Citation Nr: 1801721 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-40 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for gum disease and lockjaw. 3. Entitlement to service connection for a bilateral ear disorder, to include fungal infection of the ear. 4. Entitlement to service connection for a lung condition, to include residuals of pneumonia, chronic bronchitis, and lung nodules. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1951 to April 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) The Veteran testified at a November 2017 videoconference hearing before the undersigned Veterans Law Judge (VLJ). Most recently, the Veteran's claim for service connection for a bilateral ear condition was denied in a January 1991 rating decision, her claims for service connection for a low back disability and gum disease and lockjaw were denied in an April 1997 rating decision, and her claim for service connection for a lung condition was denied in a May 1997 rating decision. Each of these rating decisions denied entitlement to service connection on the basis that the Veteran had not submitted new and material evidence to reopen the claims since an initial December 1978 rating decision denying her claims. In July 2015, the RO received additional service department records which relate to the Veteran's claim; therefore VA must reconsider the Veteran's claims for entitlement to service connection without regard to the finality of the prior RO decisions. 38 C.F.R. § 3.156(c) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a general VA examination in November 1990, which provided diagnoses of chronic periodontitis, a lung nodule, chronic low back pain and lumbar spasm. However, the examiner did not provide an opinion as to the etiology of the diagnosed conditions, and thus the opinion is inadequate to rating purposes. Likewise, in a December 1990 orthopedic compensation and pension examination a physician gave the Veteran a diagnosis of chronic low back pain, but did not provide an opinion as to the etiology of the diagnosed condition. Thus the Board finds that new VA examinations are necessary prior to the adjudication of the Veteran's now reopened claims for entitlement to service connection for a low back disability, gum disease and lockjaw, and a lung condition. See 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4). Further, the Veteran has not been afforded a VA examination for her claimed bilateral ear condition. The Board finds that a VA examination is warranted to determine the nature and etiology of the Veteran's claimed disability. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. Contact the Veteran, and, with her assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers. 2. After undertaking the development above to the extent possible, the RO should schedule the Veteran for appropriate VA examinations to determine the nature and etiology of her claimed low back disability, gum disease and lockjaw, bilateral ear conditions, and lung conditions. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the appropriate examiner should address the following inquiries: (a) Identify all current diagnoses associated with the Veteran's low back, mouth and gums, bilateral ears, and lungs that have been present at any time during the appeal period. (b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed condition was caused by or is etiologically related to active duty service. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). These claims 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). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).