Citation Nr: 1628765 Decision Date: 07/19/16 Archive Date: 07/28/16 DOCKET NO. 12-09 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to dust or herbicide exposure, and as secondary to service-connected asthma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from June 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran was afforded a videoconference hearing before the Board in October 2013. A transcript of the testimony offered at the hearing has been associated with the record. In October 2014, the Board remanded the claim for development. Following a VA respiratory examination in January 2015, the Appeals Management Center (AMC) issued a February 2015 rating decision effectuating the grant of service connection for asthma, with a 60 percent disability evaluation, effective February 16, 2011. In a February 2015 Supplemental Statement of the Case (SSOC), the AMC continued to deny entitlement to service connection for COPD. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Following the Board's remand directives, the Veteran was afforded a VA examination in January 2015. The examiner diagnosed both asthma and COPD, with diagnosis dates in September 1971 and December 2011, respectively. Given the notation of upper respiratory infection (URI) in service and the diagnosis of asthma in 1971, in close proximity to the Veteran's discharge date, the examiner rendered a favorable opinion with respect to asthma. However, the examiner rendered a negative etiological opinion for the assessed COPD. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). The Veteran's representative requests that the matter be remanded for clarification of the January 2015 VA examination report to the extent that it fails to address whether COPD was caused or aggravated by the now service-connected asthma. The January 2015 opinion does not address this question. Accordingly, the claim is remanded for further development. 38 C.F.R. § 4.2. Lastly, the Board notes that the Veteran is claiming service connection for COPD as secondary to his now service-connected asthma. It is arguable that he has sufficiently demonstrated actual knowledge of the evidence and information necessary to substantiate a claim for service connection on a secondary basis. However, in an abundance of caution, the Board finds that upon remand of this matter the Veteran should be provided notice on how to substantiate a claim on a secondary basis. See 38 C.F.R. § 3.310 (2015). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice that notifies him of the information and evidence not of record that is necessary to substantiate a claim for service-connection of a condition on a secondary basis. This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. 2. After the development directed in paragraph 1 has been completed to the extent possible, return the file to the examiner that provided the January 2015 opinion, or a suitable substitute for an addendum opinion. The examiner is asked to address whether it is at least as likely as not (a 50 percent or greater probability) that any such disability was caused or aggravated by the now service-connected asthma. If the examiner finds aggravation by the service-connected COPD, the examiner should indicate to the extent possible the approximate degree of disability or baseline before the onset of the aggravation. Aggravation is a chronic worsening of the underlying condition beyond the natural progression, versus a temporary flare-up of symptoms. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If any of the benefits sought remain denied, issue an appropriate Supplemental Statement of the Case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ K. J. ALIBRANDO 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).