Citation Nr: 1333243 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 12-00 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) (claimed as a breathing problem). 2. Entitlement to an initial rating in excess of 10 percent for planter warts/callus, bilateral feet (claimed as a bilateral feet condition). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1973. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. 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 A review of the record discloses that additional development is necessary prior to further appellate review. Although further delay is regrettable, the Board finds that the record is currently inadequate for the purpose of rendering a fully informed decision as to the Veteran's claim. Where the record before the Board is inadequate to render a fully informed decision, a remand is required in order to fulfill VA's statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Chronic obstructive pulmonary disease (COPD) claim The Veteran contends that he has chronic respiratory that is due to his exposure to Agent Orange during service in Vietnam. He avers that he never had any respiratory problems prior to service, but he that developed breathing trouble after he returned from Vietnam. See Statement dated December 2011. The Veteran's service treatment records (STRs) do not reveal treatment for any lung disability in service. His separation examination, dated in January 1973, indicates that the Veteran's lungs and chest were normal. After service, the Veteran was diagnosed with COPD and has been using inhalers, as evidence by numerous treatment record entries since September 2007. The Veteran was also noted to have smoked for approximately 50 years. Social Security records indicate that the Veteran's COPD disability began in December 2009. The Veteran served in the Republic of Vietnam during the Vietnam Era, and thus is presumed to have been exposed to an herbicide agent during service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Here, the Board notes that certain disorders associated with herbicide agent (Agent Orange) exposure in service are presumed to be service connected if they are manifested to a compensable degree within a specified time period. 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service. These conditions, however, do not include COPD. 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202. Therefore, service connection for the Veteran's lung condition is not available based on presumed exposure to Agent Orange as noted above. The Veteran, however, is not precluded from establishing service connection by evidence of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, for service connection to be awarded, the Veteran must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that VA has not provided the Veteran a compensation and pension (C & P) examination to determine the etiology of his COPD. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines that it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See id.; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). The Veteran asserts that he has been experiencing breathing problems since serving in Vietnam. He is competent to make such assertions. As such, the Veteran shall be afforded a VA examination in connection with his claim. The examiner should review the Veteran's service treatment records, post-service medical records, and the Veteran's the lay statements in connection with the claim. The examiner should then determine whether the Veteran's current COPD or any other lung conditions had their onset in service or are otherwise related to his military service, to include exposure to Agent Orange in service. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Planter warts/callus, bilateral feet condition claim The Veteran underwent a C &P examination of his feet in February 2011. In March 2011, the Veteran was granted service connection for planter warts/callus, bilateral feet (claimed as a bilateral feet condition) with a 0 percent rating, effective April 26, 2010. The Veteran perfected his appeal in December 2011. The Board notes that the VA examination, on which the 0 percent rating was based, is now nearly three years old. The duty to assist does not require that a claim be remanded solely because of the passage of time if an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, however, Veteran asserts that the condition has worsened, that its symptoms are now more severe than what was noted on the VA examination, and that the VA examination does not reflect the current state of the condition. See Statements dated December 2011 and March 2013. Viewing the Veteran's statements in their most favorable light, there is a reasonable possibility that the condition has increased in severity in the nearly three years since the Veteran's feet were last examined. Therefore, the Board finds that a VA examination shall be conducted to identify the current state of these disorders. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect). VAOPGCPREC 11-95, 60 Fed. Reg. 43186 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran is hereby notified that it is the Veteran's responsibility to report for any scheduled examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Finally, the claims file reflects that the Veteran has received VA treatment through the Kansas City VA healthcare system. The claims file only includes treatment records from that provider dated up to March 2011. Any additional records from that facility should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records as well as contact the Veteran with respect to any private treatment records pertaining to his respiratory or foot disorders. Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the claims file, who treated him since service for his COPD and other respiratory disorder. A similar inquiry should be made with respect to his service connected foot disability. Regardless as to whether or not he responds obtain the Veteran's clinical records from the Kansas City VA Medical Center from March 2011 to the present. 2. The RO shall arrange for an appropriate VA examination to determine whether the Veteran has a respiratory that is related to military service. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must reflect that this has been accomplished. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should then provide answers to the following: (a) Identify and diagnose each disability of the respiratory system that has existed since the onset of the appeal. If no disability exists, such should be stated along with accompanied rationale. (b) For each respiratory disorder diagnosed, to include COPD, the examiner shall provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that disorder(s) had their onset during active duty or is otherwise shown to be related to the Veteran's military service. The examiner should specifically indicate whether such diagnosed disorder is etiologically related to the Veteran's exposure to herbicides in service. In offering any opinion, the VA examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorder and experiencing chronic breathing problems since service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The RO shall arrange for an appropriate VA podiatry examination to evaluate his service-connected bilateral foot condition. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must reflect that this has been accomplished. All pertinent symptomatology and findings must be reported in detail. After reviewing the Veteran's claims file and examining the Veteran, the examiner shall provide a thorough examination report of the Veteran's bilateral foot condition. The examiner shall indicate whether the Veteran's bilateral plantar warts/calluses of the feet are mild, moderate, moderately severe, or severe. The examiner shall also indicate whether the bilateral foot condition results in a loss of use of foot. The examiner shall specify any anatomical damage, and describe any functional loss, including the inability to perform normal working movements with normal excursion, strength, speed, coordination, and endurance. The examiner shall specify any functional loss due to pain or weakness, if possible measured in degrees of limitation of motion, and document all objective evidence of those symptoms. In addition, the examiner shall provide an opinion as to the degree of any functional loss likely to result from a flare-up of symptoms or on extended use. The examiner shall document, to the extent possible, the frequency and duration of exacerbations of symptoms. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claim shall be readjudicated based on the entirety of the evidence. If the determination remains unfavorable to the Veteran, issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran 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). _________________________________________________ MICHAEL A. HERMAN 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).