratory infection (February 1983; July 1998; December 1999), costochondritis (May 1986), clinical pneumonia (November 1993), atypical pneumonia (July 1993), and possible CAP [community acquired pneumonia] (January 2000). Clinical evaluations of the lungs and chest in July 1981, April 1991, and February 1995 were all normal. iv. Pulmonary function tests (PFTs) were conducted during active duty in May 2000, January & March 2002, and March 2003. PFTs were also conducted following separation from service in May 2004 and October 2012. The examiner is asked to comment on the results of the tests, and how they have changed. Specifically, the March 2002 results showed a restrictive lung defect, and it was noted the Veteran may have RAD. Results from May 2004 suggested an obstructive process. The October 2012 VA examiner commented that the October 2012 PFT results showed a component of asthma that was not present in March 2002. v. The Veteran's physician has opined that the March 2002 pulmonary function tests showed the Veteran had asthma. Reiterating, the examiner must fully answer the following questions: Was the Veteran's asthma caused during, or by any incident of active duty service; or to any of his service-connected disabilities? If not directly due to service or any of his service-connected disabilities, has the Veteran's asthma been permanently aggravated beyond its normal progression due to one of the Veteran's service-connected disabilities? If an opinion cannot be expressed without resort to speculation, discuss why such is the case. Indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. If any such action does not resolve the claim to the Veteran's satisfaction, the RO must provide the Veteran and his representative a supplemental statement of the case (SSOC) and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further review. 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). 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). _________________________________________________ VITO A. CLEMENTI 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).