Citation Nr: 1820571 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-17 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include scarring of the lungs. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1977 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This matter was previously before the Board in November 2015 and was remanded for a Board hearing. Subsequently, in May 2017, the Veteran appeared and testified at a video Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. For the reasons set forth below, this appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for a respiratory disorder, to include scarring of the lungs, and for an acquired psychiatric disorder, to include depression and PTSD. The Board finds that a remand of both issues is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. The Veteran was provided a VA examination for his respiratory condition in February 2013. The Veteran reported that he contracted pneumonia in boot camp, which he believed made him susceptible to other diseases. The VA examiner noted that the Veteran did not have a diagnosed respiratory condition. The examiner also noted a "normal" chest x-ray. However, during the Veteran's May 2017 Board hearing, the Veteran indicated that the wrong side of his chest was examined. Additionally, the Veteran's VA out-patient treatment records reflect emergency treatment in April 2013 for pneumonia, and additional reports of chest pain and coughing, subsequent to the February 2013 VA examination. Given these circumstances, as well as it appears the Veteran was treated for pneumonia in April 1977, and that when examined in connection with his service discharge, there was an indication he had been exposed to tuberculosis, ("Reactive PPD - treated with INH") it is reasonable to re-examine the Veteran to determine if there is any current respiratory disorder that may be linked to service. With respect to an acquired psychiatric disorder, in January 2014 (a few weeks subsequent to the issuance of the Statement in the Case), the Veteran submitted a statement detailing what he considered PTSD stressors, which included indications of military sexual trauma. The RO did not issue a subsequent rating decision or supplemental statement of the case taking into consideration this newly submitted information, and he was not provided notice of the applicable provisions of VA regulations that apply in such cases. See 38 C.F.R. § 3.304(f)(5) (2017). This notice should be provided, and any further indicated development should be accomplished prior to the Board's consideration of this issue. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records related to the claims on appeal. 2. After all available medical records have been associated with the claims file, schedule the Veteran for a VA examination for the purposes of ascertaining the nature and etiology of any respiratory condition he may have, to include scarring of the lungs. The entire claims file should be made available to the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. After the record review and a thorough examination and interview of the Veteran, the VA examiner should offer an opinion, with supporting rationale, as to the following inquiry: Regarding any diagnosed respiratory condition, whether it is at least as likely as not (a probability of 50 percent or greater) that such disability was caused by a disease or injury sustained in service. In offering the opinion, the examiner should comment on the significance of the treatment of pneumonia in 1977, and the "Reactive - PPD" noted on the examination conducted in connection with the Veteran's service discharge. A complete rationale for all opinions should be provided. If the examiner cannot provide the above requested opinion without resorting to speculation, it should be so stated and a rationale provided for that medical conclusion. 3. Provide the Veteran with notice of the information and evidence necessary to substantiate a claim for service connection for PTSD based on in-service military sexual trauma and personal assault. See 38 C.F.R. § 3.304(f)(5). Additionally, the Veteran should be afforded the opportunity to identify or submit any additional pertinent evidence. 4. Perform any additional development, to include a psychiatric evaluation regarding an acquired psychiatric disorder, if deemed necessary. 5. Thereafter, readjudicate the issues on appeal based on all the evidence of record, including the Veteran's January 2014 statement, and if any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case. The Veteran should be provided a reasonable period to respond before the case is returned to the Board for review. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ MICHAEL E. KILCOYNE 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).