Citation Nr: 1327477 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 08-28 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for residuals of a head trauma (originally claimed as concussion). 2. Entitlement to service connection for a respiratory disability. 3. Entitlement to service connection for residuals of a chest injury. 4. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1974 to June 1977. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In April 2011, the Veteran testified before the undersigned Veterans Law Judge during a hearing held at the RO. A copy of the hearing transcript has been associated with the claims folder. The Board remanded these claims in June 2011 and March 2013 so that additional development of the evidence could be undertaken. The issue of entitlement to service connection for a respiratory disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Claimed residuals of head trauma are not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. Claimed residuals of a chest injury are not shown to be causally or etiologically related to any disease, injury, or incident in service. 3. Headaches are not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. Claimed residuals of a head injury were not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. Claimed residuals of a chest injury were not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. Headaches were not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (West 2002 & Supp. 2012). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a May 2007 letter, sent prior to the initial November 2007 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records, and Social Security Administration records, have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. In that regard, on previous remand, the RO requested that the National Personnel Records Center send any additional or separately held records pertaining to the Veteran's reported head trauma at Fort Leonardwood, Missouri, and head trauma in Fort Ord, California, and received a response that all records were previously mailed. There were no additional records located. The RO also requested any available records from identified VA medical facilities, with a negative response received. The Board has also reviewed the Veteran's paperless Virtual VA claims file, and notes no additional documents in the Virtual VA file not already contained in the paper claims file. Therefore, the Board finds that VA has satisfied its duty to assist in obtaining all available records. Additionally, the Veteran was afforded a VA examination in March 2013 in order to adjudicate his service connection claims. In this regard, the Board finds that the proffered opinions regarding the etiology of the Veteran's claimed disabilities, including that pertaining to a traumatic brain injury, were based on an interview with the Veteran, a review of the record, and a full examination. Moreover, the examiner offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board has considered the Veteran's representative's arguments in determining that the opinions proffered are adequate to decide the claims. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal, but did not note the specific elements necessary to substantiate service connection claims. This was not necessary, however, because the Veteran volunteered his information regarding the history of his injuries and his symptoms and treatment since service, thus fully describing why he believed service connection was warranted. Accordingly, the Veteran is not shown to be prejudiced on this basis. The VLJ asked questions related to the submission of any additional evidence. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board notes that the Veteran's claims were remanded in June 2011 and in January 2013 in order to obtain outstanding treatment records, any outstanding service records, and to obtain a VA examination. As such directives have been substantially complied with, as discussed in the preceding paragraphs, no further action is necessary in this regard. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis The Veteran contends that during his military service he incurred head and chest injuries in two separate incidents. The first incident was reported to have occurred in June 1974, when a concussion grenade went off during basic training and as a result of the explosion, the Veteran reports that he was thrown ten feet. The Veteran reports that he was treated for injuries to his head and chest at the service hospital in Fort Leonardwood in Missouri. The second incident reportedly occurred in May 1977, when a 10-ton trailer collapsed on the Veteran while he was working as a heavy vehicle mechanic. He stated that the trailer hit the top of his head and he lost consciousness. He had back pain following the injury. The Veteran reported that he was treated for his injuries and placed on light duty for the remainder of his period of service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) . Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may granted with evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307, credible lay evidence of continuous symptoms may establish service connection. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service treatment records reflect that on June 1974 entrance examination, it was noted that the Veteran had had a skin graft taken from his right abdominal anterior wall in 1964. In June 1974, he was treated for an acute respiratory disease. He also had a sore throat, headaches, and stiff neck, as well as a temperature. A chest x-ray was negative. On April 1977 separation examination, the Veteran reported headaches which were related to his sinusitis, in progress. It was noted that he had scattered abdominal scars/injuries. Service personnel records reflect that the Veteran worked first in engineer equipment maintenance from November 1974 to January 1976, then worked as a light vehicle driver until October 1976, and then as a senior engineer equipment mechanic until discharge. There are no documents to suggest any head trauma or injury as described by the Veteran, nor is there indication of any disciplinary action taken regarding the Veteran. Post-service treatment records reflect that on a psychiatric evaluation dated in July and August 2002, the Veteran reported being in chronic pain since an industrial accident that occurred after service in September 2000. At the time of the industrial accident, he was driving a truck when he was hit by a drunk-driver and injured his ribs and spine. He reported losing consciousness for a few seconds, and stated that since the injury, he was short-tempered, angry, and forgetful. He had had two previous industrial injuries, in June 1999, when he was driving and the engine turned off causing a loss of control of the vehicle and a resulting injury manifested by a sprain to the upper neck, and in December 1999, when he lost control of a van and landed in a 10-foot ditch, leading to a sprain of the neck and spine. Under the DSM-IV, he met many of the criteria for a postconsussional disorder and posttraumatic stress disorder related to these incidents. He complained of chronic pain, including headaches, specifically stating that the headaches were present since the September 2000 injury. A review of the treatment records showed assessments that the Veteran was suffering from positive Waddell's signs and appeared to perceive that he was in more pain than his disabilities demonstrated. His psychiatric diagnoses were concluded to be related to the September 2000 industrial injury. A private neurological examination dated in October 2001 reflects a report of the September 2000 injury, stating that there was no sign of head trauma. At the time of the accident, he had a straining injury of the neck. He reported daily headaches, constant neck pain, constant pain of the entire spine, constant pain, weakness, and numbness of the left arm, pain and pins and needles of the left leg, and increased urinary frequency. A review of the pertinent records by the neurologist reflected the Veteran's report that he had a history of injury from the prior motor vehicle accidents. Under past medical history, it was noted only that he had had the two previous accidents. He was not being treated for any other conditions than those described. Related private treatment records dated from 2000 to 2003 do not mention any other previous injury or residuals other than the motor vehicle accidents that occurred in 1999 and 2000. A January 2001 record notes that the Veteran had had daily headaches since June 1999 following an automobile accident and that they returned following the September 2000 accident. The physician thought that most of the headaches were "perhaps related to his recurring neck injuries ... his chronic daily headaches, probably due to abuse of analgesics and Valium." A private orthopedic evaluation dated in December 2004 and February 2005 reflects that the Veteran spent most of his time in a wheelchair or in his bed. Other than the 1999 neck injury, no previous injuries were listed. He reported sinus and nasal problems. He reported having chest pains. He reported pains in his neck and in the occipital area. He had burning in his left arm and left leg. His current orthopedic injuries were: status post motor vehicle accident with fractured left tenth rib, healed, cervicothoracic straining injury, related as an aggravation of a pre-existing condition, straining injury of the lumbar spine, related, and severe, apparently incapacitating, diffuse pain complaints of an undetermined etiology subsequent to injury. On March 2013 VA traumatic brain injury examination, the examiner determined that the Veteran did not currently have, and did not have residuals of, a traumatic brain injury. The Veteran reported that in 1974, he was right next to a bunker that blew simulated explosions. It knocked him 10 feet into the air and he landed on a boulder, sustaining a concussion. He was unconscious for an unknown duration and was hospitalized for about a week. He was on crutches and did not find out until 2000 that he had a concussion and hairline fracture in his pelvis due to an old injury. He was placed on light duty due to this injury. Then, in April or May 1977, he had another head injury when a 10-ton truck fell on top of him and rendered him unconscious for a bit. He was again placed on light duty following the injury. Following service, he had a phobia of getting under vehicles, with panic attacks. He worked in maintenance for eight months, then worked for the same company as a machine operator for 9 years, with one episode in which he was fired due to his anger problems and then re-hired. He then moved away from California due to anxiety over earthquakes. He reported having had headaches since the bunker concussion that were worse when he was angry. His daughter had left him for a week about a month earlier due to his anger. He had headaches every day, most often at night, necessitating rest. Following service, he used marijuana and cocaine to deal with his stress. The headaches were light, he did not have migraines, but sometimes had nausea. He had double vision when having a headache. He avoided stressful situations which would trigger his anger. The Veteran reported that he did not file a claim following service because he used drugs to cope with his symptoms. He reported getting 9 article 15s in service due to fights. The examiner noted one note of a headache in service. The examiner thoroughly reviewed and summarized the evidence in the claims file, noting a 2012 MRI of the brain showing a pituitary adenoma, as well as details from the previous post-service motor vehicle accidents. Cognitive screening on VA examination was found to be unusually low for an individual who was otherwise able to report events without significant cognitive difficulties. Neurological and psychometric testing were normal, as well as other testing for traumatic brain injury. Based upon examination of the Veteran, the examiner determined that an in-service traumatic brain injury could not be substantiated. Even if an in-service traumatic brain injury could be substantiated, it would not likely be any more than mild and would be less likely than not to have resulted in any residual neurocognitive or neurobehavioral effects. That opinion was based in part on the Veteran's ability to work for the majority of the time post military discharge until significant symptoms appeared following a 1999 industrial accident and a 2000 motor vehicle accident with a reported brief loss of consciousness. Moreover, following service, the Veteran had filed a claim for a back and hand condition, but not for headaches or a head injury. The VA examiner stated that with regard to the Veteran's headaches, the service records showed that the Veteran's headaches in service were associated with other symptoms suggestive of viral illness, with no mention of injury. There was no other evidence of headaches until the 2000 accident. His headaches described on examination were more consistent with tension headaches, occurring later in the day, generally not disabling, generally not requiring treatment, usually brought on by stress and generally without associated symptoms. His reports of some nausea was also consistent with his diagnosis of Crohn's disease and was more likely related to that condition. Due to the above, it was less likely than not that his headaches were related to a traumatic brain injury in service or to service. Even if there was one record of headaches in service, that was most likely due to sinus headaches. It was also less likely than not that his small pituitary adenoma was related to service or that his headaches were related to that condition. At the outset, the Board finds that it is questionable whether the Veteran currently, or at any time during the appeal period, has suffered from any diagnosed residuals of a head or chest injury. While he did sustain injuries to his spine when he was involved in three post-service automobile accidents, there is no current diagnosis of a head or chest injury. Absent evidence of a current diagnosis, service connection for either claimed condition is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability"). However, even if the Veteran does currently suffer from a chest or head injury, and with regard to his headaches, the Board places great probative weight on the 2013 VA examiner's opinion that the Veteran's claimed residuals of a head injury and chest injury, and headaches, were less likely than not caused or aggravated by his service. Significantly, the examiner found no indication that the claimed injuries in service occurred or that, if they did occur, they resulted in a current traumatic brain injury or headaches. Such was the case because there was no substantiation that the injury occurred in the service records or in the post-service records. Moreover, the Veteran was able to work until his industrial and automobile accidents, indicating that he did not suffer occupational impairment. He did not display signs or symptoms of a traumatic brain injury or residuals of the reported service injuries on examination. The post-service treatment records did not reference any prior injury like the ones the Veteran reported to have occurred in service. Thus, the examiner could not diagnose any residuals related to the reported service injuries or state that those injuries occurred. The Board finds the 2013 VA examination to be persuasive because it comports with the record. In this case, the record calls into question the Veteran's credibility. For, to the extent that the Veteran has contended that he was injured in the bunker accident and by the 10-ton truck, suffered loss of consciousness, was hospitalized, and was placed on light duty, the Board finds such statements to lack credibility and, therefore, accords no probative weight to such contentions. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may, however, in the present case, consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). First, there is no indication that the service treatment records are incomplete, as both the entrance and separation examinations are of record, and the NPRC stated that there were no other separately held records for the Veteran. Next, the service treatment records are completely negative for any indication of either injury, which appeared to have been severe according to the Veteran's descriptions. Specifically, separation examination made no mention of any concussion or any in-service hospitalization or injury to the head or chest. Though it was noted that the Veteran had abdominal scarring, such was also noted on entrance examination and was due to previous skin graft. Moreover, though the Veteran reported that he had had numerous Article 15s for fighting in service, and that he was placed on light duty for an extended period of time following the two injuries, neither appears to be the case when reviewing his service personnel records, which only show that he was continuously employed in his military occupational specialties throughout service. Furthermore, the post-service evidence weighs heavily against the Veteran's claims. For one, in 1978, the Veteran filed a claim for a back disability and a hand disability, and at the time did not mention either of the severe injuries he relates in the current appeal. Then, the private treatment records revolving around his three motor vehicle accidents clearly state that he begun to experience headaches following those accidents. Those records are repeatedly negative for an indication of any previous injury, especially ones as the Veteran has described in service. The records do not show a history of headaches, a chest injury, or a head injury. To the extent that the Veteran states that he had a hairline fracture to his pelvis related to a previous injury, there is no indication that such was caused or aggravated by his service, and he is not currently claiming service connection for a pelvis injury. Therefore, the Board does not find the Veteran's arguments to be probative, especially in light of the inconsistent evidence in the file. To the extent that the Veteran claims that his headaches began in service, the 2013 VA examiner found no medical link between the currently described tension headaches and the headaches reported in service. Rather, the note in service was linked to a viral infection and sinusitis. There is no competent, credible, or probative medical evidence or medical opinion in the claims file to weigh against that opinion, and the Board finds the 2013 VA opinion to be persuasive in finding against the claim for service connection for headaches. Thus, the Board finds that the Veteran's current statements, made in connection with his pending claim for VA benefits are inconsistent with the contemporaneous evidence. Therefore, the Veteran's lay assertions are not credible and are less persuasive in light of the other evidence of record, and are, in fact, outweighed by this evidence, specifically by the 2013 VA opinion. Consequently, based on the foregoing evidence, the Board finds that the Veteran's statements regarding the in-service events and continuity of symptomatology to be not credible. The Board notes that the Veteran has contended on his own behalf that he had residuals of a head and chest injury and headaches related to his military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Because, while the Veteran is competent to describe his symptoms, the Board accords his statements regarding the etiology of such disorders less probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Moreover, the Veteran has only offered conclusory statements regarding the relationship between his military service and his headaches and claimed chest and head disabilities. By contrast, the 2013 VA examiner took into consideration all the relevant facts in providing the opinion reached, as described in detail above. No head or chest disability was diagnosed and his headaches were not attributed to his service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for residuals of a head injury and a chest injury, and for headaches. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for the residuals of a head injury is denied. Service connection for the residuals of a chest injury is denied. Service connection for headaches is denied. REMAND Additional development is necessary prior to further disposition of the claim for service connection for a respiratory disability. The Veteran contends that his current respiratory disability was caused or aggravated by exposure to gas chamber training in service. He alternatively claims that two injuries that occurred in service, one wherein he was thrown 10 feet in the air following a grenade explosion and the second wherein a 10-ton jeep collapsed on him, caused or aggravated his current respiratory disability. Service treatment records reflect that in June 1974, he was treated for an acute respiratory disease. He also had a sore throat, headaches, and stiff neck, as well as a temperature. A chest x-ray was negative. On April 1977 separation examination, the Veteran reported headaches which were related to his sinusitis, in progress. It was noted that he had scattered abdominal scars/injuries, though it was also noted on entrance examination that he had had a previous skin graft of the abdominal wall. There are no VA or private treatment records to demonstrate a continuity of respiratory symptoms from service to 2013. Rather, when reviewing the private records related to motor vehicle accidents that occurred in 1999 and 2000, no respiratory history was noted and no diagnosis was made. On February 2013 VA examination, the Veteran reported that he developed mild obstructive lung disease around 2003 with the need for inhalers from a single bout of bronchitis. He used the inhalers for 6 months and had not used bronchodilators since then. He had never smoked. He reported that while in service, he had a severe respiratory response to gas chamber training, having been in the gas chamber three times during basic training. The examiner reviewed the service treatment records and found one record showing that in June 1974, the Veteran had acute respiratory disease with a negative chest x-ray. His separation examination did not show any respiratory complaints or conditions. Physical examination on VA examination did not result in any finding of current symptoms. Pulmonary function testing was completed but for one aspect of the test due to reported claustrophobia. A diagnosis of asthma and pulmonary embolism was given. Following review of the claims file, the examiner determined that it was less likely than not that the Veteran's current respiratory disorders were caused or aggravated by service. The examiner explained that the Veteran's service records did not reflect the history the Veteran contended occurred while in service. The service records did not show any respiratory conditions or diagnosis in service nor did they demonstrate the reported in-service events. For example, there was no evidence of scars on the chest related to the two reported events in service, nor was there a history of fracture of the ribs. The mild obstructive airway disease shown on testing was considered to not be a very good evaluation due to the resistance when performing the test. All other respiratory tests in the file, especially following the 2000 injury, did not support any chronic or progressive respiratory condition. There was no new or convincing evidence that the two stated incidents in service occurred or that permanent injury followed. The current chest x-ray did not show emphysema or chronic obstructive pulmonary disorder. There was no prevailing documentation to show a connection to service. In February 2013, however, the Veteran submitted a private record showing that on spirometry, moderate airway obstruction was found. Additionally, lung volumes were reduced, indicating a concurrent restrictive process. The diagnosis was moderate obstructive airway disease, severe restriction, possible. The Veteran did not submit a waiver of RO jurisdiction of this evidence. In this case, because the Veteran has submitted evidence of a new diagnosis of a respiratory disability that differs from that found by the March 2013 VA examiner, a new opinion must be obtained. Specifically, the March 2013 VA examiner found no indication of more than a mild respiratory disorder and based the opinion reached upon that diagnosis, but the more recent record shows a moderate to severe respiratory disability. Thus, with this new evidence in mind, a new nexus opinion should be obtained to determine whether the Veteran's current respiratory disability was caused or aggravated by his service. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of his respiratory disability. The examiner should review the claims file, to include the February 2013 private record showing a diagnosis of "moderate obstructive airway disease, severe restriction, possible", the service treatment records, the post-service treatment records, and the March 2013 VA respiratory examination. It is requested that a well-explained rationale accompany the opinion reached. a) Diagnose the Veteran's current respiratory disability. b) Is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's current respiratory disability was caused or aggravated by his service, to include i) his report that his lungs were affected by being in the "gas chamber" three times during basic training, ii) the indication of sinusitis in service, and iii) his contentions that his respiratory disabilities were caused or aggravated by injuries sustained after being thrown 10 feet in the air following a grenade explosion and when a 10-ton jeep collapsed on him. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs