Citation Nr: 1635149 Decision Date: 09/08/16 Archive Date: 09/20/16 DOCKET NO. 10-40 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disease (COPD) due to asbestos exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Louisville, Kentucky, Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in March 2014. The appeal was remanded for additional development. As discussed below, the requested development was not substantially complied with and thus the claim must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In March 2014 the Board remanded the Veteran's claim for a new VA examination performed by a pulmonary specialist to determine the current nature and likely etiology of any diagnosed respiratory disorder, to include COPD. In response to the March 2014 Board remand a May 2014 VA examination was performed at the Huntington, West Virginia, VA Medical Center (VAMC). The examiner noted the Veteran's history and indicated "no" as to whether the Veteran had ever been diagnosed with a respiratory condition, but then noted that the Veteran was using intermittent inhalational bronchodilator therapy. The examiner noted a diagnosis of COPD in 2009, but noted that was prior to pulmonary function testing conducted in 2010. The examiner then provided a negative opinion and indicated there is no evidence of lung disease. The Board finds that opinion is inadequate because medical records include numerous references to COPD, as late as 2012. The history recorded by the examiner appears inconsistent because the examiner notes no diagnosis of a respiratory disorder but then notes that the Veteran uses medication intermittently. Thus, another opinion is required. A prior Board remand noted an April 2007 chest x-ray showed a patchy area of interstitial lung disease. The significance, if any, of that record has not been referred to by the VA examiners to date. The opinion obtained on remand should address that record. The most recent Board remand requested an examination be performed by a pulmonary specialist. The May 2014 examination was performed by Dr. T.R.P. A review of the online directory maintained by the Huntington VAMC lists Dr. T.R.P.'s board certifications as "Internal Medicine" and "Hematology (Internal Medicine)." Thus, it appears Dr. T.R.P. is not a pulmonary specialist. The examiner performed an in-person examination which included a chest x-ray. Dr. T.R.P. also noted that pulmonary function testing had been performed, but referenced testing performed in July 2013. Therefore, it appears that as a complete new pulmonary examination was not performed and that the examination was not performed by a pulmonary specialist. On remand, the Veteran must be provided an appropriate examination that includes all pertinent testing. Additionally, the Board notes that an April 2010 VA examination performed in connection with the Veteran's service-connected posttraumatic stress disorder (PTSD) noted that the Veteran's COPD "may be aggravated by the tension and stress associated with PTSD." Thus, the examination conducted on remand should include consideration of whether any currently diagnosed respiratory disorder is aggravated by his service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file any and all outstanding VA treatment records, to specifically include, records dated after March 2014. 2. After the above has been completed schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any respiratory disorder. the claim of a relationship between in-service asbestos exposure and any current respiratory disorder, to include COPD. Copies of all pertinent records should be forwarded to the examiner for review. All indicated testing should be carried out. Based on the examination and review of the record, the examiner should offer an opinion as to: (a) Did the Veteran have a diagnosed respiratory disorder at any time during the appeal period (from December 2009)? The examiner should discuss the significance, if any, of the April 2007 x-ray finding of a patchy area of interstitial lung disease. (b) For each diagnosed respiratory disorder, including COPD, is it at least as likely as not (50 percent or higher degree) that the respiratory disorder is related to the Veteran's active service, to include exposure to asbestos during the Veteran's active service. The examiner should consider the Veteran's active service asbestos exposure to have been conceded. (c) For any currently diagnosed respiratory disorder, is it at least as likely as not (50 percent or higher degree) that it is aggravated by his service-connected PTSD. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of respiratory disability present (i.e., a baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then adjudicate the Veteran's service connection claim. If the benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M.E. LARKIN 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).