Citation Nr: 1802421 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-14 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Veteran represented by: Timothy M. White, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD N. Keogh, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1967 to November 1968. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his sister testified at a Board hearing before a Veterans Law Judge (VLJ) in March 2013. The hearing transcript is of record. The Veteran was informed that the VLJ who conducted the hearing is no longer employed by the Board. In November 2017 correspondence, his attorney indicated that the Veteran did not desire another hearing with a current VLJ. In May 2016, the Board denied the Veteran's claim. In a February 2017 joint motion for remand, the United States Court of Appeals for Veterans Claims (Court) vacated the May 2016 Board decision and remanded the claim to the Board for readjudication. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In the February 2017 joint motion for remand, the Court found the November 2014 VA opinion provided an inadequate rationale to support its conclusion regarding the etiology of the Veteran's respiratory condition. The Court found the November 2014 VA opinion inconsistent because the examiner reported it was unclear whether the claimed in-service event (the Veteran being exposed to gas in a chamber) occurred and to what extent that this episode would have aggravated the Veteran's pre-existing lung disease beyond its natural progression, while then concluding the Veteran's respiratory disorder was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The provisions of 38 U.S.C. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Under 38 U.S.C. § 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board finds that further development is warranted so an examiner can provide an opinion as to whether any respiratory disability was clearly and unmistakably not aggravated by service. As a result, a new opinion is required to adjudicate this claim. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and with his assistance identify any outstanding records of pertinent medical treatment from private or VA health care providers. 2. After completing the development set forth above, forward the Veteran's claims file to an appropriate medical examiner for an addendum opinion. The Veteran should be scheduled for another VA examination only if determined necessary. The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. After a review of the record the examiner should offer his or her opinion as to the following inquiry: Is there clear and unmistakable evidence that the Veteran's pre-existing respiratory disorder underwent no permanent aggravation during the Veteran's active duty military service? In rendering such opinion, the examiner should, at a minimum, specifically address the Veteran's lay reports and hearing testimony, the November 2014 VA opinion, the March 2011 opinion by Dr. N.M., and service treatment records. The examiner is invited to review the prior May 2016 Board decision for a factual recitation of the pre-service, service, and post-service respiratory findings. The examiner should explain whether any in-service findings pertaining to the respiratory system were the result of the natural progression of his pre-existing respiratory disorder, or were the result of permanent aggravation that was beyond the natural progression. The examiner must explain why. The examiner should be advised that "clear and unmistakable" evidence means with a much higher degree of certainty than "as likely as not" or "very likely." Also, the term "aggravation" means that the disability increased in severity beyond its natural progression. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completing the development requested above, in addition to any other development deemed necessary by the AOJ, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his 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 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). _________________________________________________ S. HENEKS 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).