Citation Nr: 19107635 Decision Date: 01/31/19 Archive Date: 01/31/19 DOCKET NO. 17-50 279A DATE: January 31, 2019 ORDER Entitlement to service connection for left breast mass is granted. REMANDED Entitlement to a compensable initial rating for chronic obstructive pulmonary disease (COPD) with chronic bronchitis and recurrent pneumonia is remanded. FINDING OF FACT The evidence shows that the Veteran currently has left breast mass that was incurred during active duty service. CONCLUSION OF LAW The criteria for service connection for left breast mass have been met. 38 U.S.C. §§ 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1956 to December 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of August 2015 and August 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for left breast mass. The Veteran contends that he had a lump removed from his left breast while stationed in Germany in 1956. He states that this condition is chronic and recurred many times, approximately every 5 to 8 years, which require surgeries to remove and/or remove the mass. He has reported that the initial surgical removal was performed at the U.S. Army Base in Straubing, Germany and subsequent treatments to drain fluid from his chest were done at the Zirndorf and Munich Army Base in Germany. Initially, the Board notes that the Veteran’s service treatment records from his period of active service are fire-related and unavailable. In a June 2011 memorandum, VA made a formal finding that the Veteran’s service treatment records were unavailable. In cases where service treatment records are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s left breast mass has been undertaken with these heightened duties in mind. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A September 2014 Breast Conditions and Disorders Disability Benefits Questionnaire (DBQ)from the Veteran’s private physician, Dr. B.J. shows that the Veteran has a current diagnosis of left breast mass with possible nerve damage around the breast area and residual scars. The Veteran reported he had a left breast mass while stationed in Germany from 1956 to 1957 and the growth was removed and drained multiple times. Since that time, the condition has recurred every 5 to 8 years. Thus, the question becomes whether the current disability is related to service. On this question, there is a probative opinion in favor of the claim. In a September 2014 opinion letter, Dr. B.J. who is known to be the Veteran’s private primary physician for the past 20 years stated that the Veteran has a history of recurrent left breast mass and his initial breast mass diagnosis and surgeries were completed while on active military duty during the 1950s. Since that time, he has had ongoing treatments for the diagnosis, including surgeries to drain/remove his recurrent breast mass. Dr. J. concluded that “[i]t is more likely than not that his medical conditions began during his active duty years.” The Board finds the foregoing opinion to be persuasive in light of the reported history provided by the Veteran, as well as the physician’s expertise in this matter. Accordingly, after resolving all doubt in favor of the Veteran, as VA is required to do, the Board finds that service connection for left breast mass is warranted. 38 U.S.C. 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to a compensable initial rating for chronic obstructive pulmonary disease (COPD) with chronic bronchitis and recurrent pneumonia is remanded. The Board regrets further delay, but additional development is necessary to decide this case. Because the Veteran’s lung condition is COPD with chronic bronchitis, pulmonary function testing (PFT) is required to determine the disability rating. See 38 C.F.R. § 4.96(d)(1) (2018). The Veteran was provided for a VA examination in September 2017. The PFT results from September 2017 revealed a Forced Vital Capacity (FVC) of 63%, Forced Expiratory Volume in one second (FEV-1) of 69%, and the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 79%. The examiner stated that the FEV-1/FVC test result most accurately reflected the Veteran’s level of disability. The Veteran questions this statement and requests a rationale for this conclusion. Further, the examination report indicated that the Veteran stated he was not taking any treatment for lung problems currently and not had any exacerbation in one year. It was also noted that the Veteran’s respiratory condition did not require the use of antibiotics. However, in his November 2018 substantive appeal, the Veteran reports that in fact, he was taking antibiotics at time of the VA examination and he also takes daily medication required for his COPD and bronchitis. The Veteran’s wife submitted a list of medications in November 2018. The Veteran further argues that the Veteran’s respiratory symptoms need to be evaluated during an active phase, to include hospitalization due to pneumonia. In light of the Veteran’s contentions that his current level of disability was not accurately reflected on the most recent VA examination and his symptoms are worse during active phases, a PFT result from an examination during an active phase is necessary to capture an accurate picture of the Veteran’s disability. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994) (finding that where there is a history of remission and recurrence of a condition, the duty to assist encompasses the obligation to evaluate a condition during an active phase). In order to assist the Veteran, he should also be notified that he may seek treatment for his respiratory condition during an active phase when it is worse so that his increased symptoms are documented to support his claim. Finally, the Board observes that the record does not include any treatment records relating the reported hospital stays or any outpatient treatments for the Veteran’s respiratory conditions, to include pneumonia for the rating period on appeal. In November 2018, the Veteran submitted a copy of medical insurance explanation of benefits report which purportedly shows that he visited the emergency room and hospitalized due to a flare-up of pneumonia in March 2018. However, the hospital records submitted for these dates reflect that the Veteran was seen in the emergency room for back pain. Concerning this, in May 2016, the Veteran submitted a VA Form 21-4142, Authorization to Release, which indicates that he received treatments at Detroit Medical Center, St. Johns Hospital, St. Johns Hospital, Macomb, and Dr. B.J. Subsequently, in an August 2016 letter, the RO notified the Veteran that the VA Form 21-4142 submitted in May 2016 was not valid as it did not contain a valid date and requested that the Veteran should sign, date, and resubmit the form. However, the Veteran has not yet resubmitted this form. See Baker v. West, 11 Vet. App. 163, 169 (1998) (holding that when VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records); Hayes (Gerald) v. Brown, 9 Vet. App. 67, 73-43 (1996) (quoting Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992)). Thus, on remand, the RO must make further effort to obtain the Veteran’s treatment records relating to his respiratory condition. The matter is REMANDED for the following actions: 1. The RO must request that the Veteran identify all non-VA medical providers who have treated him for his COPD with chronic bronchitis and recurrent pneumonia since 2014. The RO must then obtain copies of the identified medical records that are not already in the claims folder. In particular, the Board is interested in obtaining all private treatment records from the Detroit Medical Center: Detroit Receiving Hospital, St. Johns Hospital, St. Johns Hospital, Macomb, and the Veteran’s primary care physician, Dr. B.J. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim, and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Send the Veteran a letter advising him that he can seek treatment from his physician during an active phase or flare-up when his condition is worse to have the increased symptoms of his respiratory disability documented and used to support his claim. 3. Schedule the Veteran for a VA examination to determine the severity of the service-connected respiratory disability. The examination should be scheduled during the active phase. The Veteran’s claims file must be made available to the examiner for review in connection with the examination. The examination must include a PFT and the reported results must include findings for FVC and DLCO (SB) (unless the examiner states why DLCO testing would not be useful or valid), and maximum oxygen consumption. If the examiner finds that a particular test result most accurately reflects the Veteran’s level of disability, the examiner must state the reason why. The examination report must include pre-bronchodilator and post-bronchodilator studies unless the examiner determines that post-bronchodilator studies should not be done and states why. A complete rationale should be provided for all opinions. 4. After completing the above, readjudicate the claim. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel