Citation Nr: 1139294 Decision Date: 10/21/11 Archive Date: 10/25/11 DOCKET NO. 08-34 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a chronic respiratory disorder to include acute respiratory disease and pneumonia. 2. Entitlement to service connection for chronic tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from February 1977 to February 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Albuquerque, New Mexico, Regional Office (RO) which denied service connection for both tinnitus and acute respiratory disease. In August 2009, the Veteran was afforded a videoconference before the undersigned Veterans Law Judge. The hearing transcript has been incorporated into the record. In December 2009 and April 2011, the Board remanded the Veteran's claims to the RO for additional action. The Board has reframed the issue of service connection for a chronic respiratory disorder as entitlement to service connection for a chronic respiratory disorder to include acute respiratory disease and pneumonia in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. REMAND In its April 2011 remand, the Board indicated that "the Veteran submitted a[n executed] release for VA to request his records for treatment he had received through Cedars-Sinai Medical Care Foundation covering treatment from 1989 to 1994." The Board then directed that: 1. Request records from Cedars-Sinai Medical Care Foundation, and, if this request is unsuccessful, advise the Veteran of that fact and provide him an opportunity to submit the records. Additionally, the Veteran should be contacted and asked to provide information with regard to treatment and/or evaluation he has received for respiratory difficulties and/or tinnitus in the years between service separation and the present time. Based on the information received from him, appropriate action should be taken to obtain records of treatment or evaluation by health care providers, whether VA or non-VA. If the Veteran did not receive any post service medical care, he should so indicate. If he does refer to treatment, attempts to obtain records should be documented. If no records are available, this should also be reflected in the evidence of record. In an April 12, 2011, notice to the Veteran, the AMC informed the Veteran that "[i]f you would like us to obtain your treatment records, to include from Cedars-Sinai Medical Care Foundation, please complete a separate VA Form 21-4142 for each non-VA provider to include the complete address, zip code, and dates of treatment so that we can obtain your treatment records." In August 2011, the AMC issued a supplemental statement of the case (SSOC) to the Veteran and his accredited representative. The AMC indicated that: On April 12, 2010, we sent you a duty to assist development letter asking you to complete, sign and return the enclosed VA Form 21-4142 Authorization and Consent to Release Information to VA for Cedars-Sinai Medical Care Foundation ... to support your appeal. To date, we have not received any response and/or additional evidence from you in support of your appeal in response to our request. The Board observes that the AMC apparently failed to note the Veteran's fully executed April 13, 2010, VA Form 21-4142 to obtain records from Cedars-Sinai Medical Care Foundation of his treatment between 1989 and 1994. Clinical documentation from Cedars-Sinai Medical Care Foundation has not been requested for incorporation into the record. The Court has held that the RO's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is again REMANDED for the following action: 1. Contact Cedars-Sinai Medical Care Foundation and request that it forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the claims file. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2011). 2. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2011).