Citation Nr: 1631398 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 14-44 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for pulmonary fibrosis. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from May1954 to May 1956. This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 decision (simplified notification letter) by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The claims were previously before the Board in May 2015 and November 2015, at which time they were remanded for further development of the record. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should 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 By way of brief history, the Veteran served in Japan as a chief cargo checker and he alleges that he was exposed to chemicals while performing duties as a petroleum inspector. See July 2013 claim. A June 2014 VA note indicates that the Veteran's contentions that he fueled tankers "is consistent with is [Military Occupational Specialty]," and the Veteran's private physician noted the Veteran's military history of being exposed to various chemicals as a petroleum inspector in the U.S. Army. In October 2012, the Veteran's private physician's provided an opinion that the current respiratory conditions "may be causally related to his exposure to various chemicals during his time of service." See Opinion from Dr. D.L.B. In light of this evidence, the Board remanded the claims to obtain a VA respiratory examination and an accompanying etiology opinion. The examiner was specifically asked to provide an opinion as to whether it was at least as likely as not the Veteran's claimed respiratory disorders of COPD and pulmonary fibrosis were related to service. In rendering the opinion, the examiner was directed to discuss the October 2012 opinion of Dr. D.L.B., as well as the Veteran's duties as a petroleum inspector fueling tanks in service. The requested opinion was obtained in July 2015. The examiner opined that it was "not likely that the Veteran's lung cancer and pulmonary fibrosis was caused by him serving time in the service." The examiner reasoned that his lung problems were diagnosed more than 50 years after leaving service; that he had worked for the sanitation department for over 20 years; and that he smoked for approximately 30 years, "which can explain his COPD and fibrosis." In its November 2015 Remand, the Board found that the July 2015 opinion was inadequate for rating purposes as the examiner did not fully discuss the specifics noted in the previous remand. See Stegall v. West, 11 Vet. App. 268 (1998) (duty to ensure compliance with Board remand order). Namely, the examiner did not address (a) the October 2012 private opinion, or (b) the Veteran's duties as a petroleum inspector fueling tanks in-service. Moreover, the examiner provided an unsolicited opinion concerning lung cancer (an issue that is not currently on appeal and has not otherwise been raised by the Veteran) and provided no specific opinion regarding COPD. As such, the Board remanded the Veteran's claim for an additional VA opinion to determine the etiology of the Veteran's claimed COPD and pulmonary fibrosis. The requested opinion was obtained in February 2016. The examiner again opined that the Veteran's COPD and pulmonary fibrosis was not caused by military service. In support, it was provided that the Veteran's condition was more likely caused by a 30 year history of smoking. Additionally, the examiner indicated that lung reaction to exposure to petroleum or chemicals will be acute and instantaneous after the exposure not over 40yrs later. The Board finds that the VA examiner has again failed to address the specifics as noted in the prior Remands. Most notably, the examiner, although indicating that such record was reviewed, did not provide any discussion, as directed by the prior Remands, of the findings of the October 2012 opinion of Dr. D.L.B. This issue must be resolved, as the private doctor provided an indication of a possible etiology, albeit with insufficient rationale. Additionally, while the Board notes that the 2016 VA examiner found that the Veteran's lung conditions may not be related to an isolated exposure to petroleum or chemicals in service, as such would only render an acute and immediate effect, there was no discussion of the effects of prolonged day to day exposure over a period of time as shown by the Veteran's service. This is particularly important to resolve in light of the findings of the first 2015 VA examination in which it appeared to indicate that such prolonged exposure over a period of time may result in the Veteran's lung conditions, as suggested by the opinion that "he had worked for the sanitation department for over 20 years," thereby insinuating that the Veteran may have sustained prolonged exposure to chemicals in that context. As such, the Board finds that it must again remand the Veteran's claim for an additional VA opinion to determine the etiology of the Veteran's claimed COPD and pulmonary fibrosis. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2015); 38 C.F.R. § 3.159(c) (2015); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). 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. Associate with the claims file relevant records of the Veteran's treatment within the appropriate VA Health Care system. 2. Ask the Veteran to identify any outstanding treatment records associated with his COPD and pulmonary fibrosis and obtain the necessary authorization to obtain such records. After receiving any necessary authorization forms, the AOJ should obtain all identified records. All attempts to procure the identified records must be documented in the claims file, and the Veteran must be notified of any unsuccessful attempts in this regard. If no such records exist, document such in the claims file. Associate any records or negative responses received with the claims file. 3. Return the file to the July 2015 VA examiner who examined the Veteran and provided the opinion at that time and in February 2016, to issue an addendum opinion regarding the nature and etiology of the Veteran's COPD and pulmonary fibrosis. If the examiner is no longer available, or otherwise determines that the Veteran should be reexamined, the Veteran should be scheduled for an appropriate VA examination. Based on a review of the electronic claims file, including treatment records, the Veteran's statements, the October 2012 medical opinion provided by Dr. D.L.B, and a copy of this REMAND (and examination findings, including any necessary diagnostic studies, if examined) the examiner is requested to again opine as to whether it is at least as likely as not (i.e., at least a 50 percent probability or higher) the Veteran's claimed respiratory disorders of COPD and pulmonary fibrosis are related to service, to include as a result of fueling tanks (i.e., exposure to petroleum/chemicals) in-service e. In rendering the opinion, the examiner must discuss (1) the October 2012 opinion of Dr. D.L.B., and (2) the Veteran's confirmed duties as a petroleum inspector fueling tanks in service, to include resolving whether prolonged exposure could result in the Veteran's lung conditions, as suggested in the 2015 VA opinion. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity 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). _________________________________________________ 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).