Citation Nr: 1338749 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-32 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to May 1991, with a prior period of active duty for training (ACDUTRA) from February 1982 to June 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Veteran appeared and provided testimony before the undersigned acting Veterans Law Judge. A transcript of that hearing is associated with the claims file. The Board notes that this matter was previously before the Board in November 2011, at which time it was remanded for further development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. 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 The Board finds that additional development is needed before the issue on appeal is decided. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2011, the Board remanded the Veteran's claim to obtain a VA examination and an opinion as to whether the Veteran had a currently diagnosed respiratory disability; and, if so, whether such a disability either began during or was otherwise caused by the Veteran's active military service in the Persian Gulf region. The examiner was specifically asked to address the relevance, if any, of the Veteran's documented treatment for bronchopneumonia during active service. At a VA examination in December 2011, the examiner diagnosed the Veteran with chronic rhinosinusitis with a retention cyst; there was also some suggestion of chronic bronchitis by x-ray. The examiner explained that there was no treatment for rhinosinusitis in the service treatment records, but did not explain whether rhinosinusitis was otherwise attributable to the Veteran's military service, or whether it was in any way related to the pneumonia the Veteran experienced in service. Additionally, the Veteran has asserted, both in written statements and orally at his May 2011 Board hearing, that his current respiratory symptoms are the same as the symptoms that he experienced during active service. Unfortunately, it is unclear whether the examiner considered these assertions. The examiner also did not discuss the relevance, if any, of the private treatment records from 2005 to 2007 showing that the Veteran consistently complained of recurrent sinus and allergy problems. These records also show findings of scattered rhonchi in the Veterans large airways. Further, a July 2005 private treatment record shows that the Veteran experienced acute bronchial pneumonia, as well as a severe sinus infection. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the December 2011 VA examination, or if he is not available, to another examiner. A complete rationale should be provided for any opinions expressed. If the Board's questions cannot be answered without a physical examination, one should be scheduled. The examiner should again review the record and then opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran's rhinosinusitis either began during or was otherwise caused by the Veteran's military service, to include as a residual result of the episode of bronchopneumonia pneumonia the Veteran had in service in February 1991. In so doing, the examiner should review and comment on the Veteran's assertion that his current respiratory symptoms are the same as the symptoms that he experienced during active service The examiner should also address the fact that the Veteran experienced acute bronchial pneumonia in 2005, and indicate whether this second occurrence of pneumonia was related to his in-service pneumonia such that it would constitute a chronic respiratory disability. 2. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. _________________________________________________ MATTHEW W. BLACKWELDER Acting 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).