Citation Nr: 1601770 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 09-16 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for pleural plaques with mild reactive airway disease. 2. Entitlement to service connection for gastroesophageal disease (GERD) as secondary to service-connected pleural plaques with mild reactive airway disease. 3. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected pleural plaques with mild reactive airway disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1948 to July 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2015, the Veteran, sitting at the RO, testified at a hearing conducted via video conference with the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was processed using VBMS (the Veterans Benefits Management System) and the Virtual VA paperless processing system. Accordingly, any future consideration of this Veteran's case shall take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds further development must be undertaken prior to appellate review. The most recent VA examination of the Veteran's pulmonary condition was in March 2014. At the November 2015 Board video conference hearing, the Veteran asserted that his service-connected pulmonary condition of pleural plaques with mild reactive airway disease had worsened since his last examination. Accordingly, a remand for an appropriate VA examination to assess the current severity of his service-connected pleural plaques with mild reactive airway disease is needed. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, the Veteran seeks entitlement to service connection for GERD and entitlement to service connection for obstructive sleep apnea. Specifically, he contends that he has GERD and obstructive sleep apnea that are secondary to his service-connected pleural plaques with mild reactive airway disease. In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Upon review, it does not appear that a VA physician has opined as to any relationship between the Veteran's GERD and obstructive sleep apnea and his service-connected pulmonary condition. As it remains unclear to the Board whether the Veteran's service-connected pleural plaques with mild reactive airway disease caused or aggravated his development of GERD and obstructive sleep apnea, the Board finds that a remand for an examination and etiological opinion is necessary in order to fairly decide the merits of his claims. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, an effort should be made to obtain any records pertaining to ongoing treatment the Veteran has received that are not already on file. 38 U.S.C.A. § 5103A(c) (West 2014). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA medical records and associate them with the paper or virtual claims file. All efforts to obtain these records must be documented. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. The Veteran should also be given opportunity to present any private treatment records. 2. Take appropriate steps to obtain a medical opinion from an appropriate VA physician as to the nature and etiology of the Veteran's obstructive sleep apnea. The claims folder must be made available to and be reviewed by the examiner. All appropriate test and studies should be accomplished and all clinical findings should be reported in detail. a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's pulmonary condition, namely his service-connected pleural plaques with mild reactive airway disease, is the cause of any currently diagnosed obstructive sleep apnea? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's pulmonary condition, namely his service-connected pleural plaques with mild reactive airway disease, caused a worsening of any currently diagnosed obstructive sleep apnea, beyond the normal progress of that disease? c. If such aggravation is found, the examiner should determine: (1) the baseline manifestations of the Veteran's obstructive sleep apnea; and (2) the increased manifestations that are proximately due to the Veteran's service-connected pleural plaques with mild reactive airway disease. The examiner should explain the reasons and bases for each opinion provided. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Take appropriate steps to obtain a medical opinion from an appropriate VA physician as to the nature and etiology of the Veteran's gastroesophageal disease. The claims folder must be made available to and be reviewed by the examiner. All appropriate test and studies should be accomplished and all clinical findings should be reported in detail. a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's pulmonary condition, namely his service-connected pleural plaques with mild reactive airway disease, is the cause of any currently diagnosed gastroesophageal disease? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's pulmonary condition, namely his service-connected pleural plaques with mild reactive airway disease, caused a worsening of any currently diagnosed gastroesophageal disease, beyond the normal progress of that disease? c. If such aggravation is found, the examiner should determine: (1) the baseline manifestations of the Veteran's gastroesophageal disease; and (2) the increased manifestations that are proximately due to the Veteran's service-connected pleural plaques with mild reactive airway disease. The examiner should explain the reasons and bases for each opinion provided. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran for an appropriate VA examination to evaluate the current nature and severity of his pleural plaques with mild reactive airway disease. Any indicated evaluations, studies, and tests should be conducted, including pulmonary function tests. The examiner must specifically provide FEV-1, and DLCO results, or explain with ample rationale why those results are not necessary. The claims folder must be made available to the examiner for review prior to the examination, and the examination report should reflect that review of the record was accomplished. The examiner should identify the nature and severity of all manifestations of the Veteran's pleural plaques with mild reactive airway disease. He or she should specifically indicate whether the Veteran's pleural plaques with mild reactive airway disease has any extra-pulmonary involvement and, if so, identify which body system is involved. The examiner should also report whether the Veteran's pleural plaques with mild reactive airway disease results in cor pulmonale or cardiac involvement with congestive heart failure, and whether such requires systemic high dose (therapeutic) corticosteroids for control. The examiner must comment on the impact the Veteran's pleural plaques with mild reactive airway disease, and the Veteran's obstructive sleep apnea and GERD if found to be caused or aggravated by his pleural plaques with mild reactive airway disease, has on his functional impairment, including the impact if any, on employment related tasks. All opinions expressed must be accompanied by supporting rationale. 5. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board. 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).