Citation Nr: 1510640 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 12-16 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to additional compensation at an increased rate for dependent children, R. P., I. P., X. P., Z. P., and A. P. 2. Entitlement to service connection for a pulmonary disorder. 3. Entitlement to service connection for a bilateral eye disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had military service in the United States Marine Corps from January 1975 to January 1978. The appeal comes before the Board of Veterans' Appeals (Board) from October 2010 and October 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. By an October 2010 rating action, the RO, in part, denied service connection for pulmonary and eye disorders. This appeal also stems from an October 2011 rating action. By that rating action, the RO denied the Veteran's claim of entitlement to additional compensation at an increased rate for dependent children, R. P., I. P., X. P., Z. P., and A. P. The Veteran appealed both of the above-cited rating actions to the Board. In August 2013, the Veteran testified before the undersigned at a video conference hearing conducted via the San Antonio, Texas, Satellite Office. A copy of the hearing transcript has been uploaded to the Veteran's Virtual VA electronic claims file. At the hearing, the Veteran submitted private treatment records (reports, prepared by Methodist Hospital, dated from December 2012 to June 2013) in support of his claim for service connection for a pulmonary disability, along with a waiver of initial RO consideration of this evidence. Thus, a remand to have the RO initially consider this evidence in a Supplemental Statement of the Case (SSOC) is not required. 38 C.F.R. § 201.1304 (2014). A remand is required, however, for this claim, as well as the claim for service connection for a bilateral eye disorder, for reasons that are outlined in the directives below. The issue of entitlement to an earlier effective date for dependency allowance for the Veteran's spouse has been raised by the Veteran and his representative in October 2013 statements to VA, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issues of entitlement to service connection for pulmonary and eyes disorders are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the appellant if additional action is required on his part. FINDING OF FACT At his August 2013 hearing, the Veteran withdrew his claim of entitlement to additional compensation at an increased rate for dependent children, R. P., I. P., X. P., Z. P., and A. P. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the claim for additional compensation at an increased rate for dependent children, R. P., I. P., X. P., Z. P., and A. P., are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION At his August 2013 Board hearing, the Veteran withdrew his appeal for the claim of entitlement to additional compensation at an increased rate for dependent children, R. P., I. P., X. P., Z. P., and A. P. As the Veteran withdrew his appeal with respect to this issue during his hearing before the Board, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to this claim, and it is dismissed. 38 U.S.C.A. § 7105 (West 2014). ORDER The claim of entitlement to additional compensation at an increased rate for dependent children, R. P., I. P., X. P., Z. P., and A. P., is dismissed. REMAND The Board finds that prior to further appellate review of the service connection claims, they must be remanded for additional substantive development; specifically, to obtain outstanding private treatment records surrounding the Veteran's treatment for his pulmonary disorder and to schedule him for VA examinations by appropriate medical personnel to determine the etiology of his current lung and eye disorders. i) Private Treatment Records In a July 2001 report, C. Z., M. D., indicated that the Veteran was under her care for his underlying symptoms of dyspnea and abnormal chest x-ray. The RO has not attempted to obtain all treatment records from Dr. C. Z. In addition, the Veteran also testified that he had sought treatment from a Dr. R. J. for his lung disability. (Transcript (T.) at page (pg.) 10)) As these private treatment records might contain probative information regarding the etiology of the Veteran's pulmonary disorder, efforts to retrieve them are also required. 38 C.F.R. § 3.159(c)(1) (2014). ii) VA examinations The Veteran seeks service connection for pulmonary and eye disorders. He contends that his pulmonary disorder is the result of having been exposed to daily hazardous chemical and fumes from lead, sulfuric acid batteries and electrolyte batteries from having served as a radiotelephone operator during military service. He maintains that during his service separation examination, he was told that he had black spots on his lungs, so he signed a waiver in order to allow him to be discharged. The Veteran avers that post-service treatment records from his 1978 hospitalization for pneumonia at a private hospital in San Antonio, Texas, are no longer available. (T. at pages (pgs.) 5-7)). The Veteran denied any post-service exposure to hazardous chemicals, claiming that he worked in administrative government positions. (T. at pg. 8). Regarding his eye disorder, the Veteran claims that it is the result of an in-service battery explosion that left residue in his eyes and shrapnel in his hands. (Id. at pg. 9). In support of his claims, he submitted internet articles discussing the hazards and dangers of lead/acid, spent rechargeable and nickel-cadmium batteries, as well as zinc chloride, which included, but were not limited to, lung damage and chronic eye irritations. (See VA Form 21-4138, Statement in Support of Claim with attached internet articles, received by the RO in August 2010). The Veteran's service treatment records are devoid of any subjective complaints or clinical findings of any lung or ocular pathology or battery explosion involving the eyes and/or hands. X-ray interpretations of the Veteran's chest, dated in January 1975, revealed no evidence of any defects. A January 1978 service separation examination report reflects that the Veteran's chest was evaluated as "normal." X-ray interpretations of the Veteran's chest were within normal limits. The Veteran had 20/20 distant vision, bilaterally. Post-service VA and private treatment reports, dated from 2001 to 2013, disclose that the Veteran had an abnormal chest x-ray and dyspnea, the etiology of which were noted to have been unclear in July 2001. (See July 2001 report, prepared by C. Z., M. D.. A September 2001 report, prepared by M. R., M. D., reflects that the Veteran was diagnosed with pulmonary fibrosis. Because of his lung disability, Drs. C. Z. and M. R. recommended that the Veteran avoid his regular position in "field testing" of various products and suggested that he seek employment in an office environment. (See July and September 2001 reports, prepared by C. Z., M. D. and M. R., M. D., respectively). A November 2010 report, prepared by Y. D., O. D., reflects that he Veteran had been diagnosed as having corneal scarring of both eyes and presbyopia. (See November 2010 report, prepared by Y. D., O. D.). A November 2012 VA treatment report reflects that the Veteran was a laborer. He was diagnosed with, in part, pulmonary fibrosis. In December 2012, the Veteran underwent a left single lung transplant. (See reports, prepared by Methodist Hospital, dated from December 2012 to June 2013). Thus, in view of the Veteran's assertions of having had lung and eye problems since having been exposed to hazardous fumes and materials, to include an explosion while working in a battery shop during military service, post-service treatment for pulmonary fibrosis and coronary scarring of the eyes, and internet articles discussing the hazardous dangers of exposure to various batteries, which included lung damage and chronic eye irritations, the Board finds the Veteran should be afforded VA examinations and nexus opinions to address the etiology of his pulmonary and eye disorders that includes consideration of the documentation contained in the claims folder, as well as his Virtual VA electronic claims file. 38 C.F.R. § 3.159(c)(4) (2014) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. After securing all necessary release forms from the Veteran, the AOJ must contact C. Z., M. D., San Antonio Texas, and Dr. R. J., referenced by the Veteran during his August 2013 hearing, and request all treatment records of the Veteran. All records received must be included in the Veteran's electronic or paper claims file. If the search for such records has negative results, documentation to that effect should be added to the claims file. 2. After any additional records have been obtained and associated with the record pursuant to the development in directive one (1), schedule the Veteran for VA pulmonary and eye examinations by appropriate examiners. The purpose of the examinations is to determine the etiology of any currently diagnosed pulmonary and eye disorder found on examination. The following considerations will govern each examination: a) The claims file, paper and electronic, must be made available to and thoroughly reviewed by each examiner in connection with his or her respective examination, and the examiners must acknowledge such receipt and review in any report generated as a result of his or her examination. b) The examiners must review the Veteran's statements, hearing testimony, and service and post-service treatment records in conjunction with their respective examination. Any special diagnostic studies deemed necessary should be performed. c) Each examiner should identify all current pulmonary and eye disorders (i.e., diagnoses since the Veteran filed his claim in April 2010). d) For each pulmonary and eye disorder found on examination, the respective examiner must answer the following: Is it at least as likely as not (a 50 percent or greater probability) that the lung or eye disorder developed in service, or is otherwise causally or etiologically related to service, to include the Veteran's assertions of having been exposed to daily hazardous materials and fumes from various types of batteries, to include an explosion while working in a battery shop during military service? A complete rationale must be provided for all opinions expressed. If an examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Then, the RO should readjudicate the claims for service connection for pulmonary and eye disorders on appeal. If the desired benefits are not granted, a supplemental statement of the case should be furnished to the Veteran and his representative that addresses all the evidence receive since issuance of an April 2012 Statement of the Case. The case should then be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs