Citation Nr: 1332633 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 13-03 373A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disorder, to include as sarcoidosis, to include as due to Agent Orange. ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1965 to August 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for sarcoidosis. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In this case, the Veteran essentially contends that he has sarcoidosis due to exposure to Agent Orange during service in Vietnam as the commander of a river patrol boat. The record reflects that he was diagnosed with sarcoidosis in 1977 after a thoracotomy and X-rays. His DD-214 shows that he received the Combat Action Ribbon, Bronze Star Medal, and Vietnam service awards. Vietnam service is verified and Agent Orange exposure is conceded. Presumption of service connection cannot be given under the Agent Orange Act of 1991 because sarcoidosis is not one of the diseases subject to the presumption; however service connection can still be established if there is a nexus shown between the service, to include the conceded Agent Orange exposure, and the sarcoidosis. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. 309(e) (2013). Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran contends that it cannot be ruled out that he had sarcoidosis in service because the Navy did not give him a chest X-ray at the time of discharge. His service treatment records show treatment for hay fever symptoms, as well as a prescription for a two week treatment of urticaria, or hives, in February 1969. He contends that he had a cough during the early 1970's after service that "plagued" him, but did not consider it to be significant and ignored his symptoms until 1977 when he had his thoracotomy and X-rays, which diagnosed the disease. He also submitted an email from his original diagnosing physician, Dr. Sharma, where in response to the Veteran's inquiry whether he could tell how long he might have had sarcoidosis before his X-ray in 1977, Dr. Sharma stated "[n]o it is difficult because sarcoidosis can stay without causing symptoms for many years." In April 2010, the Veteran was afforded an examination. In noting a diagnosis of sarcoidosis, the examiner discussed the Veteran's medical history and current treatment. The examiner, however, failed to give a nexus opinion as to whether the Veteran's sarcoidosis was as likely as not due to service, to include as due to Agent Orange. Additionally, the examiner did not review the claims file. Therefore, the Board finds that another opinion is necessary to determine the etiology of the Veteran's sarcoidosis. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his sarcoidosis. The claims folder must be provided to and reviewed by the examiner and the examination must reflect that such a review was undertaken. All indicated tests and studies should be performed, and all findings should be set forth in detail. Specifically, the examiner must offer an opinion as to whether it is as likely as not (a 50 percent probability or greater) that the Veteran's sarcoidosis is etiologically related to service, specifically to include exposure to Agent Orange. All findings must be reported in detail and all indicated testing must be accomplished. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. In doing so, the examiner should specifically address: a. The Veteran's lay statements that he had a persistent cough in the early 1970's. b. The Veteran's exposure to Agent Orange during service. c. Any possible manifestations in-service, to include service treatment record notations of hives in February 1969. d. Any times the Veteran had respiratory issues that presented in the service treatment records. e. Dr. Sharma's email stating that sarcoidosis can be present for many years without causing symptoms. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). In rendering the above opinions, the examiner should consider that the absence of in-service evidence of disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 2. Readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ MICHAEL A. PAPPAS 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).