Citation Nr: 0706148 Decision Date: 03/02/07 Archive Date: 03/13/07 DOCKET NO. 02-10 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) as secondary to asthma. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for right index finger injury. 4. Whether there was clear and unmistakable error (CUE) in a November 7, 1977 rating decision that denied service connection for a right index finger injury. REPRESENTATION Appellant represented by: David L. Huffman, Attorney at Law WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from November 1973 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The veteran's attorney submitted additional evidence, consisting of approximately 721 pages of medical records, to the RO in June 2006. The RO forwarded the evidence to the Board where it was received in July 2006. See 38 C.F.R. § 19.37(b) (2006). The attorney did not submit a waiver with the evidence. The agency of original jurisdiction will have an opportunity to address the evidence in the first instance for the issues remanded for additional development. 38 C.F.R. § 20.1304(c). The issues of service connection for COPD, as secondary to asthma, and whether new and material evidence has been received to reopen a claim for service connection for a right index finger injury are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran was diagnosed with, and treated for severe asthma, as a toddler. 2. The evidence shows that the veteran's experienced either occasional symptoms or was asymptomatic after that, until his military service. 3. The veteran's asthma was aggravated in service. 4. The veteran was denied service connection for a right index finger injury by way of a November 7, 1977, rating decision. The veteran did not perfect an appeal of the decision. 5. The veteran has not successfully alleged that either the correct facts as they were known at the time of the November 7, 1977, rating decision that denied service connection for a right index finger injury were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. CONCLUSIONS OF LAW 1. The veteran's asthma preexisted military service but was aggravated during military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. § 3.306(b) (2006) 2. The veteran's claim of CUE in the November 7, 1977, rating decision that denied service connection for a right index finger injury is not a valid CUE claim. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes the veteran provided testimony on the asthma/COPD issues before a different Veterans Law Judge in June 2004. That Veterans Law Judge is no longer with the Board. Regulations require that a judge that holds a hearing is to participate in the decision. 38 C.F.R. § 20.707 (2006). Normal procedure, when a judge is no longer available to participate in a decision, is to offer the veteran an opportunity for a new hearing. Although the veteran was not afforded explicit notice of the prior judge's unavailability, he was provided a second hearing on the same issues. Thus there is no prejudice to the veteran in the Board's adjudication of his asthma/COPD issues at this time. I. Service Connection for Asthma Background Evidence of record shows that the veteran was hospitalized on three occasions for treatment of severe asthmatic bronchitis in 1957, beginning when he was approximately 14 months old. He was hospitalized in July, September, and November 1957, respectively. There are no other records of treatment for asthma prior to the veteran's military service. The veteran served on active duty from November 1973 to April 1977. The veteran did not report any history of asthma at the time of his entrance physical examination in November 1973. No evidence of asthma was found at the time of the examination. The veteran was seen at sick call in December 1973. He complained of an asthma problem his whole life. The assessment was history of asthma. The veteran was seen in October 1974 after he fell out from doing physical training and complaining of chest pain. The impression was an upper respiratory infection (URI). The veteran was seen again in January 1975 with complaints of difficulty with inspiration for one year. The clinician noted that the veteran had a history of asthma as a small child. The impression was viral URI. A February 1975 entry also diagnosed a URI. The veteran was assigned to a unit at Okinawa in 1975. There is a light duty chit that said the veteran was not to do any running. He was reevaluated for his no running chit in August 1975. The medical officer said that the veteran seemed to have a long history of documented asthma that was treated with various drugs, including Prednisone. The medical officer recommended that the veteran refrain from running. The veteran had an internal medicine consult on September 14, 1976. The physician said the veteran described severe asthma since early childhood and continuing throughout adolescence, but to a lesser degree. The physician said that this required two to three emergency room visits. The impression was asthma of mixed etiology, possibly exercise induced. The physician said that the veteran was not fit for active duty. However, if he could perform his full duties on normal medication, there was no reason he could not remain on active duty until completion of his enlistment. He was prescribed medication. The physician said that, if symptoms of asthma were not abolished or if exercise induced bronchospasms occurred; a medical board would be convened. A second consult was written the next day. The physician noted that the veteran was told to try and run a physical fitness test. The veteran took his medication and complied. He experienced shortness of breath, wheezing, and passed out. The impression was extrinsic asthma. A medical board was dictated. The medical board provided a diagnosis of exercise induced bronchial asthma. The medical board determined that the disorder existed prior to service and was not aggravated by service. The Physical Evaluation Board (PEB) also found that the bronchial asthma existed prior to service and was not aggravated in March 1977. The veteran was discharged in April 1977. The veteran originally sought entitlement to service connection for disability compensation benefits for his asthma in February 1986. He submitted statements from his parents in October 1986. The parents each said that the veteran was treated for asthma as a small child. The parents also said that he did not have any additional asthma attacks until after he was in service. Records were received from John Randolph Hospital that showed treatment for acute bronchitis in May 1983. This is the earliest medical evidence of treatment for asthma subsequent to the veteran's service. The Board denied the veteran's claim in July 1988. The Board found that there was clear and unmistakable evidence that the veteran's asthma preexisted service. The Board further found that the asthma was not aggravated beyond the normal progression of the disease in service. The veteran testified at a Central Office hearing in June 2004. The veteran acknowledged treatment for his asthma as a small child but said he did not have any problems with asthma in the years prior to his enlistment. He said that he was able to engage in all of the physical activities required during basic training and had no problems. He said he did fine on his physical fitness tests for about his first 18 months of service. He said he noticed that his times for distance runs began to get longer. He was assigned to Okinawa for approximately 13 months. He was then reassigned to Camp Lejeune. He described how he was on a five mile run and carried about 100 pounds on the run. He said he got near the finish line when he passed out. He was later processed for his discharge for asthma. He also testified that he continued to receive treatment for his asthma from VA. The veteran submitted additional statements from his parents that reiterated their previous information that the veteran had asthma as a small child. The veteran's mother said that he never required hospitalization again for his asthma and had very little problems with his asthma as a teenager. The veteran also submitted a statement from R. H. Sinnott, M.D., dated in June 2004. Dr. Sinnott said that he had reviewed the veteran's service medical and personnel records. He had also reviewed the statements from the parents and the records of treatment from 1957, obtained a history from the veteran, and reviewed the medical history of the asthma subsequent to the veteran's discharge from service. Dr. Sinnott said that the veteran's childhood started with severe asthma. It appeared that the symptoms subsided after his early hospitalizations. In the subsequent years the veteran continued to have problems with asthma, to a lesser degree. Dr. Sinnott said that the veteran appeared to be symptom free by the time he was a teenager, according to histories provided by the parents. He said that the extreme stress and environmental changes at Parris Island caused an aggravation of the veteran's bronchial asthma. He said this aggravation continued at the veteran's later assignments. Dr. Sinnott said that he could state, within a reasonable degree of medical certainty, that the veteran's childhood bronchial asthma was aggravated during his military service. Records from the Social Security Administration (SSA) show that the veteran was found to be disabled as of August 2000. The primary disorder was COPD. The SSA evaluations did not provide any pertinent evidence regarding whether the veteran's asthma was related to service. VA records were included in the SSA record and they documented continued treatment for asthma. Private treatment records from A. Durrani, M.D., for the period from September 1982 to October 2002, documented treatment for asthma from 1983 onward. VA records were associated with the claims folder that documented treatment for asthma and asthmatic bronchitis from 1998 onward. The RO obtained a VA medical opinion in April 2005. The VA physician noted that she had reviewed the claims folder. She said the veteran's history was compatible with asthma since childhood. She also said that exacerbating factors included a long history of cigarette smoking, exposure to environmental allergens, and poor medication compliance. She also said that he was obese. The physician opined that it was less likely than not that the veteran's preexisting asthma was aggravated beyond the normal progression of the disease by his military service. No rationale for the opinion was provided. The veteran testified at a hearing before the Decision Review Officer (DRO) in October 2005. His testimony was essentially the same as from the hearing in June 2004. The veteran also submitted a statement from R. J. Blackburn, D.O., dated in June 2005. Dr. Blackburn said that he had reviewed the veteran's medical records. He noted the veteran's history of severe asthma as a child. He said that the symptoms seemed to have subsided between the ages of 2 to 3. He said that there was evidence that the veteran had some problems with asthma throughout his childhood into his teenage years that seemed to be minor. Dr. Blackburn noted that the veteran passed his entrance physical examination for service and that he performed without problems until his five mile run. He noted that the veteran reported that he blacked out and that the SMRs were consistent with the report. Dr. Blackburn said that it was his opinion, within a reasonable degree of medical certainty, that the veteran's history of asthma was certainly aggravated by events in service. He noted the veteran's report of being sprayed with Agent Orange at Parris Island. He said that it was after this event that the veteran's respiratory problems started and continued to deteriorate up to the point of the five mile run. He further opined that the Agent Orange could have had a profound/permanent affect [sic] on the veteran's respiratory condition. Finally, the veteran testified at a Travel Board hearing in June 2006. Again, his testimony was similar to that provided in his two previous hearings. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). In addition to the above-mentioned requirements for service connection, claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, and infirmities - a presumption of soundness. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Only such conditions as are recorded in entrance examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Vanerson v. West, 12 Vet. App. 254, 259 (1999). In order to rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); see also VAOPGCPREC 3- 2003. In rebutting the presumption of soundness, records made prior to, during or subsequent to service, concerning the inception of the disease/disorder may be considered. See Harris v. West, 203 F.3d 1347, 1350 (Fed. Cir. 2000). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2006). Effective May 4, 2005, VA amended its regulations at 38 C.F.R. § 3.304(b) to reflect a change in the interpretation of the statute governing the presumption of sound condition. The final rule conforms to Federal Circuit precedent in Wagner and applies to claims, which were pending on or filed after May 4, 2005. As the veteran's case was pending as of that date, the amendment applies. In addition, a pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2006). There is clear and unmistakable evidence that the veteran's asthma existed prior to service. The 1957 medical records, statements from the veteran's parents, veteran's statements within one month of service, other statements by the veteran during service, testimony from the veteran at his several hearings, and the reports from his two medical opinions all combine to meet the evidentiary standard and show that the veteran had asthma prior to service. There is evidence that the veteran's asthma was aggravated in service. He did not just experience increased symptoms but underwent an increase in the underlying severity to the point where he was discharged from service. The increase in severity developed over time and culminated in the episode where he passed out while running. The veteran had been on a no running light duty chit for approximately one year and his records do not reflect any respiratory complaints during that time. As soon as he was removed from this status, and attempted to run, he had a severe asthma episode that lead to his being processed for discharge. Prior to the May 1975 light duty chit, he had been seen in October 1974, January 1975, and February 1975 for respiratory complaints but these were acute and transitory and not even attributed to his asthma. Subsequent to his April 1976 episode, the veteran's asthma was determined to be disqualifying for service because he could not perform his duties even while on medication. In addition, there are the statements from Dr. Sinnott and Dr. Blackburn that both state that the veteran had an underlying worsening of his asthma in service due to conditions experienced in service. The April 2005 VA opinion held that the veteran's asthma was not aggravated beyond its normal progression. However, the examiner did not provide any rationale for the opinion. The record does not establish that there is clear and unmistakable evidence that the veteran's asthma was not aggravated during service, e.g. is not undebatable that is was not aggravated during service. The evidence establishes that the veteran's preexisting asthma underwent a permanent increase in severity during his military service. Service connection for asthma, on the basis of aggravation, is granted. II. Clear and Unmistakable Error The veteran suffered a laceration to his right index finger in service in November 1976. An Inpatient Admissions/Disposition Record, NAVMED 6300/5, dated in November 1976, noted that the veteran was uncooperative and incoherent on presentation for treatment. A medical board report, dated in December 1976, noted that the veteran had been imbibing alcoholic beverages prior to his injury and could not recall how he sustained the laceration to his right index finger. The PEB found that the veteran's injury was due to intentional misconduct or willful neglect in March 1977. The Physical Review Council (PRC) approved the findings of the PEB that same month. The veteran originally sought service connection for the injury to his right index finger in June 1977. The only evidence of record at the time was the veteran's SMRs and findings of the PEB and PRC. The RO issued an administrative decision that found that the veteran's injury to his right index finger in service was due to willful misconduct in November 1977. The administrative decision cited to the findings of the PEB in support of the conclusion that the injury was the result of willful misconduct. The RO denied service connection for the injury by way of the rating decision dated November 7, 1977. Notice of the rating action was provided that same month. The veteran did not appeal. See 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2006). At the time the veteran submitted his claim in 1977, service connection was warranted for a disability that was the result of disease or injury that was incurred in or aggravated by wartime or peacetime service. 38 U.S.C. §§ 310, 331 (1976) (now codified at 38 U.S.C.A. §§ 1110, 1131); 38 C.F.R. §§ 3.303, 3.304 (1977). Both 38 U.S.C. § 310 and 38 U.S.C. § 331 provided for service connection for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. Both provisions also prohibited the payment of compensation if the disability was the result of the veteran's own willful misconduct. Under 38 U.S.C. § 105(a) (1976), there was a presumption that an injury incurred during active military service will be deemed to have been incurred in the line of duty unless the injury was the result of the person's own willful misconduct. If VA finds that an exception to the presumption exists, it must do so on the basis of a preponderance of the evidence. See Thomas v. Nicholson, 423 F.3d. 1279, 184-85 (Fed. Cir. 2005); see also Daniels v. Brown, 9 Vet. App. 348, 351 (1996) (citing Smith v. Derwinski, 2 Vet. App. 241, 244 (1992)). Applicable regulations defined line of duty as an injury or disease incurred or aggravated during a period of active military service unless such injury or disease was the result of the veteran's own willful misconduct. A service department finding that an injury occurred in the line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administrated by VA. 38 C.F.R. § 3.1(m) (1977). The regulation also cited to three specific examples of when the requirements as to line of duty were not met. None of the examples are pertinent to the veteran's status. Willful misconduct was defined an act involving conscious wrongdoing or known prohibited action (malum in se or malum prohibitum). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of the injury, disease, or death. 38 C.F.R. § 3.1(n) (1977). The simple drinking of alcoholic beverage is not of itself willful misconduct. If, however, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2) (1977). Previous determinations, which are final and binding, including decisions of service connection, degree of disability and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2006). To establish a valid CUE claim, a veteran must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310 (1992). However, the veteran must assert more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412, 418 (1996). If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo v. Brown, 6 Vet. App. 40 (1993). (emphasis added). If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA's failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). Finally, if a claimant fails to adequately plead a CUE claim, whether it be a Board or RO decision, the proper remedy is to dismiss the challenge without prejudice. See Simmons v. Principi, 17 Vet. App. 104, 114 (2003). The veteran challenges the November 7, 1977, rating decision on the basis of CUE. The veteran has submitted several statements and testified at his hearings that he suffered the laceration of his finger by accident. In June 2004 he argued the rating decision was arbitrary and capricious. He admitted to being at a party on his own time. He also said that every Marine he knew was guilty of drinking on their own time. He said that there was no evidence to support the conclusion of willful misconduct. The veteran said that the RO did not solicit additional evidence about what happened. This was a failure in the duty to assist. He said that he told his sergeant the next day that a friend accidentally cut him with a knife by handing the knife to him the wrong way. The veteran said it was an accident that caused the injury, not willful misconduct. The veteran's claim was denied in February 2005. In his notice of disagreement the veteran noted that it was VA's burden to prove that there was willful misconduct. He did not believe his drinking and inability to remember what had happened constituted willful misconduct. The veteran also presented testimony and argument at hearings in June 2005 and June 2006, respectively. He argued that the evidence did not support a finding of willful misconduct. In written argument, the veteran contended that the evidence did not establish a connection between his drinking of alcohol and the injury. He maintained that his mere drinking of alcohol did not serve to rebut the presumption that his injury was incurred in the line of duty. As noted, the veteran was evaluated for disability purposes while in service. This evaluation would have, presumably, considered the veteran's later explanation for what happened to cause his injury. The service department, by way of the PEB, made the finding that his right index finger injury was the result of intentional misconduct or willful neglect. The PEB's findings were subject to review and were approved by the PRC. While the veteran's right index finger injury was found to be a permanent disability, he was not given any type of disability status on his discharge from service. It is reasonable to conclude that the service department found that the injury was not in the line of duty. The RO reviewed the same military records and the determinations made by the service department. Those determinations were sufficient to rebut the line of duty presumption for the reasons given. The RO also found the determinations made by the service department to be dispositive of the fact that the veteran's use of alcohol was the proximate cause of his injury. The medical records show that the veteran was incoherent and uncooperative on the night of the injury. The medical board report noted that the veteran had been drinking and did not know how he had cut his finger. There was no evidence of record at the time to contradict a conclusion that the veteran's use of alcohol was the proximate cause of his injury or to show that the RO was incorrect in making this determination. The veteran cannot now provide an explanation for what happened at the time he was injured as a means of demonstrating that there was not willful misconduct. Further, he cannot allege a failure in the duty to assist to support his CUE challenge. See Cook, supra. The veteran's contentions are that there was not evidence to rebut the presumption of his injury occurring in the line of duty. The RO conclusion that there was sufficient evidence is supported by the record. The veteran has not demonstrated that the correct facts, as they were known at the time, were not before the RO or that the RO has misapplied any provision of law or regulation. The Board finds that the evidence before the RO at the time of the November 1977 rating decision supports the willful misconduct finding, and that the decision reached was consistent with the extant governing legal authority. In deciding the veteran's CUE claim, the Board has considered the Veteran's Claims Assistance Act of 2000 (VCAA) for possible application. Claims for CUE must be decided based on the evidence of record as they are based on a request for a revision of a previous decision. As such, the Court has held that the duties to assist and notify under the VCAA are not applicable to CUE claims. See Livesay v. Principi, 15 Vet. App. 165, 179 (2001); Parker v. Principi, 15 Vet. App. 407, 412 (2002). ORDER Service connection for asthma is granted. The veteran's claim that the rating decision entered in November 1977 was clearly and unmistakably erroneous in failing to grant service connection for a right index finger is dismissed. REMAND The veteran is also seeking to reopen his claim for service connection for his right index finger injury. As noted, the claim was first denied in November 1977. The veteran attempted to reopen his claim in October 1983. The RO wrote to him in November 1983. He was informed of the prior denial based on the finding that his injury was due to willful misconduct. He was further informed of the need to submit new and material evidence to show that his injury was not due to willful misconduct. The veteran did not respond to the letter. The veteran again attempted to reopen his claim in February 1986. The RO issued a rating decision that addressed the veteran's asthma claim and showed his right index finger injury was still not service connected due to it being the result of willful misconduct. It is not clear that the notification letter informed the veteran of the denial of his claim in March 1986. The veteran again sought service connection for the injury to his right index finger in August 1996. The RO wrote to him in September 1996 and informed him he had been notified of the denial of his claim, because the injury was due to willful misconduct, in November 1983. He was told that new and material evidence was needed to show that the injury was not due to willful misconduct. The veteran did not respond to the letter. The RO wrote to him and told him that his claim was denied in November 1996. He was given notice of his right to appeal. The veteran submitted his current claim in June 2004. At the time, the veteran's claims folder was at the Board pending review of his asthma/COPD claim. The RO wrote to the veteran in August 2004. The RO informed the veteran that his previous claim had been denied because he had not provided new and material evidence to show that his injury was not due to willful misconduct. The RO acknowledged that they could not say when the claim was last denied because the claims folder was at the Board. The RO denied the current claim in February 2005. The issue was styled as whether the decision to deny compensation for residuals of injury of the right index finger was clearly and unmistakably erroneous. In addition to adjudicating the CUE issue the rating decision found that the November 1977 rating decision was final and that no new and material evidence had been received since then. As shown, the last final denial on any basis occurred in November 1996. On remand, the veteran's case should be adjudicated on that basis. In addition, the veteran was issued an SOC in regard to this issue in August 2005. The SOC did not provide the regulatory cite for new and material evidence, 38 C.F.R. § 3.156(a). The applicable regulation must be included in any SSOC issued after further review of the veteran's claim, to include the new evidence submitted by the veteran's attorney as noted in the Introduction. The veteran was originally denied service connection for asthma by way of a Board decision dated in July 1988. The veteran submitted a claim for service connection for COPD, as secondary to asthma, in January 2002. The RO initially treated the claim as one for service connection on a secondary basis but determined that the veteran was claiming service connection for a respiratory disorder, an issue previously denied. As such, the RO, citing to Ashford v. Brown, 10 Vet. App. 120 (1997), found that a claim for a respiratory disorder on a different theory is not a new claim. The RO determined that new and material evidence must be submitted to reopen a claim for service connection for a respiratory disorder, to include asthma and COPD. The Board reopened the veteran's claim for service connection for asthma and COPD and remanded the case in October 2004. The Board has now granted service connection for the asthma issue. However, the issue of service connection for COPD, as secondary to service connected asthma, remains on appeal. In his June 2005 statement Dr. Blackburn said that he was of the opinion that the natural progression of the veteran's asthma, coupled with his smoking, had lead to COPD. He did not provide any rationale for his opinion. As the veteran's claim must be remanded for consideration of the additional evidence submitted in June 2006, additional development of this issue is required. The Board notes that the regulation addressing service connection for disabilities on a secondary basis, 38 C.F.R. § 3.310, was recently amended in September 2006. See 71 Fed. Reg. 52,744-52,747 (Sept. 7, 2006), effective October 10, 2006. The change was made to conform VA regulations to decisions from the United States Court of Appeals for Veterans Claims (Court), specifically Allen v. Brown, 7 Vet. App. 439 (1995). The prior regulation addressed whether a service connected disability was the cause of a secondary disability. The Allen decision provides for consideration of whether a service connected disability aggravates a nonservice connected disability. The change in regulations includes the holding from Allen in a new section, 38 C.F.R. § 3.310(b). This change in regulation must be considered on remand. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers who treated or evaluated the veteran for his claimed COPD since 2006. After securing the necessary releases, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran that are not already of record. 2. Upon completion of the above, the veteran should be afforded an examination. The purpose of the examination is to obtain a detailed history and medical opinion evidence regarding whether the veteran's COPD was caused or aggravated by his service connected asthma. The claims folder and a copy of this remand should be made available to the examiner. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner should review the entire record, including evidence obtained as a result of the development sought above and the June 2005 statement from Dr. Blackburn. The examiner is requested to provide an opinion whether the veteran's COPD is at least as likely as not (i.e., probability of 50 percent or more) caused by his asthma and/or aggravated by his asthma. The rationale for the examiner's opinion should be set forth in detail. 3. After undertaking any other development deemed appropriate, the RO should re-adjudicate the issues on appeal. If any benefit sought is not granted, the veteran and his attorney should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The supplemental statement of the case should include a citation to 38 C.F.R. § 3.156(a) (2006) and to the recently amended version of 38 C.F.R. § 3.310. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs