Citation Nr: 1325058 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-31 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a pulmonary disorder, claimed as chronic obstructive pulmonary disease (COPD)), to include as due to an undiagnosed illness. 2. Entitlement to service connection for hypertension, claimed as a heart condition, including as secondary to pulmonary disorder claimed as COPD. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from March 1987 to July 1995, including service in the Southwest Asia Theater of Operations in support of Operation Desert Shield/Desert Storm from December 1990 to May 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2009 and November 2011, the Board remanded these issues for further evidentiary development. Unfortunately, the evidence of record is still inadequate for disposition of these claims and additional development is warranted. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND In November 2011 the Board remanded the matter for provision to the Veteran of an examination with regard to his claim for service connection for a pulmonary disorder. In December 2011, the Veteran was examined by a private internist at the behest of VA. In his ensuing report the physician stated that he had reviewed the claims file, and then remarked that the Veteran had never been diagnosed with a respiratory condition. He next stated that the Veteran's inspiratory and expiratory phases were normal on physical examination; that chest x-rays were normal; and that the Veteran did not give sufficient effort during pulmonary function testing; and concluded that there was no pathology or respiratory diagnosis to support the Veteran's claim of shortness of breath. This conclusion is significant since the Veteran's claim is entitled to consideration as an undiagnosed illness under the presumptive provisions of 38 C.F.R. § 3.317. Moreover, the medical evidence of record clearly depicts a post-service history of pulmonary problems variously diagnosed as COPD, bronchitis, and bilateral pneumonia. See, e.g., private medical records dated in February 2000 (lungs with coarse wheezes, diagnosed as acute bronchitis); January 2005 x-ray findings of probable bibasilar infiltrates; a private medical record dated in January 2005, which shows a diagnosis of bilateral pneumonia; and a February 2006 VA examination diagnosis of COPD. The December 2011 examiner did not acknowledge these diagnoses. Remand for a new VA examination and opinion with regard to the claim for service connection for recurrent pulmonary complaints is accordingly warranted. 38 C.F.R. § 3.326. On remand ongoing medical records should also be associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). As the Veteran has claimed that his heart disorder/hypertension is secondary to his pulmonary disorder, that issue is remanded pending resolution of the claim for a pulmonary disorder. See Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical care providers who have recently treated him for his pulmonary complaints and his claimed heart disorder/hypertension. After attaining the necessary authorization from the Veteran, any relevant records which are not duplicates of records already in the claims file should be requested. The Veteran should be notified of the inability to obtain requested records. In addition, relevant VA treatment records dated after May 2012 should be obtained from the Fayetteville, North Carolina, VA Medical Center, including the Wilmington Community Based Outpatient Clinic. 2. After completion of step 1, schedule the Veteran for an examination by a pulmonologist. The claims file and electronic VA treatment records must be reviewed by the pulmonologist in conjunction with the examination. All indicated tests, including x-rays and pulmonary function testing, should be done, and all findings reported in detail. In formulating the requested opinions, the pulmonologist should note that the Veteran alleges exposure to asbestos dust from brakes, smoke from oil well fires, and lead in the water during service. Following review of the claims file and examination of the Veteran, the pulmonologist is then requested to respond to the following: a) Whether the Veteran has a diagnosed pulmonary disability or pulmonary symptoms attributed to a known clinical diagnosis. If so, the examiner should indicate more likely (greater than 50 percent probability), less likely (less than 50 percent probability), or at least as likely as not (50/50 probability), that the disorder is related to any incident of active duty service, including the Veteran's exposure to environmental hazards in the Persian Gulf during the Persian Gulf War. The examiner should explain the basis for the conclusions reached. b) Whether the February 2006 diagnosis of COPD is substantiated by the evidence of record; and, if so, whether it is more likely, less likely, or at least as likely as not, that the disorder is/was related to any incident of active duty service, including the Veteran's exposure to environmental hazards in the Persian Gulf during the Persian Gulf War. The examiner should explain the basis for the conclusions reached. c) Whether the January 2005 report of probable bibasilar infiltrates and the ensuing diagnosis of bilateral pneumonia resulted in any chronic residual pulmonary disability. Additionally, the examiner should opine whether it is more likely, less likely, or at least as likely as not that bibasilar infiltrates/bilateral pneumonia to include any residual disability, is related to any incident of active duty service, including the Veteran's exposure to environmental hazards in the Persian Gulf during the Persian Gulf War. The examiner should explain the basis for the conclusions reached. d) Whether the 2005 diagnosis of bronchitis resulted in any chronic disability. Additionally, the examiner should opine whether it is more likely, less likely, or at least as likely as not that the 2005 bronchitis, to include any residual disability, is related to any incident of active duty service, including the Veteran's exposure to environmental hazards in the Persian Gulf during the Persian Gulf War. The examiner should explain the basis for the conclusions reached. e) If there is no diagnosed disability that the Veteran's pulmonary complaints can be attributed to, the examiner should state whether there are objective signs and symptoms of the pulmonary complaints. The examiner should then indicate whether such represents an undiagnosed illness, and whether the disorder is related to service, to include the veteran's service in the Persian Gulf. The examiner should explain the basis for the conclusions reached. NOTE: The term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely and "as likely as not" are opinions in favor of service connection; "less likely" and "unlikely" are opinions against service connection. If the examiner cannot provide the above opinions without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After conducting any additional development deemed necessary, re-adjudicate the claims. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford the appropriate time period to respond. Then return the case to the Board for appellate review, unless otherwise indicated. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. A. BANFIELD 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).