Citation Nr: 1808153 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-34 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a lung disorder, to include bronchiectasis and asthma, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to May 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2015, the Board remanded the appeal for additional development and it now returns for further appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Pursuant to the May 2015 remand, the Veteran was afforded a VA examination in September 2015 to determine the nature and etiology of any currently diagnosed lung disorder. At such time, the examiner found that the Veteran had a diagnosis of bronchiectasis, which was a pre-existing condition, and opined that such condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. However, the Board finds that such opinion is inadequate and that a remand is warranted to obtain an addendum opinion to decide the claim. In this regard, the only rationale the examiner gave for her opinion was a review of the Veteran's service treatment records, civilian medical records, and his history and test results. She did not identify or explain what specific clear and unmistakable evidence indicated that the Veteran's currently diagnosed bronchiectasis pre-existed his military service. Additionally, the examiner opined that the Veteran's bronchiectasis did not undergo an increase in the underlying pathology during service, but that if there was an increase in severity of such disorder, then such increase was due to the natural progress of the condition. In this regard, the examiner should clarify whether or not the Veteran's bronchiectasis did in fact undergo an increase in the underlying pathology during service and if so, whether such increase was due to the natural progress of such disorder. The examiner also did not address the Veteran's currently diagnosed asthma as requested in the May 2015 remand. Thus, the Board finds that a remand is necessary to obtain an addendum opinion that addresses such concerns. Accordingly, the case is REMANDED for the following action: 1. Return the record to the VA examiner who conducted the September 2015 respiratory examination so as to obtain etiological opinions addressing the Veteran's diagnosed bronchiectasis and asthma. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the September 2015 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. After a review of the entire record, the examiner should provide an opinion on the following: (A) Is there clear and unmistakable evidence that the Veteran's currently diagnosed bronchiectasis and/or asthma pre-existed the Veteran's military service? If so, please identify and explain what clear and unmistakable evidence indicates such conclusion. (B) If there is clear and unmistakable evidence that the Veteran's currently diagnosed bronchiectasis and/or asthma pre-existed service, the examiner must opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service. If so, please identify and explain what clear and unmistakable evidence indicates such conclusion. If there was an increase in severity of the Veteran's disorders, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the conditions. (C) If there is no clear and unmistakable evidence that the Veteran's currently diagnosed bronchiectasis and/or asthma pre-existed service, then the examiner must opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorders are directly related to the Veteran's military service, to include his in-service exposure to herbicide agents. The examiner should also consider and discuss the June 1971 and February 1972 service treatment records, which documented cold symptoms and cough. A clear rationale for all opinions given is needed. A discussion of the facts and medical principles involved and the Veteran's lay assertions should be considered in offering any opinion. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If such claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran 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 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). _________________________________________________ A. JAEGER 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).