Citation Nr: 1327108 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 07-11 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for residuals of pneumonia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from January 1966 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The rating decision denied the Veteran's petition to reopen claims for service connection for asthma and residuals of pneumonia. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in Louisville, Kentucky. In July 2010, the Board reopened the Veteran's claims and remanded them for further development. In August 2011, the Board denied his claims. The Veteran appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and in a November 2012 Memorandum Decision, the Court vacated the Board's August 2011 denial and remanded the matter to the Board for development consistent with the Memorandum Decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In May 2013 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND While the Board regrets the further delay that another remand of this case will cause, the record is not ready for appellate review of the issues on appeal. The following further development is required. With regard to the Veteran's asthma claim, the June 2013 VA examiner concluded that the record showed that his asthma pre-existed service. A supplemental opinion regarding aggravation of a pre-existing disability is needed to ensure that a comprehensive etiology opinion is of record prior to adjudication of the Veteran's claims. With regard to the Veteran's claim for service connection for residuals of pneumonia, in its May 2013 remand, the Board requested that the Veteran's claims file be provided to an appropriate clinician for a supplemental opinion regarding the Veteran's residuals of pneumonia. In providing a negative etiology opinion, the examiner stated that the Veteran suffered from right lower lobe pneumonia in service, "not a bilateral pneumonia," and that post-service chest x-rays showed chronic appearing interstitial changes in both lungs. The examiner stated that this was evidence against the Veteran's claim. The Veteran's service treatment records (STRs) show that he was hospitalized for pneumonia in February 1966. Upon initial examination, he had a slight dullness to the right lower lobe, and was diagnosed with right lower lobe pneumonia. Later in February 1966, rales were heard in both the right and left lower lobes. The final diagnosis was pneumonia of the right and left lower lobes. Therefore, the examiner's conclusion that the Veteran did not have bilateral pneumonia in service appears to be inaccurate. The negative opinion is not adequate because it is based in part upon an incorrect factual basis. The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Even if not initially obligated to do so, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). On remand, another supplemental opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who provided the June 2013 supplemental opinion. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the supplemental opinion is to determine whether the Veteran has asthma that had its onset or was aggravated during active service; is otherwise related to any incident of service, or existed prior to service and was aggravated by service. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) The examiner must provide an opinion as to whether the Veteran's asthma began during active service, or is related to any incident during active service, or existed prior to service and was aggravated by service. The examiner is advised that the evidentiary standard whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." d) After reviewing the record and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to each of the following questions: i) On the basis of the clinical record, can it be concluded as medically undebatable that the Veteran's asthma preexisted his entry into active military service? ii) If it is found as medically undebatable that asthma did clearly preexist service, can it also be concluded as medically undebatable that it was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? iii) If asthma is not found to have so preexisted service, did it have its onset during active military service? e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. f) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. A complete explanation for such a finding must be provided. 2. Return the Veteran's claims file to the examiner who provided the June 2013 supplemental opinion. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The purpose of the supplemental opinion is to determine whether the Veteran has residuals of pneumonia that had their onset or were aggravated during active service, or are otherwise related to any incident of service. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran has residuals of pneumonia that began during active service, or are related to any incident of service. d) The examiner is advised that the Veteran's STRs show that the final diagnosis with regard to his pneumonia is that he had pneumonia in both the right and left lower lobes. e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. f) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. A complete explanation for such a finding must be provided. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ S. L. Kennedy 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).