Citation Nr: 1752830 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 15-06 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, to include lumbosacral strain with spondylolisthesis. 2. Entitlement to service connection for a respiratory disorder, to include Chronic Obstructive Pulmonary Disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from February 1961 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma (Agency of Original Jurisdiction (AOJ)). The Veteran previously testified at a Board hearing before the undersigned in May 2016. A transcript of the proceeding is of record. This case was previously before the Board in November 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action, on his part, is required. REMAND The Board regrets any delay, but finds that the VA examination and opinions requested by the Board must be returned as inadequate for rating purposes. With respect to the low back disorder, the Board requested opinion as to whether the Veteran manifested a leg length discrepancy and, if so, whether any repetitive use and/or trauma while performing active service caused or contributed to a current low back disability. A February 2017 VA examination and opinion was returned to the examiner for failing to address the leg length discrepancy question. In an August 2017 addendum opinion, the examiner declined to assess the Veteran's report of a 3/8 inch leg length discrepancy as being based on the fact that the Veteran is not medically trained to offer such an assessment, and opinion that a measurement of a leg length discrepancy would require subjecting the Veteran to the unnecessary harmful radiation of a computed tomography (CT) scan. The Veteran is competent to report what a medical doctor had previously diagnosed although whether this is an accurate description is a question of fact which needs to be resolved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The measurement of a leg length discrepancy does not necessarily require resort to CT scan imaging. See, e.g., http://orthoinfo.aaos.org/topic.cfm?topic=a00259. The Board requires examination by a different examiner. With respect to the respiratory disorder, the Veteran was previously diagnosed with COPD during a VA examination that took place in September 2014, over a year since he first filed his claim. See September 2014 Legacy Content C&P Examination. At that time, a pulmonary function test (PFT) was performed that, according to the examiner, accurately reflected the Veteran's current pulmonary function. At that time, the examiner indicated that the Veteran did not have multiple respiratory conditions. A February 2017 VA examiner conducted additional PFT testing, and concluded that the Veteran did not manifest COPD or any other respiratory disorder. The examiner did not reconcile this finding with the prior diagnosis of COPD or the references to asthma, sinusitis, emphysema and/or rhinitis in the clinic records. As such, this examination report must be returned as inadequate for rating purposes. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all VA treatment records since November 2016. 2. Then, schedule the Veteran for appropriate VA examination with examiner other than the February 2017 examiner to determine the nature and etiology of his claimed respiratory disorder(s). The claims folder contents must be made available to the examiner who is requested to provide the following opinions: a. Whether the Veteran has a respiratory disorder other than COPD based upon his description of recurrent symptoms, to include asthma, sinusitis, emphysema and/or rhinitis. If the examiner finds that the Veteran does not have a current disability of COPD, asthma and/or emphysema, the examiner is requested to explain why his/her opinion differs from the diagnoses shown in the clinic records. b. For any respiratory disorder diagnosed above, provide opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disability had its onset in service or is related to the active service from February 1961 to October 1965 including presumed asbestos exposure taking into account the Veteran's treatment for bronchitis in 1961 and his testimony before the Board in May 2016. The examiner is free to comment as to whether there is any medical reason to accept or reject the Veteran's description of recurrent respiratory symptoms since service. A rationale for all opinions expressed should be provided. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled. 3. Schedule the Veteran for a VA examination by an appropriate medical professional other than the February 2017 examiner and obtain a medical opinion as to: a. Identify all current disorders of the lumbar spine; b. Identify whether the Veteran has a leg length discrepancy and, if so, accept the Veteran's testimony that such discrepancy existed prior to service; c. Whether it is at least as likely as not that any current lumbar spine disorder had its onset in service or is caused by or related to service, to include any repetitive use and/or trauma while performing military duties with a leg length discrepancy? In so doing, the examiner is requested to accept as true the Veteran's description of back pain and sciatica symptoms after performing military duties involving prolonged standing. The examiner is also requested to discuss whether repetitive use and/or trauma while performing military duties caused any superimposed back disorder on the congenital spina bifida occulta. A rationale should be provided for all opinions. 4. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. 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). 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. §§ 5109B, 7112 (2014). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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) (2017).