Citation Nr: 1427675 Decision Date: 06/18/14 Archive Date: 06/26/14 DOCKET NO. 10-06 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a bilateral eye disability, to include bilateral posterior uveitis / chorioretinopathy involving the macula and periphery and cancer associated retinopathy (CAR). 2. Entitlement to service connection for a lung disability, to include asthma and sarcomatoid carcinoma of the left lung and any associated residuals, to include as being due to undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to March 1980, from April 1982 to August 1982, from November 1990 to June 1991, from January 2004 to May 2005, and from October 2005 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2011, the Veteran and his wife presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran's claims were remanded by the Board for additional development in July 2012. The matter again is before the Board. Initially, the Board notes that the September 2012 VA respiratory examination, discussed in greater detail below, diagnosed the Veteran with asthma. In light of the foregoing and the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled, the lung disorder claim has been categorized as listed above. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims processing systems to ensure a total review of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for a bilateral eye disability and a lung disability. Despite the extensive development already undertaken, the Board concludes that a remand is required for additional development. VA has an obligation to associate all relevant records with the claims file of a veteran, and a heightened duty when it comes to obtaining records in the possession of another Federal Agency. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). VA treatment records associated with the claims file since the time of the last Board remand, specifically from February 2012, indicate that the Veteran is receipt of disability benefits from the Social Security Administration (SSA). Where there is actual notice to VA that the Veteran is receiving disability benefits from the SSA, VA has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon where the identified records have a reasonable possibility of assisting in substantiation of the Veteran's claims. Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010). As such, a remand is required to afford the RO/AMC the opportunity to seek these records. Lung Disability In addition and with specific reference to the Veteran's lung disability, the Veteran was afforded a VA respiratory examination in September 2012. Unfortunately, the examination report's findings appear to have been based on inaccurate facts. Specifically, the examiner indicated that the Veteran had smoked for 48 years, which would have placed the onset of smoking at age 6. Moreover, the examination report stated that dyspnea was not shown in the records from the Veteran's service from January 2004 through May 2005. By contrast, shortly after the Veteran's return to active service in January 2004, the Veteran reported persistent nagging left anterior chest wall constant dull pressure and pain just below the thoracotomy site. His collateral symptoms included some difficulty sleeping with moderate drowsiness and mild fatigue, moderate shortness of breath, occasional mild difficulty thinking clearly, and mild depression and anxiety. His overall feeling of well-being also was modestly compromised. A trial of nortriptyline was prescribed in the hopes of addressing any neuropathic aspects of the Veteran's pain profile, and possible improvement in sleep patterns from the sedating side effects of the medication. An August 2004 private medical record shows that the Veteran reported chest wall pain and shortness of breath. The Veteran indicated he had stopped smoking one and one-half years ago. The examiner noted the Veteran had decreased breath sounds on the left and dullness to percussion on the left. The examiner diagnosed pain problems, status post thoracotomy. A December 2004 private record documented persistent, nagging, and aching pressure / pain in the left anterior chest wall, along the inferior extent of the thoracotomy site. Collateral symptoms included mild fatigue, drowsiness, mild depression and anxiety, occasional insomnia, mild exertional dyspnea, mild anorexia, and mildly compromised feeling of well-being. The assessment was chronic post-thoracotomy pain that remained effectively managed by the prescribed pain medication and anti-depressant regimen. In light of the foregoing, the Board concludes that another VA examination is warranted. Eye Disability As to the Veteran's claimed eye disability, at the time of the July 2012 Board remand, the eye disability was noted to include diagnoses of chorioretinopathy, cancer associated retinopathy (CAR), and bilateral cataracts. Based on a September 2012 VA examination report and January 2013 VA medical opinion, in a February 2013 rating decision the Appeals Management Center (AMC) granted entitlement to service connection for postoperative bilateral cataracts. In the body of the decision, the AMC indicated that the decision represented a total grant of benefits sought on appeal for this issue. To the extent that the foregoing statement might be correct as to the issue of entitlement to service connection for bilateral cataracts, the February 2013 rating decision and contemporaneous February 2013 supplemental statement of the case (SSOC) failed to adjudicate entitlement to service connection for the other bilateral eye disabilities on appeal, to include bilateral posterior uveitis / chorioretinopathy involving the macula and periphery and CAR. Such a failure is particularly significant, given that the February 2013 rating decision denied entitlement to an initial rating for the cataracts greater than 30 percent, in part, because the Veteran's noted visual impairment was not due to a service-connected condition. The Board observes that the September 2012 VA examination report and January 2013 VA medical opinion specifically opined that the Veteran's visual acuity problems were due solely to his end-stage birdshot chorioretinopathy, that is, one of the other bilateral eye disabilities on appeal. As such, the issue of entitlement to service connection for a bilateral eye disability (other than as to the postoperative bilateral cataracts) must be readjudicated following the above development. Accordingly, the case is REMANDED for the following action: 1. Request all available records concerning the Veteran from SSA. All records obtained or any response received should be associated with the claims file. If these records are unavailable, this should be noted and explained in the claims file, with appropriate notice provided to the Veteran. 2. Schedule the Veteran for a VA respiratory examination. The claims file must be provided to the examiner in conjunction with the examination and the examiner must note that it has been reviewed. The below facts were included in the prior July 2012 Board remand and remain relevant to the matter on appeal: * The Veteran served on active duty on these dates: (i) from November 1979 to March 1980; (ii) from November 1990 to June 1991; (iii) from January 2004 to May 2005; and (iv) from October 2005 to February 2006. * The service treatment records and other medical records are in white envelopes that are inside the claims file. The records have been placed in chronological order and labeled according to dates. * An October 1979 Report of Medical Examination shows that clinical evaluation of the lungs and chest was normal. * In a Report of Medical History completed by the Veteran in October 1979, he denied a medical history of asthma, shortness of breath, pain or pressure in chest, or chronic cough. * A January 1982 Report of Medical Examination shows that clinical evaluation of the lung and chest was normal. * In a Report of Medical History completed by the Veteran in January 1982, he denied a medical history of asthma, shortness of breath, pain or pressure in chest, or chronic cough. * A March 1986 Report of Medical Examination shows that clinical evaluation of the lungs and chest was normal. * A February 1990 Report of Medical Examination shows that clinical evaluation of the lungs and chest was normal. * In a Report of Medical History completed by the Veteran in February 1990, he denied a medical history of asthma, shortness of breath, pain or pressure in chest, or chronic cough. * An April 1991 Report of Medical Examination shows that clinical evaluation of the lungs and chest was normal. * In a Report of Medical History completed by the Veteran in April 1991, he denied a medical history of asthma, shortness of breath, pain or pressure in chest, or chronic cough. * An April 1991 "Chronological Record of Medical Care" shows the Veteran checked "No" to the question, "Do you have a cough or sinus infection?" * There is another document with the title, "Chronological Record of Medical Care," that provides a list of "potential disease threats associated with Operations Desert Shield/Desert Storm." * A March 1996 Report of Medical Examination shows that clinical evaluation of the lungs and chest was normal. The Veteran reported he smoked cigarettes, which he stated was one and one-half packs per day for 20 years. * In a Report of Medical History completed by the Veteran in March 1996, he denied a medical history of asthma, shortness of breath, pain or pressure in chest, or chronic cough. He noted his usual occupation was a supervisor at a furniture factory. * An April 1997 medical record shows the Veteran was seen with complaints of nasal congestion, cough with reclining, and other symptoms. He was diagnosed with probable ethmoid sinusitis. * A May 1998 Report of Medical Examination shows that clinical evaluation of the lungs and chest was normal. The Veteran reported cigarette use, cigar use, and pipe use. * In a Report of Medical History completed by the Veteran in May 1998, he denied a medical history of asthma, shortness of breath, pain or pressure in chest, or chronic cough. * A February 2003 Report of Medical Examination shows that clinical evaluation of the lungs and chest was normal. The Veteran reported cigarette use but denied cigar and pipe use. * In a Report of Medical History completed by the Veteran in February 2003, he denied a medical history of having coughed up blood; asthma or other breathing problems related to exercise, weather, pollens, etc.; bronchitis; wheezing or problems with wheezing; been prescribed or used an inhaler; or a chronic cough or cough at night. * A March 2003 letter from Dr. Katherine Pisters shows that the Veteran had been diagnosed with non-small cell lung cancer. * There are March 2003 and May 2003 pulmonary function tests from the University of Texas revealing moderate airflow obstruction. * Records indicate that the Veteran was diagnosed with squamous cell carcinoma of the left upper lobe in January or February 2003. * In a February 2003, record, the Veteran reported he had smoked approximately two packs per day from when he was 17 years old (he was 44 years old at that time) to the present time. He reported reducing his smoking but was still smoking. The Veteran also reported previous chemical exposures due to this work with wood finishing paints and thinners and being exposed to oil well fires while serving in the Persian Gulf. * In June 2003, the Veteran underwent a left intrapericardial pneumonectomy. * In January 2004, he reported persistent nagging left anterior chest wall constant dull pressure and pain just below the thoracotomy site. His collateral symptoms included some difficulty sleeping with moderate drowsiness and mild fatigue, moderate shortness of breath, occasional mild difficulty thinking clearly, and mild depression and anxiety. His overall feeling of well-being also was modestly compromised. * An August 2004 private medical record shows that the Veteran reported chest wall pain and shortness of breath. The Veteran reported he had stopped smoking one and one-half years ago. The examiner noted the Veteran had decreased breath sounds on the left and dullness to percussion on the left. The examiner diagnosed pain problems, status post thoracotomy. * A December 2004 private record documented persistent, nagging, and aching pressure / pain in the left anterior chest wall, along the inferior extent of the thoracotomy site. Collateral symptoms included mild fatigue, drowsiness, mild depression and anxiety, occasional insomnia, mild exertional dyspnea, mild anorexia, and mildly compromised feeling of well-being. * In a March 2009 statement, the Veteran wrote that the doctor who performed the lobectomy in June 2003 had told him that his smoking was not the cause of his cancer. He reported that his wife smoked and he was currently exposed to second-hand smoke and that he "continued to smoke." However, he wrote he felt that the environmental exposures from service, such as oil well fires and smoke, the dusty environmental conditions, the stocks of enemy ammunitions that were destroyed near his vicinity, and the nerve agent pre-treatment tablets, had been the cause of his lung cancer. * A VA Training Letter (10-01), dated February 2010, shows a list of possible environmental hazards that veterans in the Persian Gulf experienced during service. In the letter, VA writes the following, in part: The environmental hazards may have included: exposure to smoke and particles from oil well fires; exposure to pesticides and insecticides; exposure to indigenous infectious diseases; exposure to solvent and fuel fumes; ingestion of pyridostigmine bromide tablets, as a nerve gas antidote; the combined effect of multiple vaccines administered upon deployment; and inhalation of ultra fine-grain sand particles. In addition, there may have been exposure to smoke and particles from military installation "burn pit" fires that incinerated a wide range of toxic waste materials. * As discussed above, the Veteran was afforded a VA respiratory examination in September 2012. The resulting report relied on inaccurate facts in reaching its conclusions, including the length of time that the Veteran had been smoking and the absence of reports of shortness of breath during certain periods of service. Following review of the claims file, the above facts, conducting an interview of the Veteran, examination of the Veteran, and conducting any additional development deemed necessary, the examiner is asked to express an opinion on each of the following questions: (i) Is it at least as likely as not (50 percent probability or higher) that sarcomatoid carcinoma of the left lung was incurred during the Veteran's first period of service from November 1979 to March 1980? Please state upon what facts and medical principles the opinion is based. (ii) Is it at least as likely as not (50 percent probability or higher) that sarcomatoid carcinoma of the left lung was incurred during the Veteran's second period of service from November 1990 to June 1991 or is otherwise due to that period of service? The examiner should consider the environmental hazards described above in answering this question. Please state upon what facts and medical principles the opinion is based. (iii) The Board finds as fact that by the time the Veteran entered his third period of service in January 2004, he already had sarcomatoid carcinoma of the left lung. What residuals does the Veteran have from the cancer? The Board notes that as a result of surgery, the Veteran has a residual scar. Are there other residuals? (iv) Accepting the fact that lung cancer pre-existed service from January 2004 to May 2005, the examiner is asked to provide an opinion on whether it is at least as likely as not (i.e. 50 percent probability or higher) that the Veteran's preexisting lung cancer or residuals thereof permanently increased in severity during the period of service from January 2004 to May 2005. During this period of service, he complained of shortness of breath, as discussed above and in the body of this remand. Please state upon what facts and medical principles the opinion is based. (v) If the answer to (iv) is that the residuals of lung cancer did increase in severity during service from January 2004 to May 2005, is it clear and unmistakable (i.e., undebatable) that the increase in disability was due to the natural progress of the disease process? Please state upon what facts and medical principles the opinion is based. (vi) Is it clear and unmistakable (i.e. undebatable) that asthma or any other diagnosed respiratory disability preexisted one or more period of active military service? Please state upon what facts and medical principles the opinion is based. (vii) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that any pre-existing disease WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please state upon what facts and medical principles the opinion is based. (viii) Again, accepting that the sarcomatoid carcinoma of the left lung pre-existed service from October 2005 to February 2006, the examiner is asked to provide an opinion on whether it is at least as likely as not (i.e. 50 percent probability or higher) that the Veteran's pre-existing lung cancer or its residuals permanently increased in severity during the period of service from October 2005 to February 2006. Please state upon what facts and medical principles the opinion is based. (ix) If the answer to (viii) is that sarcomatoid carcinoma of the left lung did increase in severity during service from October 2005 to February 2006, is it clear and unmistakable (i.e., undebatable) that the increase in disability was due to the natural progress of the disease process? Please state upon what facts and medical principles the opinion is based. (x) Finally, if asthma or any other respiratory disorder did not pre-exist a period of active service, is it at least as likely as not (i.e. 50 percent probability or higher) that the Veteran's asthma or other current respiratory disability (other than sarcomatoid carcinoma) was otherwise incurred in or related to military service? This includes, but is not limited to, consideration of whether a respiratory disorder is related to service from November 1990 to June 1991including exposure to environmental hazards as described above. Please state upon what facts and medical principles the opinion is based. To reiterate, a complete rationale for each opinion offered must be included in the report, and an explanation of the medical principles involved would be of considerable assistance to the Board. 3. After the above is complete, readjudicate the Veteran's claims. If a complete grant as to the issues of entitlement to service connection for a respiratory disability, to include asthma and sarcomatoid carcinoma of the left lung, and a bilateral eye disability, to include bilateral posterior uveitis / chorioretinopathy involving the macula and periphery and cancer associated retinopathy (CAR), is not granted, the Veteran and his representative should be issued an SSOC and afforded appropriate time to respond to the SSOC before the claim is returned to the Board. 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. 2013). _________________________________________________ S. S. TOTH 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).