Citation Nr: 1804452 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-25 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a lung disability to include as due to an undiagnosed illness. 2. Entitlement to service connection for a heart disability to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard for many years including periods of active duty service from June 1991 to June 1992. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing in March 2017 before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the evidence of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND On appeal, the Veteran alleged that he suffers from a chronic multi-symptom illness as a result of his Gulf War service. At the hearing, the Veteran and his representative indicated there were outstanding treatment records relevant to the Veteran's claims. After the hearing, the Board received many additional treatment records, which have not been considered by VA examiners or the AOJ including updated VA treatment records from 2016-2017. While the record contains many diagnoses including asthma, pneumonia, coronary artery disease, and pericarditis, recent records contain conflicting accounts regarding the etiology of the Veteran's current symptoms. See, e.g., April 2017 Progress Notes from Loma Linda VA Medical Center (VAMC) (indicating that the Veteran does not have asthma and that his symptoms may be related to his heart condition or gastrointestinal reflux disease); April 2015 cardiology notes from Loma Linda VAMC (indicating that the Veteran's shortness of breath and fatigue cannot be attributed to his heart). At the hearing, the Veteran and his representative indicated that his VA heart examination was inadequate in part because the examiner did not consider his complete treatment history including his age at the time of diagnosis. Moreover, while the December 2014 VA respiratory examiner indicated that the Veteran's respiratory symptoms were due to asthma, the examiner did not provide adequate rationale explaining why the asthma was not related to the Veteran's service. On remand, the AOJ should afford the Veteran a new VA examination(s) with an appropriate examiner(s) to further assess the etiology of the Veteran's current symptoms including whether they are related to his Gulf War service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative and request their assistance in identifying any outstanding, relevant records from VA and private facilities. The AOJ should make reasonable attempts to obtain all relevant identified outstanding records. 2. After associating all relevant identified outstanding evidence with the record, the AOJ should schedule the Veteran for an appropriate examination(s) to determine the nature and likely etiology of the claimed heart and lung disabilities, which the Veteran asserts are chronic multi-symptom disabilities. The entire claims file including a copy of this remand must be made available to the examiner(s) for review. If the Veteran is not able to attend the examination(s), the examiner(s) should issue opinions based on the evidence of record to the extent possible. Based on the record review and any additional examination results, the examiner(s) is asked to address the following questions: a) Does the Veteran have a current, known clinical diagnosis related to his lungs and heart disability claims? The Veteran's symptoms include but are not limited to: shortness of breath, chest pain, wheezing, dizziness, muscle cramps, morning stiffness, memory problems, peripheral nerve pain, and fatigue. b) If the examiner diagnoses any current disabilities, the examiner should offer an opinion for each diagnosed disability as to whether it is at least as likely as not (a 50 percent or greater probability) that each disability was caused by or had its onset during service (June 1991 to May 1992), to include his exposure to oil fires, burn pits, and dust while serving in Southwest Asia. c) The examiner should opine whether it is at least as likely as not that the Veteran's respiratory symptoms were (1) caused by or (2) aggravated by a current heart disability. d) If no diagnoses are offered with respect to the Veteran's reported symptoms noted above, the examiner should opine (1) whether there are nevertheless objective indications of a chronic disability(lasting six months or more) related to any such complaints or symptoms, (2) at what point the objective indications of a chronic disability became manifest, (3) whether such objective indications of a chronic disability cannot be attributed to any known clinical diagnosis by history, physical examination, and laboratory tests, and (4) whether there is affirmative evidence that the objective indications of a chronic disability were not incurred during active service in the Southwest Asia theater of operations, such as by being a result of a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability. If no chronic disorder is present, regardless of etiology the examiner should so state. 3. After completing all necessary development, the AOJ should readjudicate the claims. If the benefits sought remain denied, the AOJ shall provide the Veteran and his representative with a supplemental statement of the case and return the case to the Board. 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 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).