Citation Nr: 1637900 Decision Date: 09/27/16 Archive Date: 10/07/16 DOCKET NO. 12-08 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St Paul, Minnesota. In May 2014, the Board reopened a previously denied claim for service connection for COPD and recharacterized the issue as entitlement to service connection for a respiratory disability. The Board then remanded the claims for service connection for a respiratory disability and service connection for residuals of a diaphragm injury for further development. A March 2015 rating decision granted service connection for residuals of a ruptured diaphragm, satisfying that appeal in full. The issue of entitlement to service connection for a respiratory disability has now returned to the Board. The Veteran presented testimony before the undersigned at an October 2013 videoconference hearing, and a transcript of that hearing is of record. REMAND The Veteran's claimed residuals of a diaphragm injury and claimed respiratory disability, to include COPD, have presented a complex and intertwined disability picture. The Veteran has advanced several theories regarding the claim of entitlement to service connection for a respiratory disability. The Veteran has claimed that he has a respiratory disability as a result of diaphragm and right phrenic nerve injuries that he suffered in an October 1967 in-service automobile accident. The Veteran has additionally claimed that his respiratory disability is related to inhaling aviation fuel while working on the flight line in service. Previously, the Veteran underwent a VA examination in June 2006, at which time the examiner found that the only residual of the Veteran s October 1967 in-service automobile accident was a scar to the lower neck from a tracheostomy, for which the Veteran had separately been awarded service connection. In September 2011, Dr C.N.B., a private physician, indicated that the Veteran had "service time right phrenic nerve and diaphragm injuries." A January 2013 VA examiner found that the Veteran had an elevated right diaphragm. However, the January 2013 VA examiner did not address whether the Veteran had associated phrenic nerve injuries to the diaphragm as a result of active service, nor did the examiner indicate whether the Veteran's elevated right diaphragm represented a disability of the diaphragm. In the May 2014 remand, the Board found that clarification was required regarding the nature of the any diaphragm or respiratory disability. While Dr C.N.B. opined that the Veteran had scarring and nerve injuries as a part of a diaphragm injury, VA examiners in June 2006 and January 2013 opined that the Veteran had no functional impairment of the diaphragm. Notably, neither VA examiner had addressed Dr. C.N.B.'s conclusion that the Veteran had phrenic nerve damage as a result of the in service automobile accident. Therefore, the Board requested an additional examination performed by an examiner of appropriate expertise to determine the precise nature of the Veteran's diaphragm disability and any associated respiratory disability. As a result of the May 2014 Board remand, the Veteran underwent multiple VA examinations. On VA examination in July 2014, the examiner specified that the Veteran's right diaphragm was paralyzed, thus delimiting the ebb and flow of inhalation and exhalation of the right chest cavity. The examiner opined that the Veteran's elevated right diaphragm was caused by diaphragmatic paralysis and was more likely as not related to service. The examiner also opined that the Veteran's loss of the right phrenic nerve function was at least as likely as not related to service, as the Veteran experienced a 1967 penetrating diaphragm injury requiring operative intervention while he was on active duty, and there was no other plausible explanation for the current loss of nerve function. Later, the same examiner specified that the Veteran's right diaphragm disability, to the exclusion of any other cardiopulmonary condition, was at least as likely as not caused by the Veteran's service as an expected residual of the 1967 in-service diaphragm injury. The examiner opined that the Veteran's COPD was less likely as not caused by his service, to include exposure to aviation fuel fumes. The examiner stated that COPD was not the result of hydrocarbon fume exposure, but is the result of greater than 30 pack years of tobacco inhalation. The examiner opined that the Veteran's COPD was not aggravated by service for the same reason. The examiner opined that it was less likely as not that COPD was aggravated by the diaphragm disability, as COPD was not the result of the diaphragmatic laceration or phrenic nerve injury and because there were no clinical records to support that contention. On VA peripheral nerve examination in January 2015, a diagnosis of paralysis of the right hemidiaphragm was given. The examiner specified that the paralysis resulted in chronic shortness of breath. As a result of the aforementioned VA examinations, a March 2015 rating decision, granted service connection for residuals of a ruptured diaphragm. A 30 percent rating was established pursuant to Diagnostic Code 6840, used for rating diaphragm paralysis or paresis. The denial of service connection for a respiratory disability, to include COPD, was continued. The Board appreciates the analysis undertaken by the July 2014 VA examiner concerning the theories of direct service connection and secondary service connection. However, the opinion provided regarding whether it is at least as likely as not that the Veteran's COPD was aggravated by the now service-connected diaphragm disability is inadequate. In answering that question, it appears that the examiner did not actually address whether the Veteran's COPD was aggravated by the diaphragm disability, but only opined that the COPD was not caused by the diaphragm disability. When VA provides an examination or obtains an opinion, VA must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Remand is necessary to obtain an etiology opinion concerning whether COPD is aggravated by a service-connected diaphragm disability. Accordingly, the case is REMANDED for the following action: 1. Submit the claims file to the VA examiner who performed the July 2014 VA examination. After review of the prior report and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that COPD is aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected disabilities, to specifically include the service-connected diaphragm disability. The examiner should provide a discussion of the complete rationale for any conclusion provided. If the examiner who offered the July 2014 VA opinion is not available, schedule the Veteran for a VA examination with a medical doctor examiner to obtain the requested opinion. If the July 2014 examiner finds that an examination is necessary to provide the requested opinion, schedule an examination. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts 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).