Citation Nr: 1801276 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-15 368A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for respiratory problems, claimed as shortness of breath/lung problems. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the RO in New Orleans, Louisiana. 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) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The AOJ obtained a VA opinion in December 2015 to determine whether it was at least as likely as not (i.e., a 50 percent probability) that the Veteran's current interstitial disease was caused or aggravated by service. Unfortunately, in rendering the opinion, the VA examiner applied an incorrect standard for the negative opinion, explaining that it was not clear with "greater than 50 percent probability" that the Veteran's lung disease was due to service. Also, the December 2015 VA examiner did not address the September 1957 service X-ray report that noted that the Veteran had a slight prominence of inferior portion of the left lung that could represent early disease. Additionally, there is no indication that the examiner considered the Veteran's statements that he had experienced shortness of breath since service. See e.g. October 2014 statement indicating a history of 57 years of being winded. (Notably, in the statement of the case, the AOJ misinterpreted the handwritten statement as "5-7 years" rather than "57 years" of experiencing windedness.) For all of these reasons, a VA addendum opinion is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.). Additionally, as the Veteran regularly receives VA treatment relevant to the present claim, any outstanding treatment records should be obtained and associated with the electronic file. The most recent VA treatment records are dated in February 2015 and located in the Virtual VA file. Lastly, in the Veteran's April 2016 Substantive Appeal Form 9, he did not affirmatively indicate whether or not he desired a hearing before the Board in connection with the appeal. If the claim remains denied following readjudication, please remind the Veteran of the opportunity to request a hearing if he so desires. 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 any outstanding VA treatment records dated from February 2015. 2. Following completion of item 1 above, obtain an addendum opinion from the VA examiner who rendered the opinion in December 2015. If the examiner is not available, seek an opinion from another clinician. The electronic claims file, to include a complete copy of the REMAND, must be made available to the clinician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. The Board leaves it to the discretion of the clinician asked to offer the opinion, whether the Veteran should be reexamined. If examined, all indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of the report), and all clinical findings should be reported in detail. The examiner is asked to identify all lung/breathing disabilities and address the following questions. For each disability identified, including interstitial lung disease, offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to service, to include the effects of inhaling fumes from paint remover and/or asbestos. In reaching any conclusion, the examiner is asked to consider the September 1957 X-ray indicating a slight prominence of inferior portion of the left lung that could represent early disease. The examiner is also asked to consider and address the Veteran's statements that he regularly visited the hull of the ship in service to complete assignments, had to remove paint from fire trucks in service, and experienced windedness since service. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Remind the Veteran that he may request a hearing before the Board if he so desires. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ MARJORIE A. AUER 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).