Citation Nr: 1330356 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-35 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a respiratory disorder claimed as a breathing condition. ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service from April 1958 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Buffalo, New York. The case was remanded in February 2011 and June 2013 for further development. The issue of entitlement to service connection for nervous condition and anxiety has been raised by the record. Specifically, the Veteran reported to the April 2012 VA examiner that his claim for nerve damage was supposed to be a claim for a nervous disability and anxiety. In this regard, the Board recognizes that the RO issued a May 2012 rating decision in which it granted service connection for posttraumatic stress disorder. Consequently, there may be some overlapping of symptoms. Nonetheless, the issue of entitlement to service connection for a nervous disability/anxiety has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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. REMAND The Veteran contends that he suffers from a respiratory disability as a result of being struck by lightning in service. In affording the benefit of the doubt to the Veteran, the Board accepts that he was indeed struck by lightning. In its June 2013 remand, the Board noted that the Veteran was diagnosed with an in-service upper respiratory infection in November 1958, and that he completed a March 1960 Report of Medical History in which he indicated "shortness of breath - no trouble now." The Board remanded the claim in June 2013 because the April 2012 examination was inadequate. The examiner noted that the diagnosis of the Veteran's respiratory disability was made 42 years after being struck by lightning. In so finding, the examiner failed to recognize that the Veteran had numerous respiratory problems in the 1970s. In September 1975, he had a cough and runny nose that was diagnosed as a common cold. In April 1976 and August 1976, he was diagnosed with an upper respiratory infection (URI). In September 1976, he experienced nasal congestion, sneezing, and coughing. It was thought to be due to allergies. In February 1977 and March 1977, the Veteran was diagnosed with another URI. He was diagnosed with common colds in December 1977 and September 1978. Finally, he was diagnosed with another URI in July 1980. The Veteran underwent a VA examination in July 2013. Unfortunately, the examination report is again inadequate for the very same reason. Once again, the July 2013 failed to consider the Veteran's in-service treatment in November 1958, and his post service treatment in September 1975, April 1976, August 1976, September 1976, February 1977, March 1977, December 1977, September 1978, and July 1980. In opining that the Veteran's respiratory disability is less likely than not related to service, the July 2013 examiner stated that the Veteran has been a patient at the VA since approximately 2003 and has never been on any respiratory meds, inhalers or been seen by the pulmonary clinic. Consequently, it appears that the examiner's opinion was based on the Veteran's lack of treatment. The Board recognizes the lack of treatment; however, the examiner is advised that the Veteran is competent to report his symptoms and history. At his April 2012 examination, he reported that he would periodically (once or twice per week) become short of breath, but he did not seek treatment for it. Consequently, the Board finds that the Veteran is entitled to a new VA examination for the purpose of determining the nature, extent, and etiology of the Veteran's current respiratory disability. 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. The RO should make sure that the VA records are updated and in the claims folder. 2. The Veteran should be afforded a VA examination for the purpose of determining the nature, etiology and severity of the Veteran's respiratory disability or disabilities. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any respiratory disability began during or is causally related to service, to include whether any disability is causally related to (1) the lightning strike of July 29, 1958 or (2) the Veteran's November 1958 upper respiratory infection. The examiner must provide reasons for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. Additionally, the examiner must discuss the service treatment report of November 1958 and the post service treatment reports dated September 1975, April 1976, August 1976, September 1976, February 1977, March 1977, December 1977, September 1978, and July 1980. 3. For the sake of avoiding further remands, the RO should ensure that there has been substantial compliance with the remand instructions. 4. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ ERIC S. LEBOFF 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).