Citation Nr: 1806768 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-30 651A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease (COPD) and sleep apnea, to include as due to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD F. Bulger, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This matter was previously remanded by the Board for additional development in September and February 2017. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2016. The undersigned discussed with the Veteran the requirements for substantiation of the claim on appeal, as well as identification of any outstanding relevant evidence. See Bryant v. Shinseki, 23 Vet. App. 488, 496-497 (2010). A transcript of that hearing is of record. 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) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In September 2017, the Board remanded this matter specifically to obtain medical records prior to 2009 and a supplemental medical opinion that considers the Veteran's competent statements of episodes of dyspnea since service. The RO obtained records from various VA medical facilities, including records from the Marion VA Medical Center from June 2009 to April 2004, and attached them to the claims file. In November 2017, the VA examiner provided a supplemental opinion that did not comply with the Board's September 2017 remand directives. Despite a specific Board directive, the examiner failed to address the Veteran's contentions of shortness of breath since service, as well as indications in the medical record of dyspnea occurring before July 2008. The examiner continued to rely on her conclusion that the Veteran first reported shortness of breath in 2012, even though treatment records for dyspnea from 2004 and 2008 show that the Veteran reports at that time that dyspnea is "not a new problem." The Veteran's Board hearing testimony establishes that he regularly had acute difficulty breathing after exposure to high levels of irritating dust and floating fibers while cleaning the ship's steam room pipes and requested first aid treatment at the time, and that he has continued to experience shortness of breath since separation from service. His wife's statements at the Board hearing also indicate the long-standing nature of the Veteran's dyspnea. Moreover, the record contains evidence of an allergic rhinitis diagnosis in 2004 and indications of possible early-stage emphysema and obstructive pulmonary disease in private treatment records from 2013 and 2014 that were not addressed by the VA examiner's opinion. Given the 2013 medical impression of possible early stage COPD and medical evidence that the Veteran's ability to breathe normally is compromised, the Board requests a medical opinion on whether the Veteran has COPD, and, if so, whether this COPD is etiologically related to his in-service exposure to dust, lung irritants and asbestos. Finally, the November 2017 supplemental opinion indicates that cardiomegaly can cause dyspnea, but fails to conclude whether the Veteran's dyspnea is more likely than not caused by his cardiomegaly. Because of the deficiencies in the medical opinion related to dyspnea and the significance of this issue to the Veteran's claim, the Board finds that the RO has not substantially complied with the Board's prior remand directives and this matter must be remanded for additional development. See Stegall v. West, 11 Vet. App. 268 (1998). 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. Contact the Veteran to determine whether he has had any additional private medical treatment related to his respiratory disability since 2014, and if so, request that he identify those providers and authorize release of those records. If records from these private providers cannot be obtained after reasonable efforts, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). Update the VA medical treatment records associated with the claims file to ensure that all outstanding relevant medical records are included. All attempts to obtain these records must be documented in the claims file. 2. Forward the updated claims file and this remand to an appropriate VA clinician. Direct the examiner to review the updated claims file and this Board remand, and provide an opinion, supported by a complete rationale, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's has a chronic respiratory disability, to include COPD and/or dyspnea, that is caused by or etiologically related to his military service, to include exposure to asbestos, dust and other respiratory irritants when cleaning pipes. If additional examination of the Veteran is deemed necessary by the clinician to provide the requested opinion, such examination should be scheduled, to include the conduct of any necessary diagnostic tests to determine whether the Veteran has COPD. In providing rationale for the opinion requested, the examiner must reconcile his/her opinion with the evidence in the record that the Veteran has experienced dyspnea since service, and the November 2017 supplemental opinion that cardiomegaly can cause dyspnea, to include whether such is of importanc in this case. 4. After completing the above development, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). _________________________________________________ U. R. POWELL 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).