Citation Nr: 1629725 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 12-15 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of recurrent pneumothorax with pleural effusion. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) with asthma, to include as secondary to residuals of recurrent pneumothorax with pleural effusion. 3. Entitlement to service connection for bronchitis, to include as secondary to residuals of recurrent pneumothorax with pleural effusion. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from January 1956 to January 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2016, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The undersigned also held the record open for 30 days for the receipt of additional evidence. However, no further evidence has been received. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems, and 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 Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). As an initial matter, the Board finds that a remand is necessary in order to obtain outstanding records. In this regard, the Veteran testified at his April 2016 Board hearing that he had received VA treatment for his lung conditions beginning in 1963 from the VA facilities located in Cincinnati, Columbus, Dayton, Lancaster, and Chillicothe, Ohio. While records from such facilities dated from March 1998 to November 2015 are on file, it appears that additional records are available. Furthermore, the record reveals that the Veteran was treated by Drs. Long and Wehr in the time period from 1960 to 1980. However, in an August 2010 statement and at his Board hearing, he indicated that both physicians were retired and he was unaware of how to obtain their records. In this regard, the Board notes that the file reflects that he had previously provided authorization forms for both physicians; however, he did not provide Dr. Wehr's complete address. Furthermore, while Dr. Long responded to VA's request in December 2006, he indicated that he retired in March 1993 and his practice, to include all records, had been sold to Man Area Regional Hospital. He further stated that he had no idea where the records were stored as the hospital had been closed for several years. Therefore, it appears that Drs. Long and Wehr's records are unavailable; however, the Veteran has also indicated that, while such private physicians provided treatment, the Cincinnati VA facility paid the bills and supplied the prescriptions. Therefore, a remand is necessary in order to obtain all outstanding VA treatment records from the aforementioned VA facilities from 1963 to the present, excluding those previously obtained, to include any documentation regarding the payment of Drs. Long and Wehr's bills and prescriptions from 1960 to 1980. Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Sullivan v. McDonald, 815 F.3d 786, 791 (2016). Furthermore, at his Board hearing, the Veteran reported that he received private treatment on occasion. Therefore, while on remand, he should be provided an opportunity to identify any outstanding private treatment records referable to his respiratory/pulmonary complaints; and, thereafter, all such records should be obtained. The Board also notes that, at a March 2011 VA examination, the Veteran reported that he received income from the Social Security Administration (SSA). While he further indicated that he retired in 1998, which was when he turned 63, which suggests that such may be retirement benefits, the AOJ should clarify on remand whether the Veteran has, at any time, been in receipt of SSA disability benefits and, if so, obtain such records. The Board further finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his residuals of recurrent pneumothorax with pleural effusion, and the etiology of his COPD with asthma and bronchitis. In this regard, the Veteran was previously afforded examinations in March 2011 and September 2015 with pulmonary function testing (PFT) conducted in November 2015 and an addendum opinion provided in December 2015. In March 2011, the examiner found that, while the Veteran had diagnoses of COPD and asthma, she could find no connection between his past pneumothorax and such conditions. Furthermore, she indicated that, while up to 50 percent of patients who have a pneumothorax will have another, there are no long-term complications after successful treatment. In December 2015, the VA examiner noted that the Veteran is service-connected for residuals of pneumothorax with pleural effusion, but had multiple comorbidities impacting his respiratory system that include: asthma, COPD, coronary artery disease, congestive heart failure, left ventricle dysfunction and cardiomyopathy. As such, he opined that that the Veteran's current symptoms, which include the impairment evident on his PFTs, are at least as likely as not caused by or the result of his non-service-connected asthma as well as his other non-service connected cardiopulmonary conditions listed above. In support of such opinion, the examiner provided a medical description of each condition. However, neither examiner opined as to whether the Veteran's bronchitis, asthma, or COPD is directly related to his service as the Veteran has contended (see Board Hearing Transcript, pp. 4, 8-9, 13), or is aggravated by his service-connected residuals of recurrent pneumothorax with pleural effusion. With regard to his claim for direct service connection, the Veteran has alleged that he was treated repeatedly during service for strep throat and tonsillitis. While his service treatment records are negative for any such complaints or treatment, at his March 1963 VA examination, he reported pain, an occasional cough, and shortness of breath. Similarly, at his March 1968 VA examination, the Veteran indicated that he had colds approximately 12 times a year, for which he saw his family physician, and continued to experience pain. Therefore, a remand is necessary in order to obtain another opinion regarding the etiology of the Veteran's claimed COPD, asthma, and bronchitis. Furthermore, with regard to the Veteran's residuals of recurrent pneumothorax with pleural effusion, he testified at his April 2016 hearing that the condition had worsened since his last examination conducted in September/November 2015 and that he was about ready to go on oxygen. Therefore, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 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. The Veteran should be given an opportunity to identify any outstanding treatment records relevant to his respiratory/pulmonary complaints. After obtaining any necessary authorization from the Veteran, all outstanding records, including all outstanding VA treatment records from the Cincinnati, Columbus, Dayton, Lancaster, and Chillicothe VA facilities from 1963 to the present, excluding those previously obtained, to include any documentation regarding the payment of Drs. Long and Wehr's bills and prescriptions from 1960 to 1980, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Ascertain whether the Veteran has, at any time, been in receipt of SSA disability benefits and, if so, obtain such records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an appropriate VA examination so as to determine the current nature and severity of his residuals of recurrent pneumothorax with pleural effusion, and the etiology of his COPD with asthma and bronchitis. The record, to include a copy of this remand, should be reviewed by the examiner. The examiner should also discuss the Veteran's medical history and symptoms. The examiner should identify all current respiratory/ pulmonary disorders found to be present. He or she should specifically indicate whether the Veteran has, at any time since May 2010, had a diagnosis of COPD, asthma, and/or bronchitis. The examiner should describe all respiratory/pulmonary symptomatology found to be present and indicate whether such is attributable at least in part to the Veteran's residuals of recurrent pneumothorax with pleural effusion. The examiner should conduct PFT and report all such results. He or she is specifically requested to indicate whether the results are attributable at least in part to the Veteran's residuals of recurrent pneumothorax with pleural effusion. With regard to any diagnosis other than pneumothorax, to include COPD, asthma, and/or bronchitis, the examiner should offer an opinion with regard to the following inquiries: (A) whether it is at least as likely as not (i.e., a 50 percent probability, or greater) that such disorder had its onset during service, or is otherwise related to service? In offering such opinion, the examiner should consider the Veteran's report at his March 1963 VA examination that he had pain, an occasional cough, and shortness of breath, and his report at his March 1968 VA examination that he had colds approximately 12 times a year, for which he saw his family physician, and continued to experience pain. (B) whether it is at least as likely as not (i.e., a 50 percent probability, or greater) that such disorder is caused OR aggravated by the Veteran's residuals of recurrent pneumothorax with pleural effusion. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for all opinions must be provided. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).