Citation Nr: 1635824 Decision Date: 09/13/16 Archive Date: 09/20/16 DOCKET NO. 05-00 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for a chronic pulmonary disorder, to include chronic obstructive pulmonary disorder (COPD) and restrictive respiratory disease, also claimed as due to toxic chemical and radiation exposure or as secondary to service-connected chronic maxillary sinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Susco, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, which, in pertinent part, denied service connection for COPD. In February 2009, January 2012, and October 2013, the Board remanded the claim for additional development. Of note, the January 2012 Board decision expanded the claim of service connection to include all pulmonary disorders. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In an April 2014 decision, the Board denied the issue on appeal. The Veteran then appealed the April 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2015 Joint Motion for Remand, the Court vacated the April 2014 Board decision and remanded the claim to the Board for adjudication consistent with the Court's order. In July 2015, the Board remanded the appeal to the RO for additional development. For the reasons discussed below, the matter has not been properly returned to the Board for appellate consideration, and another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using both the "Virtual VA" system and the "Veterans Benefits Management System" paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to a total disability rating based on individual unemployability has been raised by the record in a May 2012 statement from the Veteran's treating physician. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). This issue was referred to the AOJ in the April 2014 Board decision, but it does not appear that action has been taken on this issue. Therefore, the Board does not have jurisdiction over it, and it is again REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In the July 2015 Remand, the Board requested that the Veteran be afforded a VA examination, after which the VA examiner was to provide medical opinions discussing whether "any currently diagnosed pulmonary disorder" was related to service or secondary to the service-connected chronic maxillary sinusitis. In March 2016, the Veteran was afforded the requested VA examination; however, despite the Board's instructions, the VA examiner was only asked to provide an opinion as to whether the Veteran had a diagnosis of COPD, and if so, whether it was related to service. Following examination, the VA examiner diagnosed restrictive lung disease due to obesity and inactivity. The VA examiner indicated that he found no evidence of a significant obstructive component of the Veteran's pulmonary disease and no evidence of a diagnosis of COPD. The VA examiner referenced additional clinical evidence identifying restrictive lung disease and concluded that the Veteran did not have COPD. The VA examiner, therefore, opined that the claimed COPD was less likely than not due to service. While the VA examiner identified the Veteran's obesity and inactivity as factors contributing to his restrictive lung disease, the VA examiner did not provide a specific etiological opinion discussing the relationship, if any, between the diagnosed restrictive lung disease and the Veteran's service. In addition, the VA examiner did not provide any opinion regarding cause or aggravation of a current pulmonary disorder by the service-connected chronic maxillary sinusitis. Accordingly, an addendum VA medical opinion is needed. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file. Attempt to obtain any records identified by the Veteran and associate these records with the claims file. 2. Obtain any outstanding VA medical records and associate them with the claims file, to specifically include all VA treatment records dated after July 2015. 3. After the passage of a reasonable period of time or upon the Veteran's response, return the claims file to the VA examiner who performed the March 2016 VA respiratory examination (or a suitable substitute) for an addendum medical opinion regarding the nature and etiology of any current pulmonary disability. The entire claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner. Another examination is not required; however, if the VA examiner indicates that he cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. Based upon a review of the relevant evidence of record, the VA examiner should identify all pulmonary disorders that were appropriate for the Veteran's clinical presentation at any time during the appeal period (from July 2002 to the present). The VA examiner should reconcile any conflicting opinions regarding the appropriate pulmonary diagnosis(es) during the appeal period. In this regard, the Board notes that VA and private treatment records dated as early as June 2002 reflect pulmonary diagnoses of restrictive airway disease, COPD, reactive airway disease, and bronchiectasis. For each pulmonary disorder identified, the VA examiner should offer the following opinions: a. Did the identified pulmonary disorder begin during service or is it otherwise etiologically related to active service, to include the claimed exposure to toxic chemicals and/or radiation? b. Was the identified pulmonary disorder caused by the service-connected chronic maxillary sinusitis? c. Is the identified pulmonary disorder aggravated by the service-connected chronic maxillary sinusitis? In rendering the above opinions, the examiner must review the record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following: *Service treatment records reflect no complaints, symptoms, or treatment attributable to a pulmonary diagnosis. *An April 2004 statement from a VA physician indicating that the Veteran's bronchiectasis "is related to his chronic bronchitis, which is also related to his sinusitis." *An October 2010 VA medical opinion that the Veteran's restrictive lung disease is not caused by or contributed to by the service-connected sinusitis. The VA examiner provided no rationale in support of this opinion, but indicated that he discussed the Veteran's clinical presentation with a pulmonologist in forming his opinion. *A February 2011 statement from the Veteran's treating physician indicating that the Veteran's "chronic maxillary sinusitis and drainage could contribute to the bronchiectasis that could then lead to the ... COPD." *A June 2011 statement from the Veteran's treating physician indicating that the Veteran "does suffer from COPD and reactive airway disease and I think these have both been related to his service connected chronic sinusitis." *A May 2012 statement from the Veteran's treating physician indicating that the Veteran's chronic sinusitis is "complicating his lungs." The VA physician further indicated that "it is more likely [than] not that his lung condition [] is connected to his sinusitis." *Following examination in January 2013, the VA examiner opined that the Veteran's pulmonary disorder, diagnosed as restrictive lung disease, was less likely than not related to service, claimed exposures, or the service-connected chronic maxillary sinusitis. The VA examiner opined that the Veteran's pulmonary disorder was due to obesity, inactivity, and deconditioning. The VA examiner, in part, based these opinions on a lack of parenchymal, interstitial, or lining changes; however, evidence of record documents parenchymal scarring. *Following examination in March 2016, the VA examiner opined that the claimed COPD was less likely related to service, indicating no evidence of a diagnosis of COPD. The VA examiner diagnosed restrictive lung disease due to obesity and inactivity. In rendering the above opinions, the VA examiner should consider and discuss the Veteran's history of parenchymal scarring and any possible relationship such history has to toxic chemical and radiation exposure, and/or chronic sinusitis. See March 2015 Joint Motion for Remand. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After undertaking any other appropriate development deemed necessary, readjudicate the issue on appeal on the basis of the additional evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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). _________________________________________________ VITO A. CLEMENTI 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).