Citation Nr: 1805707 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 08-29 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a respiratory disorder, including bronchitis/asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1957 to September 1959 and from September 1959 to March 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 and August 2009 rating decisions of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the Veteran testified at a Travel Board hearing. A transcript of the testimony offered at the hearing has been associated with the record. In June 2017, this matter was last before the Board, at which time it was remanded for further development. 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) (2002). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In June 2017, the Board remanded the matter, inter alia, to obtain an addendum to a March 2017 VA medical examination report. Repeated VA examinations have resulted in impressions of no chronic or current respiratory disorder. However, the March 2017 VA examination report was ambiguous, and the Board remanded the claim to obtain a clarifying addendum opinion. The Board directed that the March 2017 VA examiner should offer the opinion, unless unavailable. The March 2017 VA examiner was apparently unavailable, and in August 2017, the Veteran received a new VA examination. The report notes that the pertinent evidence was reviewed, and the VA examiner assessed asthma based on a history offered by the Veteran. The examiner did not address any of the prior examinations or records, which notably question the assessment of any respiratory disorder. The examiner did not conduct pulmonary function testing (PFTs) or obtain a chest x-ray. The examiner concluded it less likely than not that asthma was incurred in, or attributable to service, and could not otherwise address etiology without resorting to speculation. VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121,124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. The June 2017 VA examination is judicially inadequate. The examiner did not address the pertinent evidence, including the history of VA examinations that have all but ruled out chronic or current respiratory disease. Moreover, the examiner did not conduct PFTs or obtain chest x-rays, and the prior VA examinations address such evidence. The examiner did not offer the Board's requested opinion regarding the March 2017 VA examination. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the examination report is returned. 38 C.F.R. § 4.2. 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. Schedule the Veteran for a new VA examination by an appropriate medical professional for the purpose of ascertaining the current nature and likely etiology of his claimed respiratory condition. The examiner must specifically address whether the Veteran has had a respiratory disorder at any time during the appeal period (since December 30, 2008), and if so, whether it is at least as likely as not (a 50percent or greater probability) that any respiratory disorder found is related to the Veteran's period of service. The examiner should specifically comment on what may have caused the Veteran's reduced lung volume noted during his March 2017 pulmonary function testing besides obesity, including whether any reduced lung volume is due to any respiratory disorder. NOTE: The Veteran is claiming that he has a respiratory disorder attributable to service. He has reported that he was hospitalized on three separate occasions in service for treatment of pneumonia; however, records of these hospitalizations are unavailable. The Veteran is competent to relate this history, and the examiner should consider it in offering any opinion. The Veteran has also reported respiratory symptoms in and since service. Private medical records indicate assessments of asthma and/or COPD. In 2008, a private medical professional attributed "chronic bronchitis and asthma symptoms" to service, but also documented a history of symptoms related to smoking in 1995. VA examinations indicate an absence of any respiratory disability. The claims folder and a copy of this Remand should be made available to the medical professional. The examiner must review the record, giving particular attention to the service treatment records, lay assertions, and the pertinent medical evidence. A notation to the effect that this record review took place shall be included in the report of the examiner. A rationale for all opinions should be provided. 2. After completing the requested action, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a Supplemental Statement of The Case (SSOC) and afford an appropriate time period for response before the appeal is returned to the Board. 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 A. PAPPAS 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) (2016).