Citation Nr: 1327255 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 06-38 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from March 1958 to November 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In September 2006, the Veteran testified before a Decision Review Officer (DRO). A hearing transcript is associated with the claims file. In February 2011, the Board remanded the case for additional evidentiary development. In February 2012, the Board denied the claim and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2012, the Court granted a joint motion for remand (JMR) and to vacate the Board's decision. The case has been returned to the Board for compliance with the terms of the JMR. 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 The Veteran seeks service connection for a respiratory disorder to include asthma and chronic obstructive pulmonary disease. The Veteran testified in September 2006 that he had respiratory problems when he was a baby but no problems on entry onto active duty. He stated that "I had a physical, and I never wheezed. I had no treatment for it, no pills or anything." Transcript at 2. He reported that he began to have renewed respiratory problems while on active duty in the Navy and he speculated that this was due to inhalation of fuels, solvents, other harmful toxins, and/or asbestos in service. The Board denied the claim in February 2012, in part, because clear and unmistakable evidence had been presented showing that asthma preexisted active duty service and was not aggravated by service. The Board's February 2012 decision was vacated by the Court because the parties agreed that the May 2007 VA medical opinion relied upon by the Board was "insufficiently detailed." JMR at 1-2. Specifically, the medical opinion was deemed inadequate because it "used two different standards for describing the likelihood that Appellant's respiratory disability pre-existed service and that it was aggravated during service." JRM at 2. The JMR provides as follows: Specifically, the VA examiner opined that 'there is clear and unmistakable evidence that the veteran had asthma prior to his entrance into service.' [citation omitted]. In contrast, the VA examiner opined that 'it is less likely than not that the veteran's current asthma problems were aggravated by service. [citation omitted]. The VA examiner's use of two different phrasings suggests that the examiner was less certain on the issue of aggravation than the issue of whether the disability pre-existed service, yet the examiner did not provide any explanation as to why he used different terminology. The JRM directs that the Board obtain clarification of the medical opinion. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should return the May 2007 VA medical opinion to the examiner for an explanation of why he used two different phrasings when discussing whether asthma pre-existed service (he stated that "there is clear and unmistakable evidence that the veteran had asthma prior to entrance in to service" and he also stated that "it was less likely than not that the veteran's current asthma problems were aggravated by service." The examiner should indicate if he is less certain on the issue of aggravation and, if so, why. Importantly, the examiner should clearly indicate whether there is clear and unmistakable evidence that asthma was not aggravated during the Veteran's active duty service. A complete rationale is required. That is, he should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). Essentially, the examiner's medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). The examiner may revise his previous medical opinion if so desired. But if he decides that an opinion cannot be expressed without resort to speculation, he must then discuss why an opinion is not possible, to include whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). If the examiner is not available, the claims file along with copies of any pertinent evidence located in Virtual VA that is not in the claims file should be forwarded to another appropriate VA physician, who should be instructed to provide a new medical opinion with supporting reasons. Another examination of the Veteran should only be performed if determined to be necessary by the person providing the opinion. 2. Then, the RO or AMC should also undertake any other development it determines to be warranted. 3. After the development requested above has been completed to the extent possible, the RO or AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the claims files are returned to the Board for further appellate action. The Veteran 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). _________________________________________________ MICHAEL LANE 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).