Citation Nr: 1619955 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 12-21 001A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for lung/respiratory disability, including chronic obstructive pulmonary disease, emphysema, asthma, and bronchitis. 2. Entitlement to an initial rating in excess of 10 percent for lumbar back strain. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from April 1979 to April 1982 and from September 1982 to September 1984. This appeal comes before the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) rating decision of the VA Regional Office (RO) in Seattle, Washington. The Veteran resides within the jurisdiction of the Los Angeles, California VA RO. He appeared there at a Travel Board hearing before the undersigned, and the case was forwarded to the Board from the LA RO. The Veteran's records are now are contained completely in Virtual VA and Veterans Benefits Management System (VBMS) electronic files. Following review of the record, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development of the record is warranted prior to disposition of the issues on appeal. The Veteran asserts that he has lung/respiratory disability that was incurred in or aggravated by service for which service connection should be granted. In a letter received in December 2011, he maintains that he has medical records to prove that he had asthma, bronchitis and emphysema prior to entering active duty. He stated that the conditions got worse in service because of duties that included bivouac, road marches, field duty, working with ammunition, and occasionally inhaling CS gas. The Board notes that the appellant also asserts that he has documentation of lung and/or respiratory disability that pre-existed service. However, he has not provided any evidence of such for VA consideration. As such, he should be contacted and requested to furnish those records or authorization for VA to retrieve them. The Board observes that in a letter received in December 2012 and in testimony, the Veteran indicated that he received treatment at the Temple Street VA in Los Angeles, California, among other facilities. He testified in March 2016 that he only received treatment at VA. The claims file contains VA records dating from 2008 through June 2012. The Board is thus put on notice as the existence of additional VA clinical evidence that should be requested and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611. Therefore, VA outpatient records dating from 1984 through 2007 and from July 2012 through the present should be requested and associated with the electronic record. The Veteran asserts that symptoms associated with his service-connected low back disorder are more severely disabling than reflected by the currently assigned disability evaluation and warrant a higher rating. Review of the record discloses that he last had a VA examination for compensation purposes in February 2011. The Court of Appeals for Veterans Claims has held that when the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Snuffer v. Gober, 10 Vet. 10 Vet. App. 400, 403; Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). As such, the appellant should be scheduled for a VA orthopedic examination to ascertain the status of the service-connected lumbar spine strain. Finally, the record reflects that the Veteran was afforded an examination for VA compensation and pension purposes in February 2011 for the claimed lung/respiratory disorders. The Board notes that in presenting her conclusions, the examiner stated that "...based on medical records reviewed, it is at least as likely as not that the patient's severe COPD is associated with his military service. Although he was seen several times for Upper Respiratory Infection (URI) back in 1982 and 1984, all findings showed that his lungs were clear. In 1997, and 2010, history included severe COPD with bullous disease consistent with Emphysema. In 1997, the patient had a 30 pack years of smoking, and even in 2010, he was still smoking. This history of nicotine abuse is at least as likely as not the cause of his COPD rather than his URI in 1982 and 1984." The Board observes, however, that although the examiner initially states that chronic obstructive pulmonary disease is at least as likely as not associated with the Veteran's military service, she appears to conclude that it is not related to symptoms in service. This inconsistency should be rectified by another VA examination. Accordingly, the case is REMANDED for the following actions: 1. Contact the appellant in writing and request that he submit authorizations(s) identifying all non-government providers who treated him for lung/respiratory disability prior to and after service. VA should request these records when and if proper authorization is received. The appellant should also be notified that he may also retrieve such records on his own and submit them to the VA if he so desires. The Veteran should also submit any records that he has in his possession that are pertinent to these claims. All VA treatment records should also be obtained, including those from Temple Street, and West LA VA facilities. The Veteran should also be asked whether he has received treatment other VA facilities. If so, any other VA records dating from 1984 should also be requested and associated with the claims file, to include any that may be retired or on microfilm. All attempts to obtain the records should be documented in the claims file. 2. After a reasonable time for receipt of additional VA and private records, arrange for the Veteran to have a VA examination by an appropriate examiner to determine the likely etiology of currently claimed lung/respiratory disorders, including chronic obstructive pulmonary disease, emphysema, asthma, and bronchitis. Access to Virtual VA/VBMS must be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. The examiner must respond to the following: a) Did the Veteran clearly and unmistakably have pre-existing lung/respiratory conditions prior to service entry in 1979? If so, what is the most likely diagnosis? b) If so, clearly and unmistakable that there was no permanent increase in severity of any pre-existing lung/respiratory condition during service? If there is no evidence of worsening, or it is not beyond what would normally be expected, that should be clearly set out. c) Is it at least as likely as not that any current lung/respiratory disorder is directly attributable to injury in service irrespective of any pre-existing left lung/respiratory? d) If no pre-existing lung/respiratory disorder is apparent, is it at least as likely as not that there is a relationship between current disability of this nature and in-service respiratory symptomatology? e) What is the likely etiology of the Veteran's chronic obstructive pulmonary disease, emphysema, asthma, and bronchitis; are these disorders more likely of post service onset and unrelated to service? Detailed and complete rationale should accompany the opinions provided. The examiner should provide full rationale for the opinions and reference the facts relied upon in reaching his or her conclusions. 3. Schedule the Veteran for an orthopedic examination by an appropriate VA examiner to assess the status of the service-connected lumbar spine disorder. Access to Virtual VA/VBMS must be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. The examiner should provide all ranges of motion for the lumbar spine and specifically indicate whether there is any additional limitation of function due to or caused by repetitive movements, fatigue, pain, weakness, lack of endurance or incoordination, etc. Any other impact of the disorder, such as radiation, or other impairment should also be set forth. 4. The AOJ should ensure that the medical reports requested above comply with this remand, especially with respect to the instructions to provide a competent medical opinion. If the report is insufficient, or if an action requested is not taken or is deficient, it must be returned to the examiner for correction. See Stegall v. West, 11 Vet.App. (1998). 5. After taking any further development deemed appropriate, readjudicate the issues on appeal. If a benefit is not granted, provide a supplemental statement of the case to the Veteran and his Representative and afford them an opportunity to respond before the case 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 2014). _________________________________________________ MICHAEL D. LYON 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).