Citation Nr: 18160810 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-44 995 DATE: December 27, 2018 REMANDED Entitlement to service connection for lumbar spine disorder, to include degenerative disc disease (DJD) of the lumbar spine, is remanded. Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), is remanded. REASONS FOR REMAND The Veteran served on active duty as a trainee from January 1975 to June 1975. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2013 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, inter alia, denied the Veteran’s claim for service connection for lumbar spine degenerative disc disease and COPD. In October 2013, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in September 2016, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that same month. The Board notes that the Veteran was represented by private agent, Christopher Loiacono; however, prior to certification of this case to the Board, Mr. Loiacono withdrew his representation via correspondence dated July 2015. The Veteran contends that his COPD is the result of in-service asbestos exposure and a lung infection treated at Fort Dix, New Jersey. The Veteran also contends that his arthritis is related to an in-service injury suffered after falling from the back of a truck at Fort Dix, New Jersey. The Veteran reports that he was hospitalized at Fort Dix for treatment during service. The Veteran’s service treatment records (STRs) are silent for any complaints, treatment or diagnoses related to the Veteran’s two claims. There is no separate record of hospitalization while in service. Accordingly, on remand, the AOJ should specifically request any hospitalization or treatment records for the Veteran from the hospital on Fort Dix from January 1975 to June 1975. The Veteran did not undergo VA examination specifically in connection with these claims, however, the SOC did reference the Veteran’s April 2014 VA examination completed in connection with the Veteran’s pension claim. The SOC notes that the examiner opined that the Veteran’s claimed conditions were less likely than not incurred in or caused by service. However, the examiner failed to discuss the Veteran’s contentions or to provide a complete, clearly-stated rationale that was not merely conclusory. Accordingly, the Board finds that the medical evidence of record is insufficient to resolve the claim and further examination and opinions are necessary. Therefore, on remand, the AOJ should arrange for the Veteran to undergo VA examinations in connection with his claims for entitlement to service connection for COPD and lumbar spine DJD. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, on remand, the Board also finds that any outstanding VA and private 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 matters are hereby REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Detroit VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Undertake all appropriate action to obtain from Fort Dix, New Jersey any records of hospitalization or treatment of the Veteran from 1975. Follow the procedures set forth in 38 C.F.R. § 3.159 regarding requests for records from federal facilities. All records and/or responses received should be associated with the claims file. 3. Ask the Veteran to identify any private treatment that he may have had for his respiratory and lumbar spine disorders, 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. 4. Arrange for the Veteran to undergo VA examination by an appropriate physician. The examiner should address the etiology of the Veteran’s lumbar spine degenerative disc disease. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. The physician should provide opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine degenerative disc disease had its onset during or is otherwise medically related to the Veteran’s service. In addressing the above, the physician must consider and discuss all medical and other objective evidence of record. The physician must also consider and discuss all lay assertions, to specifically include the Veteran’s assertion of in-service injury due to falling from a truck and the Veteran’s assertions as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of a specific spine disability and/or associated symptoms during or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating the requested opinion(s). If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. Arrange for the Veteran to undergo VA examination by an appropriate physician. The examiner should address the etiology of the Veteran’s COPD. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. The physician should provide opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s COPD had its onset during or is otherwise medically related to the Veteran’s service. In addressing the above, the physician must consider and discuss all medical and other objective evidence of record. The physician must also consider and discuss all lay assertions, to specifically include the Veteran’s assertion of in-service asbestos exposure and lung infection and the Veteran’s assertions as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of a specific lung disability and/or associated symptoms during or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating the requested opinion(s). If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacqulyn Lane, Associate Counsel