Citation Nr: 21062603 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 18-12 520 DATE: October 8, 2021 REMANDED Entitlement to service connection for residuals of respiratory failure is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2007 to August 2015. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2021, a transcript will be added to the Veteran's file under the normal course of business. 1. Entitlement to service connection for residuals of respiratory failure. First, during his hearing the Veteran reported that he currently receives treatment for his respiratory issues through VA. As the Veteran has indicated that there are outstanding relevant VA treatment records, the claim must be remanded so that attempts may be made to obtain them. 38 C.F.R. § 3.159(c)(2); see Sullivan v. McDonald, 815 F.3d 786, 79092 (Fed. Cir. 2016). Second, in conjunction with his claims the Veteran was provided with VA respiratory and infectious disease examinations in June 2015. The respiratory examiner noted that the Veteran was treated for an infectious disease in service, but stated that the Veteran did not have a current diagnosis of a respiratory disability and that the disability had resolved. However, the examiner noted that the Veteran's pulmonary function testing (PFT) results showed that his forced expiratory volume in one second (FEV-1), which the examiner stated was the most representative of current lung functioning, was 70 percent predicted pre-bronchodilator and 72 percent predicted post-bronchodilator, which is a compensable level of impairment under several lung diagnostic codes. See 38 C.F.R. § 4.97, Diagnostic Codes 6600, 6604, 6824, 6845. The examiner did not provide an explanation for the lowered PFT results or opine as to their cause. The infectious disease examiner noted that that the Veteran was diagnosed with thoracic actinomycosis in 2011. The examiner further noted that the disease, specifically actinomycosis meyeri, had been inactive since late 2011. The examiner then stated that the Veteran had residual symptoms attributable to the disease, but noted only the already service-connected painful scars. As such, there appears to be a slight disconnect between the examination reports, as the respiratory examiner noted PFT results that could be considered disabling but no respiratory disability, and the infectious disease examiner noted that there were residuals of the Veteran's in-service thoracic actinomycosis but did not address the noted abnormal PFT results. Therefore, the Board finds that a remand is warranted to determine whether the Veteran's abnormal PFT results are causally related to his in-service thoracic actinomycosis and acute respiratory failure, or subsequent treatment therefor. 38 C.F.R. § 3.159(c)(4). Third, the Board notes that during his October 2021 hearing the Veteran reported that he had been told by his doctors that he had nerve damage as a result of his infectious disease and acute respiratory failure, specifically from the surgeries done to treat his infectious disease. As such, while on remand a neurologic examination should be performed to determine the nature and etiology of any neurologic disabilities. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed residuals of acute respiratory failure. The examiner should answer the following: a) Identify all current respiratory disabilities or pulmonary abnormalities. In answering question (a), attention is invited to the Veteran's decreased PFT results contained in the June 2015 respiratory examination, and the Veteran's testimony concerning shortness of breath and other symptoms since service. b) For all disabilities or abnormalities identified, Is it at least as likely as not (a fifty percent probability or greater) that the disability or abnormality is causally related to the Veteran's active service, to include the Veteran's in-service infectious disease and acute respiratory failure, as well as treatment therefor? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's reported neurologic residuals of his acute respiratory failure. The examiner should answer the following: a) Identify any current neurologic disabilities. b) For all disabilities so identified, is it at least as likely as not (a fifty percent probability or greater) that the disability is causally related to the Veteran's active service, to include is infectious disease, acute respiratory failure, or treatment therefor? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.