Citation Nr: 21000754 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-01 657 DATE: January 6, 2021 REMANDED Entitlement to service connection for a respiratory condition is remanded. Entitlement to compensation for a kidney condition under 38 U.S.C. § 1151 is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1972 to March 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions, dated December 2015 and October 2016, issued by a Department of Veterans Affairs (VA) Regional Office. In March 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See March 2020 Board Hearing Transcript. As an initial matter, the Board notes that, generally, when a claim is disallowed by the Board, a claim based upon the same factual basis may not be considered absent new and material evidence or clear and unmistakable error. See 38 U.S.C. § 5108, 5109A, 7104(b), 7111. However, the “factual basis” of a claim is the veteran’s disease or injury, not the symptoms thereof. Moreover, a properly diagnosed disease or injury is not the same factual basis as a different distinctly diagnosed disease or injury, and therefore, claims based upon different distinctly and properly diagnosed disease or injuries are not considered the same claim. See Boggs v. Peake, 520 F. 3d 1330, 1335 (Fed. Cir. 2008). Here, in a September 2015 VA Form 21-526EZ, the Veteran filed a claim seeking service connection for residuals of upper respiratory problems. However, the Board notes that the record indicates that the Veteran previously sought service connection for emphysema, which included chronic obstructive pulmonary disease (COPD). That claim was denied in an October 2008 rating decision, which became final when the decision was not appealed within the applicable appellate period. Nonetheless, the record indicates that, in addition to emphysema and COPD, the Veteran has current diagnoses of chronic small airways disease, nocturnal dyspnea with hypoxemia, and chronic airway obstruction. See Atlanta VA Medical Center (VAMC) records, received December 2017 in CAPRI. While these diagnosed respiratory conditions may share symptomatology with emphysema and COPD, they are distinct and properly diagnosed conditions. Accordingly, the Board finds that the Veteran’s claim of entitlement to service connection for residuals of upper respiratory problems is not based on the same factual basis as the previously disallowed claim of entitlement to service connection for emphysema. As such, the claim is a new claim and is properly before the Board. See Boggs v. Peake, supra. REASONS FOR REMAND As an initial matter, the Board notes that the Veteran filed a claim of entitlement to service connection for residuals of upper respiratory problems. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, as discussed above, the Veteran has been diagnosed with chronic small airways disease, chronic airway obstruction, and nocturnal dyspnea with hypoxemia. See Atlanta VAMC records. Accordingly, the Board finds it appropriate to recharacterize the Veteran’s claim as one of entitlement to service connection for a respiratory condition. 1. Entitlement to service connection for a respiratory condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. Specifically, a remand is warranted to afford the Veteran with a VA examination to determine the nature and etiology of his claimed respiratory condition. A medical examination is necessary when there is (1) “competent evidence of a current disability or persistent or recurrent symptoms of a disability,” (2) evidence establishing an in-service “event, injury, or disease,” and (3) an indication that the disability or symptoms may be associated with service or with another service-connected disability, but (4) insufficient medical evidence of record for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Here, the first McLendon factor has been met, as the Veteran’s medical records indicate that he has current diagnoses of emphysema, COPD, chronic small airways disease, and nocturnal dyspnea with hypoxemia. See Atlanta VAMC records. Further, the fourth McLendon factor has been met, as no medical opinion regarding the nature and etiology of the Veteran’s respiratory condition is of record. With respect to the second and third McLendon factors, the Veteran’s service treatment records (STRs) note treatment for upper respiratory infections in November 1972 and October 1973. See STR-Medical. Additionally, the Veteran has asserted that his current respiratory problems are the same as what he experienced in service. See March 2020 Board Hearing Transcript. As such, the Board finds that the second and third McLendon factors have been met. Therefore, the Board finds that, as the McLendon requirements have been met, a remand is necessary to provide the Veteran with a VA examination to determine the nature and etiology of his claimed respiratory condition. Additionally, the Board notes that the Veteran’s service personnel records have not been associated with the claims file. As there is a possibility that pertinent service records are extant and not associated with the file, a remand is necessary to afford the AOJ an opportunity to obtain and associate these records with the claims file. 2. Entitlement to compensation for a kidney condition under 38 U.S.C. § 1151 is remanded. The Veteran contends that he is entitled to compensation for a kidney condition under 38 U.S.C. § 1151. Specifically, the Veteran asserts that the Dublin VAMC prescribed ibuprofen, which caused his current chronic kidney disease. See March 2020 Board Hearing Transcript. The Veteran’s medical records indicate that he was diagnosed with stage 1 chronic kidney disease in May 2008, was treated with ibuprofen between January 2010 and June 2012, and currently has end stage renal disease. See Dublin VAMC records, received September 2016 in CAPRI; Atlanta VAMC records. The medical records also indicate that the Veteran was instructed to avoid nonsteroidal anti-inflammatory drugs (NSAIDs). See Kidney Center of Central Georgia records, received May 2016. The Board notes that no VA examination has been provided to determine whether the Veteran has an additional disability that is directly and causally related to VA medical care received by the Veteran. There is also no medical opinion regarding whether (i) VA failed to exercise the degree of care that would be expected of a reasonable care provider or (ii) VA furnished the care without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. Further, there is no medical opinion regarding whether a reasonable health care provider would have foreseen any additional disability as a result of his treatment with ibuprofen. Accordingly, a remand is necessary to obtain an opinion as to whether the Veteran has an additional disability under 38 U.S.C. § 1151 due to his treatment with ibuprofen, and if so, whether in furnishing that course of treatment VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Additionally, the Board notes that the record reflects that there may be pertinent medical records, of which VA is aware, that are not associated with the claims file. Specifically, the record shows that the Veteran received treatment for his kidney condition from Kidney Center of Central Georgia. However, no records relating to such treatment have been associated with the claims file since May 2016. As such, while on remand, the AOJ should attempt to obtain any outstanding records relating to such treatment. See 38 U.S.C. § 5103A(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Lastly, the Board notes that the Veteran has a current diagnosis of hypertension. If the Veteran believes that his hypertension is related to his active duty service, the Veteran is advised that he should file a claim for such. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, obtain and associate with the claims file: (a.) the Veteran’s service personnel records; (b.) any outstanding VA medical records, to include records from Cleveland VAMC from July 2009 to current, Augusta VAMC from October 2015 to current, Dublin VAMC from May 2016 to current, and Atlanta VAMC from December 2017 to current; (c.) any pertinent private medical records, to include records relating to treatment at Kidney Center of Central Georgia. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination below. 3. After completing the above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s claimed respiratory condition. The entire claims file must be provided to and reviewed by the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s lay in-service and post-service history, including onset and progression of symptomatology and employment. (b.) For each diagnosed respiratory condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran’s active duty service, INCLUDING HIS TREATMENTS FOR UPPER RESPIRATORY INFECTIONS IN NOVEMBER 1972 AND OCTOBER 1973. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After completing the development in Section 1 above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician, preferably one specializing in nephrology, regarding the Veteran’s chronic kidney disease. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s lay history, including onset and progression of symptomatology. (b.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran has had an additional disability due to his VA treatment from January 2010 and June 2012, including the use of ibuprofen. The examiner is asked to specifically address whether the Veteran’s chronic kidney disease underwent an incremental increase (aggravated), regardless of permanence, due to his VA treatment from January 2010 and June 2012, including the use of ibuprofen. (c.) If, and only if, the Veteran’s chronic kidney disease underwent an incremental increase or otherwise has additional disabilities due to his VA treatment, address the following: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA’s part (i.e. did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider). ii. Based upon the specific facts and circumstances of this Veteran’s case, was such additional disability a reasonably foreseeable outcome of the Veteran’s VA treatment. iii. Whether a reasonable healthcare provider would have considered the Veteran’s additional disability to be an ordinary risk of the treatment provided and would have disclosed such risk related to the treatment, regardless of what risks the treating physician foresaw and disclosed in any informed consent forms. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 5. The AOJ must review the claims file and ensure that the foregoing development action hs been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.