Citation Nr: 1330013 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-42 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a chronic lung/respiratory disorder, to include residuals of pneumonia and chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION 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 & Supp. 2012). The Veteran served on active duty from February 1952 to February 1956. His DD FORM 214 reflects that his most significant duty assignment was "86th Fighter Interceptor Squadron," and there is report that he attended service training courses in aircraft mechanics. In documents of record, it was noted that he served as a crew chief. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). That decision, in part, denied service connection for a chronic lung disorder, to include residuals of pneumonia. The claim has now been reclassified as on the title page of this decision as the Board has concluded that such best represents the claim on appeal. Initially, as a procedural matter, the Board notes that following the Veteran's timely notice of disagreement (NOD) with the September 2008 rating decision, he submitted a November 2008 statement in which he requested cancellation of his appeal as he had decided to refile at a later date. Under VA regulations, an appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by a veteran or by his or her authorized representative. As the Veteran indicated in his November 2008 written statement that he wished to withdraw his claims for service connection, to include residuals of pneumonia, his appeals were considered withdrawn as of the date of the filing of the written statement. Subsequently, in March 2009, the Veteran again filed for service connection for the issues previously addressed in the September 2008 rating decision. Specifically, as it relates to the case at hand, the Veteran again filed a claim for service connection for residuals of pneumonia. The Board notes that the withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement (NOD) and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude the filing a new NOD and, after a statement of the case (SOC) is issued, a new substantive appeal, as to any issue withdrawn, provided such filing would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 20.204(c) (2012). There are no statutory or regulatory provisions allowing for reinstatement of an appeal once it has been withdrawn and the time period for perfecting an appeal has expired. The Board has viewed the March 2009 refiling of the claim for service connection for residuals of pneumonia as a timely NOD with the initial denial of the claim in September 2008. In order to be timely, a veteran must submit a NOD within a one year period from the date of mailing of the notification of the rating decision being appealed. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.302 (2012). As the March 2009 statement requesting refiling of the claim of service connection for residuals of pneumonia was submitted within one year of the September 2008 denial of the claim, it is considered a timely NOD, and revives the claim on appeal. See 38 C.F.R. §§ 20.204(c), 20.302 (2012). Thus, the appeal is as on the title page of this decision, and the Board will review the claim on a de novo basis. Review of the relevant SOC and supplemental statements of the case (SSOCs) reflects that while the previously denial of the claim was mentioned on more than one occasion, the RO actually reviewed the evidence in full. Thus, he is not prejudiced by its proceeding to a decision on the merits. A videoconference hearing was held in July 2013 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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 Following the issuance of the most recent supplemental statement of the case (SSOC) in December 2012, the Veteran submitted additional medical evidence. Of record is a July 2013 waiver of consideration by the agency of original jurisdiction (AOJ) of additional evidence obtained from the VA medical facility in Waco, Texas. See 38 C.F.R. § 20.1304 (2012). Virtual records reflect that additional VA records from the Dallas, Texas, VA medical facility were subsequently added to the claims file. These records, dated through August 2013, were not covered in the above waiver. Moreover, an August 2013 opinion by a private physician (J.M., DO) was added to the record in September 2013 without a waiver of initial AOJ consideration. The Board notes that the record includes another medical opinion by this same physician dated in 2008. However, the 2013 opinion is not duplicative of the previous opinion as the physician attributes the Veteran's COPD to exposure to toxious fumes in his military occupational specialty as a mechanic. He had previously opined that the Veteran's COPD was due to inservice treatment for pneumonia. At any rate, these records and opinion must be reviewed by the AOJ on remand in the first instance. 38 C.F.R. § 20.1304(c) (2012). And, in light of the above, the Board finds that a VA examination is necessary at this time in order for an opinion as to a relationship to military service may be provided. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006); see also Duenas v. Principi, 18 Vet. App. 512 (2004). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 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. Obtain all private and VA treatment records that are not of record which reflect treatment for the Veteran's respiratory disorder, diagnosed as COPD. This should include all records dated subsequent to August 2013 from the Waco and Dallas, Texas, medical facilities where the Veteran has reported treatment and received treatment in the past. If the records are unavailable and further attempts would be futile, the claims file should be so annotated and the Veteran notified of such. 2. Following completion of the above, the Veteran's claims file should be reviewed by an appropriate VA medical specialist, for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has a present respiratory disability, to include COPD disease, as a result of a verified event, disease, or injury in active service. The examiner should be notified that the Veteran's exposure to aircraft fumes is considered to be verified events in service. The examiner's report should include discussion of the Veteran's inservice treatment for pneumonia on two occasions, his inservice exposure to aircraft fumes, his cigarette smoking, and his post service employment in the mills. All indicated examinations, tests, and studies are to be performed. Opinions should be provided based on the results of any examination, a review of the medical evidence of record, and sound medical principles. A complete rationale for all opinions expressed should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issue 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 (SSOC) 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).