Citation Nr: 1624007 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 11-18 336 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for residuals associated with a rib injury. 2. Entitlement to service connection for a lung disability, to include as the result of exposure to asbestos. 3. Entitlement to service connection for Alzheimer's disease and dementia, to include as due to traumatic brain injury (TBI). 4. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from February 1959 to February 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2013 the Veteran testified at the RO before the undersigned during a videoconference hearing. A transcript of the hearing is included in the record. When this case was previously before the Board in March 2014, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. With respect to representation, in March 2016 the Board sent the Veteran a letter in order to clarify representation prior to proceeding with appellate review of his case. Specifically, the letter noted that the most recent VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) was dated in September 2004 in favor of The American Legion (TAL). The Board's March 2016 letter informed the Veteran that if he did not appoint a new representative within 30 days of the date of the letter, by submitting a VA Form 21-22, the Board would assume that he wished to continue to have TAL represent him in his appeal. In response to the letter, Mr. R.A.O. submitted a fee agreement and notice of appearance; however, to date, neither the Veteran nor Mr. R.A.O. has responded to the March 2016 letter with a new VA Form 21-22. As such, TAL is the current representative of record. 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 At the outset, the Board notes that the Veteran resubmitted multiple VA Forms 21-4142, Authorization and Consent to Release Information to the VA, in July 2015. Subsequently, these records were requested in July 2015, but the requests were rejected as they had expired. Moreover, in July 2015 it was also noted that the Veteran was "seen, treated, and evaluated" by Dr. C.T.B; updated treatment records from Dr. C.T.B. are not of record. As such, the Board finds that a remand is required to request any proper, unexpired, authorizations and outstanding records. As noted on the title page, the Veteran seeks service connection for residuals associated with a rib injury, a lung disability (to include as the result of exposure to asbestos), Alzheimer's disease and dementia (to include as due to TBI), and for an acquired psychiatric disorder. In response to the Board's March 2014 remand, the Veteran was afforded VA examinations in May 2014 in which the examiner(s) noted a diagnosed rib fracture in 1959 and a diagnosis of asthma in 2003. The Veteran was also afforded a VA examination in May 2014 in which the examiner diagnosed major neurocognitive disorder, unspecified, and other specified depressive disorder. The examiner opined that other specified depressive disorder was less likely than not related to military service. The examiner stated that per the Veteran's description of symptoms, onset occurred after his divorce from his first wife. The Veteran was also afforded a VA examination in July 2014 in which the examiner noted a diagnosis of TBI in service in September 1959. The examiner stated that the Veteran's history and private neurologists found that he developed dementia. The examiner opined that there was no evidence that connected his case by means of a stressor associated with the Cuban Missile Crisis to the current features of dementia. The examiner also noted that the Veteran's history of working for 38 years with perfect attendance was incongruent with the natural course of a mild TBI and that the dementia was less likely as not a result of a mild TBI nor his claimed series of three [injuries] during his period in the service. In an addendum in November 2014, a VA examiner stated although the Veteran sustained a fractured left rib in 1959 and stated that he had difficulty breathing, the diagnosis of asthma was more than likely the mitigating factor; there was no current evidence from past X-rays taken in this decade that revealed a rib fracture after 55 years since the original event. The examiner opined that it was not as likely that the rib fracture sustained in 1959 would result in the residual of difficulty breathing and was at least likely than not related to his current diagnosis of asthma. After reviewing the VA opinions of record, the Board notes that in the January 2015 Supplemental Statement of the Case (SSOC), the RO noted that a VA examiner opined that was less likely than not (less than 50 percent probability) that the asthma was related to active military service. However, the Board does not find this language/opinion in the examination reports or elsewhere in the record. As such, remand is required for an addendum opinion, to include one that addresses not only asthma but all of the lung disabilities diagnosed during the pendency of this appeal, to include sleep apnea, chronic obstructive pulmonary disease (COPD), potential asbestosis and pleural thickening. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As per Clemons, the Board also finds that clarification is required from the May 2014 examiner as the etiology of other acquired psychiatric disability diagnosed during the pendency of this claim; namely anxiety, was not addressed. Id. Moreover, the etiology of major neurocognitive disorder was not addressed. Id. Finally, the Board notes that the July 2014 examiner did not address the December 1962 service treatment record (STR) documenting that the Veteran was diagnosed with, and treated for, syphilis during service, as instructed in the prior remand directives. As such, addendum opinions are warranted on remand. 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. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. A specific request should be made for any records from Dr. C.T.B. Subsequently, and after securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran that 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 electronic 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. 2. Access to the electronic claims file should be returned to the VA examiner(s) who conducted the May and July 2014 examinations, or suitable substitute if the examiners are unavailable. The examiners should be requested to review the claims file and to provide addendums addressing the following: (i) Is it at least as likely as not that major neurocognitive disorder and dementia/Alzheimer's relate to any in-service disease, event, or injury? Please address the September 1959 STR documenting a head injury from playing football, a July 1962 STR indicating difficulty focusing, and December 1962 STRs documenting that the Veteran was diagnosed with, and treated for, syphilis during service. (ii) Is it at least as likely as not that a lung disability, to include sleep apnea, COPD, potential asbestosis and pleural thickening, relates to any in-service disease, event, or injury? Please address the Veteran's lay statements of record that he served in close proximity to asbestos during his service aboard naval vessels on active duty. (iii) Is it at least as likely as not that anxiety relates to any in-service disease, event, or injury? Please address the Veteran's contentions that the stresses associated with serving during the Cuban missile crisis caused a current psychiatric disorder. Each examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiners are reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with an SSOC and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Board intimates no opinion to the outcome of this case. 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). _________________________________________________ MICHAEL A. PAPPAS 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).