Citation Nr: 1800111 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-35 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for respiratory disorder claimed as chronic obstructive pulmonary disorder (COPD) with asthma, to include as secondary to service-connected left lower lung pneumothorax. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The Veteran had active military service from August 1960 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Veteran testified before the Board at a September 2015 hearing conducted via videoconference. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required to ensure full compliance with VA's duty to assist. In this regard, a significant number of VA treatment records have not been associated with the electronic claims file. For example, the Veteran testified that he began to seek treatment at the VA Medical Center in Sioux Falls in the 1970s. Other than sporadic treatment records, VA records dated prior to December 2011 have not been associated with the electronic claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). The Board cannot review VA records that may have been viewed by the AOJ but not associated with the electronic claims file. As such, on remand, any outstanding VA treatment records must be obtained and associated with the claims file prior to adjudicating the appeal on the merits. In addition, the Veteran has been provided a VA examination in conjunction with his claim. The examiner rendered a negative etiological opinion, concluding that the Veteran's current COPD is primarily due to his history of smoking. The Veteran disputes this opinion, however, noting that he quit smoking in the 1980s. In addition, the Veteran's representative submitted a 2006 medical study, asserting that, after 25 years, the odds of an ex-smoker developing COPD is only approximately 3% higher than that of a person who never smoked. See May 2015 Statement of Accredited Representative. On remand, an addendum opinion should be obtained which takes this new medical evidence and any records obtained into consideration. 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. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, any treatment received at the Sioux Falls VAMC prior to December 2011 (dating back to the 1970s) must be obtained. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. If the records have been archived, they must be obtained from the archive, or certified that they are unavailable by any reasonable means of searching. 2. Following completion of the above, return the claims file to the VA examiner that conducted the December 2013 VA respiratory examination or, if unavailable, another appropriate VA examiner for an addendum opinion regarding the Veteran's claimed respiratory disorder. If the VA examiner determines an additional in-person examination of the Veteran is necessary, one is to be arranged. The entire claims file must be provided to the examiner for review, and the examination report should reflect such review was accomplished. Any clinically indicated testing and/or consultations must be performed, as needed. Following a review of the claims file, and clinical examination of the Veteran if performed, the examiner is to address the following: a. is it at least as likely as not (probability of at least 50 percent) that the Veteran's current respiratory disorder, to include but not limited to COPD with asthma, had its onset or is otherwise etiologically related to his period of active service? The examiner must address the Veteran's report of a history of breathing difficulties at service separation. b. is it at least as likely as not (probability of at least 50 percent) that the Veteran's current respiratory disorder, to include but not limited to COPD with asthma, is either proximately due to (caused by) or aggravated (chronically worsened beyond normal progression) by his service-connected left lower lung pneumothorax? In offering these opinions, the examiner must specifically address the Veteran's contentions that he quit smoking in the 1980s and the 2006 COPD study submitted on his behalf. A detailed rationale must be provided for any opinion provided, including a discussion of the evidence of record, specifically the positive private opinions, and medical principles which led to the conclusions reached. 3. Review the addendum opinion and ensure its compliance with the instruction above. If the report or addendum opinion is deficient, corrective measures must be undertaken prior to recertification of the appeal to the Board. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MICHAEL D. LYON 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) (2017).