Citation Nr: 1417643 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 10-34 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease. 2. Entitlement to disability rating in excess of 10 percent for hypertension. 3. Entitlement to disability rating in excess of 20 percent for lumbar strain. 4. Entitlement to service connection for a psychiatric disorder, to include anxiety disorder. REPRESENTATION Appellant represented by: Jan Dils, Attorney ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of entitlement to service connection for tinnitus is raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2013). REMAND The issue of entitlement to service connection for a respiratory disorder, diagnosed as chronic obstructive pulmonary disease, is on appeal from a September 2009 RO rating decision. The Veteran subsequently claimed that his respiratory disorder was the result of "gulf war syndrome;" he also asserted that he had mesothelioma. The July 2013 letter from the RO informing the Veteran that the September 2009 decision is final is wrong. Based on the Veteran's assertions the Board has recharacterized the Veteran's claim for entitlement to service connection for a respiratory disorder more generally. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The record reflects that the Veteran is diagnosed with chronic obstructive pulmonary disease (COPD); he does not have mesothelioma or any other respiratory cancer based upon the medical evidence currently of record. The Veteran has not been afforded a VA examination with respect to his claim for service connection for COPD, and the medical opinion obtained in December 2013 is inadequate as it does not address the Veteran's contentions of asbestos exposure during service. Because, the Veteran retired after serving 20 years in the Navy with a significant amount of service aboard ships, these contentions must be addressed. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). An April 2012 rating decision, in part, denied increased ratings for service-connected hypertension and lumbar strain. In January 2013, the Veteran's attorney filed a notice of disagreement with this rating decision. A December 2013 rating decision, in part, denied service connection for an anxiety disorder. In January 2014, the Veteran's attorney filed a notice of disagreement with this rating decision. Remand is required to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (holding that, where notice of disagreement is filed with claim and no statement of the case has been issued, Board should remand, not refer, that issue to the RO to issue statement of the case). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for service connection for COPD. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of his response, the RO must attempt to obtain all pertinent VA records not already of record. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examination to determine whether any respiratory disorder found is related to his military service. All pertinent symptomatology of shortness of breath and chest pains and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, his history of Navy service aboard ships, and the documented history of smoking, the examiner indicate the following: * Does the Veteran have any current respiratory disorder manifested by shortness of breath and chest pain, and if so what is the current diagnosis. * Whether any currently diagnosed respiratory disorder is related to the Veteran's active duty service, to include his claimed asbestos exposure. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained and associated with the evidence of record that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the evidence of record demonstrating any notice that was sent was returned as undeliverable. 4. The medical examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, corrective procedures must be implemented. 5. The RO must issue a statement of the case and notification of the Veteran's appellate rights on the issues of entitlement to disability rating in excess of 10 percent for hypertension; entitlement to disability rating in excess of 20 percent for lumbar strain; and, entitlement to service connection for a psychiatric disorder, diagnosed as anxiety disorder. The Veteran and his attorney are reminded that to vest the Board with jurisdiction over these issues, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2013). If the Veteran perfects the appeal as to these issues, they must be returned to the Board for appellate review 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim for service connection for a respiratory disorder on appeal must be readjudicated. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).