Citation Nr: 18147666 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 18-08 274 DATE: November 5, 2018 REMANDED Entitlement to service connection for respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1986 to April 1990 and from October 1993 to May 2016, which includes service in Southwest Asia. His awards include the Army Commendation Medal, Bronze Star Medal, and Joint Service Commendation Medal. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision. The Veteran contends that he has respiratory disability which had its onset in service. His service treatment records document various instances of treatment for respiratory symptoms and he contends that he has continued to experience respiratory symptomatology in the years since service. VA respiratory examinations were conducted in March 2016 and January 2018. The physician who conducted the March 2016 examination concluded that the Veteran did not have any respiratory disability at the time of the examination because the examination was normal and he had not taken any respiratory medications since 2013. The nurse practitioner who conducted the January 2018 examination reported that the Veteran was asymptomatic at the time of the examination and that there was only evidence of subjective symptoms that were reported by the Veteran, which included intermittent shortness of breath with exertion. The January 2018 examiner opined that the Veteran’s claimed disability was not likely incurred in or caused by service. She reasoned that while the Veteran was diagnosed as having COPD during service, there was no documentation that there was continued care and treatment for at least 4 years. Hence, a nexus had not been established. The examiner also noted that a May 2017 VA primary care treatment note indicated that the Veteran had a history of COPD, but that the condition was stable and that he was not taking any medication. The March 2016 and January 2018 examinations are inadequate because it is unclear as to whether the Veteran has experienced any respiratory disability during the claim period. In this regard, the Board points out that the requirement for current disability is satisfied if there is evidence of the disability at any time during the claim period (since approximately February 2016 in this case), even if the disability is currently in remission or has completely resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2008). Although the examiners concluded that the Veteran did not have any such disability at the time of the examinations, the reference to the May 2017 VA treatment record appears to indicate that although he was not being treated for any respiratory disability, he may have still been experiencing COPD that was stable. Moreover, his claim of service connection for respiratory disability was received in February 2016 and his service treatment records include a diagnosis of COPD as recently as December 2015. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (the Board erred in failing to address pre-claim evidence in assessing whether a current disability existed for purposes of service connection, at the time the claim was filed or during its pendency). Additionally, even if the Veteran has not experienced a diagnosed respiratory disability during the pendency of his claim, he served in the Southwest Asia theater of operations during service and signs or symptoms involving the respiratory system may be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness. See 38 C.F.R. § 3.317. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for respiratory disability because no VA examiner has adequately opined as to the nature and etiology of any current respiratory disability. Hence, an appropriate VA examination should be conducted upon remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are dated to September 2017. Thus, on remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for his respiratory disorder, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain any and all VA treatment records not already associated with the claims file from the Fayetteville VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any current respiratory disability. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all respiratory disorders found, to include chronic obstructive pulmonary disease (COPD). In assessing whether the Veteran has any current respiratory disorder, the examiner should discuss the noted in-service diagnosis of COPD, as well as the post-service VA treatment records, particularly in May 2017, noting a history of stable COPD. If the examiner does not find any current disorder or symptoms due to respiratory dysfunction, the examiner should discuss whether the Veteran had any respiratory disorder at any time since discharge from service. Additionally, if the examiner is unable to find a current respiratory condition, the examiner should additionally address whether any reports of respiratory symptomatology which is not otherwise accounted for by a diagnosed condition, including intermittent shortness of breath, is a qualifying chronic disability due to either an undiagnosed illness or a chronic multisymptom illness under the provisions of 38 C.F.R. § 3.317. For any identified respiratory disorders found, including COPD and/or any resolved disorders, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include the several instances of treatment during service for respiratory problems as well as his service in Southwest Asia under the provisions of 38 C.F.R. § 3.317. In addressing the above, the examiner should consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel