Citation Nr: 1332377 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 06-29 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a chronic lung disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the Veteran testified at a personal hearing held before the undersigned Veterans Law Judge. A copy of the transcript is of record. A July 2011 Board decision denied service connection for a chronic lung disorder. The Veteran thereafter appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court's October 2012 memorandum decision vacated the Board's July 2011 decision on the issue of service connection for a chronic lung disorder and remanded the claim to the Board for readjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Court's October 2012 memorandum decision remanded the claim for service connection for a chronic lung disorder in order to address and resolve factual discrepancies, to include the extent of the Veteran's smoking and the possible effects of such on his lung condition. In this regard, clarification is needed from C.C., an advanced practice registered nurse who rendered a March 2009 written medical opinion. Specifically, C.C. reported that the Veteran had recurring bronchitis since being a patient at the clinic for the past three years. The Veteran reported that he had pneumonia while on active duty and C.C. opined that the Veteran's "problem more than likely began with the pneumonia." C.C. further explained that "[w]hen a lung is infected with the pneumonia virus or bacteria, the infection destroys the alveoli walls and cilia. In its place, as the infection is eradicated, scar tissue forms. This greatly reduces the surface area for respiratory exchange. This may or may not be imaged on x-ray." The March 2009 medical opinion from C.C. did not discuss the extent of the Veteran's smoking and its possible effects on his lung condition. As such, clarification is needed. See Savage v. Shinseki, 24 Vet. App. 124 (2010) (Court held that, in some circumstances, VA has a duty to return for clarification unclear or insufficient examination reports even when they do not originate from VA medical personnel). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact C.C. who rendered the March 2009 medical opinion for purposes of clarifying the opinion relating the possible effects of smoking to the Veteran's lung condition. C.C. is asked to clarify the following: (a) Did the Veteran provide a past history of smoking during treatment at the clinic while under the care of C.C.? If so, please provide the extent of the Veteran's smoking. (b) Is at least as likely as not (i.e., there is a 50 percent or more probability) that any current chronic lung disorder had its onset during service or is otherwise related to active service. C.C. should specifically discuss the extent of the Veteran's smoking and its possible effects on his lung condition. A clearly-stated rationale would be helpful in resolving the claim. 2. After all development has been completed, the RO/AMC should readjudicate the issue of service connection for a chronic lung disorder. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ K. J. ALIBRANDO 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).