Citation Nr: 1330602 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 12-25 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a lung disorder. ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from August 1961 to August 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2009, the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. A May 2013 written statement from the Veteran's then-representative indicates that the Veteran was withdrawing his request for a formal DRO hearing in lien of an informal conference. That informal conference was conducted in May 2013. Therefore, the Board finds that all due process has been met with respect to the Veteran's hearing request. In September 2012, the Veteran submitted a completed VA Form 21-22, appointing Disabled American Veterans to represent him. That organization then represented the Veteran, to include during his informal conference in May 2013. On June 6, 2013, the Veteran submitted a completed VA Form 21-22, appointing The American Legion to represent him. On June 11, 2013, the RO received two written statements from the Veteran in which he indicated that he no longer wanted Disabled American Veterans to represent him. He stated that he wanted The American Legion to represent him. In July 8, 2013, correspondence, VA was informed that, since the Veteran perfected his appeal (filed a VA Form 9) with a different service organization for the issues on appeal, The American Legion was not able to represent him on the matter, and the power of attorney with regard to The American Legion was revoked. On July 10, 2013, the Veteran's appeal was certified to the Board. In a July 11, 2013 letter, the RO informed the Veteran that The American Legion had revoked its representation and offered him the opportunity to appoint other representation. The Veteran did not respond. The American Legion's revocation of representation prior to certification of the matter to the Board is appropriate, and the Veteran was informed of the revocation. The Veteran did not respond or appoint other representation, and the Board accepts this lack of response as the Veteran's intention to continue this appeal without a representative. A review of the Veteran's virtual VA claims files shows that any relevant evidence contained therein is also a part of the paper claims file. 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 Board finds that a remand is necessary because, although the Veteran was provided with a VA examination in May 2012 and an addendum in March 2013, these documents, even taken together, are not adequate. Specifically, in the May 2012 VA examination report, the examiner opined that the Veteran's lung disorder existed prior to service and was not aggravated therein. The stated rationale was that the Veteran had no complaints during service and that there was just a finding on an x-ray. He then indicated that there were no subjective or objective findings. However, a review of the service treatment records shows that there was a finding on x-ray of an infiltrate in the Veteran's lower left lobe. Therefore, this opinion and rationale are contradictory. Furthermore, this opinion does not address the specific diagnoses separately. In the March 2013 addendum, a separate examiner concluded that he saw no indication that the Veteran's respiratory condition was permanently aggravated by service, but he provided no rationale for the conclusion. He also concluded that chronic obstructive pulmonary disease (COPD) was not caused by, incurred in, or permanently aggravated by service without providing a rationale. Thus, this opinion is also inadequate. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner that evaluated the Veteran in May 2012 or provided the addendum in March 2013, if available. If both examiners are not available, submit the claims file to a similarly qualified examiner. The examiner is asked to review the claims file, including the service records, post-service treatment records, and lay statements and provide responses to the following: (a) What are the Veteran's current lung diagnoses, to include any diagnosis since he filed his claim in May 2010? (b) For each current lung diagnosis since May 2010, did it clearly and unmistakably exist prior to service? If so, was there an increase in the disability during service, and was the increase due to the natural progression of the disorder or did it represent a chronic worsening of the underlying pathology? (c) For any current lung diagnosis that did not preexist service, is it at least as likely as not that it manifested in service or is otherwise related to his military service, to include his symptomatology therein? In answering this question, please address whether any currently diagnosed lung diagnosis is related to findings shown and treatment provided in June 1964 and July 1964. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with this REMAND. 3. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit is not granted, the Veteran should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned 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). 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). _________________________________________________ JESSICA J. WILLS 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).