Citation Nr: 1335755 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-17 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a pulmonary disorder, to include asthma. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran; the Veteran's mother ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from June 1979 to February 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2013, the Veteran and the Veteran's mother testified before the undersigned Veterans Law Judge at a hearing conducted at the RO (Travel Board hearing). A copy of the hearing transcript has been associated with the claims file. Throughout the pendency of this appeal, the Veteran's claim has been adjudicated as one of service connection for asthma; however, during the pendency of this appeal, VA examiners have diagnosed the Veteran as having other pulmonary disorders, to include bronchiectasis, emphysema, chronic pulmonary H. capsulatum disease, and chronic obstructive pulmonary disorder (COPD); therefore, the Board finds that the issue should be broadened and classified as one of service connection for a pulmonary disorder, to include asthma. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a health disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). 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 Veteran essentially claims that he should be service-connected for an asthma disorder. Reviewing the evidence of record, the Board notes that the Veteran's June 1979 service entrance examination report contains no notation indicating that the Veteran was diagnosed with any lung or chest disorder symptomatology. In a contemporaneous report of his own medical history at service entrance, the Veteran specifically denied having asthma. In a subsequent service treatment record, written three days after the Veteran's entry into service, a service examiner noted treating the Veteran for asthma symptomatology. At the time, the Veteran indicated that he was diagnosed as having asthma since he was five-years-old. Subsequent service treatment records contain notations indicating treatment for asthma which the Veteran indicated pre-existed his entry into service. In an undated Medical Board Report, an examiner noted that the Veteran had asthma which had existed prior to his entry into service and had not been aggravated by his time in service. The examiner recommended that the Veteran be discharged from service as he did not meet the basic requirements for service. The service personnel records indicate that the Veteran was discharged from service in February 1980. The Veteran filed for service connection for asthma in April 2009. In an August 2009 VA medical examination report, the Veteran indicated that he was diagnosed with asthma when he was five, but "outgrew it as a teenager." The Veteran stated that he began having symptoms again during service. Upon examination, the VA examiner noted finding no significant bronchodilator response and indicated that diffusion was within normal limits. The VA examiner diagnosed asthma and COPD. The VA examiner also noted that a CT scan of the Veteran's lung indicated findings consistent with emphysema. Additional post-service treatment records indicate fairly recent treatment for many pulmonary disorders, to include bronchiectasis, emphysema, and chronic pulmonary H. capsulatum disease. At a March 2013 Travel Board hearing, the Veteran's mother testified that the Veteran was diagnosed with asthma when he was two-years-old. The Board finds that an examination is necessary to determine the nature and etiology of any currently diagnosed pulmonary disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding records of VA and private treatment for the claimed disorder. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. Insure that the Veteran is provided with the necessary authorization and release forms to procure any outstanding private treatment records. At a minimum, procure any VA treatment records dated since March 2010, the date of the last treatment record on file. 2. After the completion of the above, schedule the Veteran for a VA medical examination, to be performed by a qualified examiner, to assist in ascertaining the nature and etiology of the claimed pulmonary disorder. The relevant evidence from the claims folder should be provided to the VA examiner and should be reviewed by the VA examiner in connection with the examination. In reviewing the claims file, the VA examiner should note any treatment records indicating treatment for a pulmonary disorder, to include the service treatment records and the August 2009 VA medical examination report. After an interview of the Veteran, a physical examination, and all tests and studies required, the VA examiner should list all pulmonary disorder diagnoses and offer the following opinions: a. The examiner should state whether the evidence clearly and unmistakably establishes that a current pulmonary disorder, to potentially include asthma, preexisted service, and if so, whether it clearly and unmistakably was not aggravated by service. The examiner is instructed that to find that the disability in question clearly and unmistakably preexisted service and was not aggravated by service, the evidence must be obvious, manifest, and undebatable in establishing that it preexisted service and that it was not aggravated by service. b. For any currently diagnosed pulmonary disorder(s) that did not clearly and unmistakably preexist the Veteran's period of active service, is it at least as likely as not that the disorder(s) had its/their onset during service or is/are otherwise related to service or an incident of service? The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. A rationale must be provided for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinions with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons must be so stated. The VA examiner should in such case explain why it would be speculative to respond. 3. After completion of the foregoing and all other necessary development, re-adjudicate the claim for service connection for a pulmonary disorder. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case, and should 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 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). _________________________________________________ JOHN Z. JONES 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).