Citation Nr: 1327742 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-18 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to an initial (compensable) rating for service-connected residuals of lung cancer with lobectomy, history of bronchopleural fistula and pneumothorax. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1952 to May 1956. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in April 2013, which granted a joint motion for partial remand setting aside that part of a September 2012 Board decision denying entitlement to service connection for COPD. The Board's September 2012 remand of the increased rating issue was not disturbed. The appeal arose from an October 2009 rating decision on behalf of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. He testified before a decision review officer in February 2010. Copies of the transcripts of those hearings are of record. As noted above, the Board remanded the increased rating issue in September 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 on his part. REMAND In its April 2013 order, the Court, by incorporating the terms of the joint motion for partial remand, found further action was required as to the issue of entitlement to service connection for COPD. It was noted, in essence, that a medical opinion was required to address whether COPD could be related to, or aggravated by, service-connected lung cancer and that the Veteran had not been adequately notified that his service connection claim had been denied for lack of competent medical nexus evidence between his in-service asbestos exposure and his COPD and between his service-connected lung cancer and his COPD. Therefore, additional development is required. Although the increased rating issue was previously remanded for additional development, the Board finds that based upon the receipt of VA examination findings dated in October 2012 further development is required. Those findings include pulmonary function test (PFT) results that are inconsistent with the findings dated in January 2009 and August 2007. This matter cannot be reconciled without additional medical opinion. The October 2012 examiner noted post-bronchodilator FEV-1 findings of 73 percent predicted and noted this most accurately demonstrated the level of disability, but provided no comments as to the post-bronchodilator FEV-1 findings in January 2009 of 53 percent and in August 2007 of 46 percent. It is also significant to note that staged ratings may be assigned for periods of time when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that the Veteran's service-connected residuals of lung cancer with lobectomy, history of bronchopleural fistula, and pneumothorax are presently rated under the criteria for 38 C.F.R. § 4.97, Diagnostic Code 6844. The applicable VA regulations provide, in pertinent part, that when there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is to be used. See 38 C.F.R. § 4.96(d) (2012). The examiner should apply this provision of the regulation, if indicated. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Notify the Veteran that competent medical nexus evidence between in-service asbestos exposure and COPD or between his service-connected lung cancer and his COPD is required to substantiate his service connection claim. 2. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issues on appeal. After the Veteran has signed any necessary releases, all indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 3. Following completion of the above, the Veteran should be scheduled for an appropriate specialty examination in order to determine the etiology of his COPD and the severity of his service-connected residuals of lung cancer with lobectomy, history of bronchopleural fistula and pneumothorax. The claims file must be made available to the examiner for review of pertinent documents therein and the examination report should reflect that such a review was conducted. An opinion should be provided as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's COPD is of service onset or otherwise related thereto, to include as due to inservice asbestos exposure, which exposure has been conceded. The examiner should opine as to whether is it at least as likely as not (50 percent or greater probability) that the Veteran's COPD is proximately due to or the result of his service-connected residuals of lung cancer with lobectomy, history of bronchopleural fistula and pneumothorax. The examiner should opine as to whether is it at least as likely as not (50 percent or greater probability) that the Veteran's COPD was aggravated (permanently increased in severity beyond natural progress) by his service-connected residuals of lung cancer with lobectomy, history of bronchopleural fistula and pneumothorax. The extent of any aggravation found should be set forth in detail. All indicated examinations, tests, or studies necessary for an adequate opinion must be conducted. Detailed findings concerning the current manifestations of the service-connected residuals of lung cancer with lobectomy, history of bronchopleural fistula and pneumothorax must be set forth. An explanation must be provided as to any disparity between the results of the different PFT's and as to which finding or findings most accurately reflect the level of disability since June 24, 2008, the effective date of the grant of service connection and assignment of an initial noncompensable evaluation. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ BARBARA B. COPELAND 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).