Citation Nr: 18152981 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 14-07 442 DATE: November 27, 2018 REMANDED Entitlement to service connection for a disability manifested by shortness of breath and difficulty breathing, to include as due to undiagnosed illness, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty in the Navy from April 1989 to June 1995 and in the Army from December 2003 to April 2005, including in the Southwest Asia Theater of Operations during the Persian Gulf War from March 2004 to March 2005. He also served in the Navy Reserve from June 1995 to February 1999 and in the Army National Guard from February 1999 to January 2011 (his unit was mobilized in December 2003). This case is before the Board on appeal from a Department of Veterans Affairs (VA) April 2013 rating decision. A January 2018 Board decision, in part, denied service connection for a disability manifested by shortness of breath and difficulty breathing, to include as due to an undiagnosed illness. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (CAVC). In an August 2018 Order, the CAVC granted a Joint Motion for Partial Remand of the parties, thereby vacating the Board’s decision as to the respiratory disability claim and remanding the matter to the Board for action consistent with the terms of the Joint Motion. Entitlement to service connection for a disability manifested by shortness of breath and difficulty breathing, to include as being due to undiagnosed illness. The parties to the Joint Motion for Partial Remand have agreed that the November 2012 VA examination report, on which the Board relied in the January 2018 decision, contains contradictory findings (the report notes a diagnosis of COPD while elsewhere it notes no pulmonary disability was present) and an unclear nexus opinion (it was ambiguous as to scope and whether it applied to the alleged asthma or to all pulmonary diseases). The parties also agreed that the Board should have addressed the diagnosed COPD (whether it may be attributed to the Veteran’s service). Another VA examination or medical opinion was deemed necessary. The matter is REMANDED for the following: Arrange for the Veteran to be examined by an appropriate clinician to clarify the nature and etiology of any pulmonary disability found, or shown present any time since he filed this claim. All necessary testing should be conducted. On examination of the Veteran and review of his claims file, the examiner should: (a) Identify all pulmonary disabilities, diagnosed and undiagnosed, found or shown to have been present at any time since July 2012 (when the Veteran filed this claim); (b) regarding all undiagnosed disabilities (those that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis), provide a full description of the symptom manifestations; and (c) as to each diagnosed disability, opine whether it is at least as likely as not (a 50 percent or greater probability) that it is related to an injury, event, or disease in-service, including the alleged exposure to toxins during service in Southwest Asia from March 2004 to March 2005. All opinions must include complete rationale. The examiner should review the Veteran’s lay statements (e.g. his October 2018 letter) indicating that he has had various pulmonary problems since service (specifically, since his tour of duty in Iraq in 2004), and opine how those statements comport with generally accepted medical norms. The examiner is advised that the absence of documentation during or after service cannot be the only basis for rejecting a possible nexus to service, but providing an [alternate] likely etiology, beyond any assertion that there was no documentation of the disability in or after service, would overcome this. The examiner is advised that the November 2012 VA examination report has been deemed inadequate due to contradictory findings regarding the presence of a pulmonary condition and an unclear nexus opinion; any agreement with findings in that report must be explained with citation to supporting factual data and pertinent medical and scientific studies/literature, if possible. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel