Citation Nr: 1331104 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-29 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran had active service from February 1980 to May 1984, from October 2001 to June 2002, from November 2002 to February 2003, from April to October 2005, and from October 2010 to January 2011. He also had active duty for training from January to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This matter was remanded for further development in August 2011 and again in February 2013. Based upon information received as part of the last remand, including the results of a VA chest examination and an associated medical opinion, additional development is warranted. The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the Virtual VA and VBMS system, to ensure a complete review of the evidence in this case. 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 This matter has been previously remanded in August 2011 and February 2013. In the March 2013 VA examination, the examiner diagnosed restrictive lung disease and noted a history of asthma since 2006; however, the etiology of the Veteran's respiratory disorders was not clear. On one hand, when asked to choose the statement that most closely approximates the etiology of the claimed condition, the examiner selected, "[t]he claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." This suggests a relationship between the claimed disorder and service. On the other hand, the rationale for the opinion reads that, "it is less likely as not (50% or less probability) that this Veteran's current claimed condition was incurred in or related to military service." In this context, the examiner explained that "it is not known what effect exposure to burn pits in Southwest Asia will have on long term respiratory health outcomes." This suggests no relationship between the claimed disorder and service. This inconsistency must be resolved in order to properly adjudicate the claim. The Board must have a clearly articulated medical opinion about the etiology of the Veteran's respiratory disorders. The current medical opinion reaches conflicting conclusions and is unclear about whether current research on exposure to burn pits makes it possible to provide an etiologic opinion without result to mere speculation. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA clinical records from the VA Medical Center in East Orange, New Jersey, for the period from October 2011 to the present. Any relevant treatment records contained in the Virtual VA or VBMS file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 2. Direct the claims file to the examiner who conducted the March 2013 VA chest examination for an opinion. The claims folder and a copy of this remand must be made available to the examiner and the examiner should note such review in the report. If the examiner is not available, direct the claims file to another reviewer for an opinion. If the reviewer determines that an additional examination is needed in order to offer a medical opinion, such an examination should be scheduled. After a review of the file, the reviewer/examiner is asked to render an opinion as to the following: * Is it at least as likely as not that any currently-diagnosed respiratory disorders are related to service. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's respiratory disorders. 3. Upon receipt of the report, the RO should conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, the RO should refer the report to the VA examiner for corrections or additions. 4. After all appropriate development above has been accomplished, review the record, including any newly acquired evidence, and re-adjudicate the claim on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ L. HOWELL 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) (2013).