Citation Nr: 1601741 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 12-09 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and obstructive sleep apnea. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Air Force from January 1975 to December 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The November 2009 rating decision denied entitlement to service connection for sleep apnea, tinnitus, and bilateral hearing loss. The Veteran filed a timely notice of disagreement for all issues in September 2010. In a subsequent February 2012 Decision Review Officer (DRO) decision, the RO granted entitlement to service connection for tinnitus and bilateral hearing loss. These grants of service connection constitute a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board indicates that the Veteran did not initiate an appeal regarding the RO's initial ratings or effective dates. Thus, those matters are not in appellate status. In an October 2014 decision, the Board expanded the issue on appeal to encompass all respiratory disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board then remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. In a July 2015 decision, the Board remanded the claim once more to the AOJ. The case has since been returned to the Board for appellate review. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand is necessary to obtain an adequate VA medical opinion in compliance with the directives of the October 2014 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). The October 2014 Board remand directed the AOJ to obtain a VA medical opinion that addressed the Veteran's various diagnoses for a respiratory disorder, including mild granulomatous disease. As part of its instructions to the examiner, the Board requested that the examiner opine as to whether the mild granulomatous disease was related to his in-service treatment for right lower lobe pneumonia, nonbacterial; viral syndrome; sinusitis and left eye conjunctivitis; and left, early flu syndrome. The AOJ obtained a VA medical opinion in December 2014. The VA examiner found that it would be mere speculation to attempt to link the Veteran's asymptomatic findings with the Veteran's medical history during service. The examiner stated that the Veteran's mild granulomatous disease was an acquired condition. The examiner noted the Veteran's in-service treatment that the Board had highlighted in its remand instructions, but stated that no granulomatous pattern was seen until 2011. The examiner also observed that the Veteran would have been exposed to bacterial and fungal spores in his post-service employment as a plumber. The examiner additionally pointed to the lack of evidence for this disorder during service or for many years after service. In support of the opinion, the examiner also cited a May 2010 abstract from the Archives of Pathology & Laboratory Medicine entitled "Granulomatous Lung Disease: An Approach to the Differential Diagnosis." The conclusions from the abstract stated that most granulomas in the lung are caused by mycobacterial or fungal infections. Noninfectious causes of granulomas included aspiration pneumonia, hypersensitivity pneumonitis, hot tub lung, talc granulomatosis, sarcoidosis, and Wegner granulomatosis. The Board notes that aspiration pneumonia is defined as "pneumonia due to the entrance of foreign matter, such as food particles or oral secretions, into the respiratory passages of the lungs." Dorland's Illustrated Medical Dictionary 1472 (32nd ed. 2012). The VA examiner did not address whether this type of pneumonia is distinguishable from the nonbacterial pneumonia that occurred during service and the Board is unable to make such a medical determination of its own accord. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The October 2014 remand also instructed the examiner to determine whether the Veteran had mild granulomatous disease based on the November 2011 VA x-ray findings. The examiner stated that the Veteran's x-ray findings were asymptomatic and without a clear diagnosis, but presented as a pattern of mild granulomatous disease. In light of the apparent contradiction in these statements, the examiner should also clarify whether the Veteran has a current diagnosis of mild granulomatous disease. The Board acknowledges that the record contains an April 2012 positive nexus opinion; however, this opinion is speculative and thus provides an insufficient basis upon which to grant service connection. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In addition, there appear to be relevant and outstanding VA treatment records. In the December 2014 opinion, the examiner cited to a November 2014 VA treatment record documenting the Veteran's treatment for bronchitis. The September 2014 VA examination report also noted that the examiner reviewed relevant VA treatment records dated from May 2012 through November 2014. These VA treatment records are not associated with the claims file. Once VA is aware of the existence of relevant records, it must make such efforts as are necessary to obtain them, and may abandon such efforts only upon concluding that the records do not exist, or further efforts to obtain them would be otherwise futile. See 38 C.F.R. § 3.159. Furthermore, complete VA treatment records are in the constructive possession of VA adjudicators. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, all relevant and outstanding VA treatment records must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all relevant records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After completing the preceding development, return the claims file to the examiner that provided the September 2014 VA medical opinion for the Veteran's claimed respiratory disorder. If that examiner is unavailable, send the claims file to a similarly qualified examiner. If an additional examination is deemed necessary to provide the requested opinion, such an examination should be scheduled. The entire claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Initially, the examiner must clarify whether the Veteran has a current diagnosis of mild granulomatous disease. If the examiner finds that the Veteran has a current diagnosis of mild granulomatous disease, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's mild granulomatous disease manifested during service or is otherwise related to an event, injury, or disease incurred during active service. In rendering an opinion, the examiner must address the following: (1) the Veteran's in-service exposure to fuel, gas, and fumes; and (2) the Veteran's in-service treatment for nonbacterial right lower lobe pneumonia in January 1975, viral syndrome in January 1976, sinusitis and left eye conjunctivitis in October 1976, and left, early flu syndrome in November 1976. The examiner must also address the May 2010 abstract from the Archives of Pathology & Laboratory Medicine entitled "Granulomatous Lung Disease: An Approach to the Differential Diagnosis." In particular, the examiner must address the abstract's conclusion that aspiration pneumonia is a noninfectious cause of granulomas. The examiner must explain whether the type of pneumonia that the Veteran experienced during service is considered to be a form of aspiration pneumonia. 4. Review the examination report to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 2014). _________________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).