Citation Nr: 0810958 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-27 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an evaluation in excess of 30 percent for chronic obstructive pulmonary disease (COPD), previously considered as bronchitis with emphysema. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Donnelly, Associate Counsel INTRODUCTION The veteran served on active duty with the United States Air Force from October 1950 to September 1974. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2004 rating decision by the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied entitlement to a higher evaluation for service connected COPD. The veteran testified at a personal hearing before the undersigned Veterans Law Judge held at the RO in January 2008. At that hearing, the veteran moved for advancement of his case on the docket, due to his age and health status. In March 2008, the undersigned granted the motion. The Board notes that the veteran has repeatedly stated that he can no longer work due to his service connected COPD. This appears to be a claim for a total disability rating based on individual unemployability. Further, the veteran's combined schedular evaluation appears to meet the basic eligibility requirements of 38 C.F.R. § 416(a). This issue is referred back to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND During the January 2008 Travel Board hearing, the veteran stated that his condition had grown worse since the most recent August 2006 VA examination. He indicated that over the past year, he has had private treatment, including several hospitalizations, because of the increased severity of his COPD symptoms. A new examination is indicated to obtain current medical findings identifying the degree of impairment due to disability from the veteran's COPD. Prior to any examination, all outstanding records of pertinent medical treatment should be obtained and added to the record. Finally, in light of recent decisions by the United States Court of Appeals for Veterans Claims (the Court), additional notice to the veteran is required in connection with his claim for increased evaluation. Under Vazquez-Flores v. Peake, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided with the notice required under 38 U.S.C.A. § 5103, 38 C.F.R. § 3.159, and court precedent (including Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) regarding VA policies and procedures with regard to assignment of effective dates and evaluations and Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008) regarding notice of evaluation criteria.). 2. The veteran should be asked to provide a completed VA Form 21-4142, Authorization and Consent to Release Information to the VA, to assist in obtaining any outstanding records of pertinent medical treatment for COPD. Specifically noted in this regard are records of pertinent treatment received since August 2004, including from Dr. SCP at the AFCA, and Dr. UA (both identified on January 2008 correspondence received from the veteran at the time of his hearing), as well as any such records from the Sierra Vista Hospital. If completed forms are obtained, the RO should take appropriate steps to obtain all identified private treatment records. In the alternative, the veteran should be asked to provide complete private treatment records. 3. The RO should obtain updated VA treatment records from VAMC Tucson and all associated clinics, any other facility identified by the veteran or in VA records. 4. The RO should schedule the veteran for a VA Respiratory (Obstructive, Restrictive, and Interstitial) examination. Full Pulmonary Function Testing (PFT) results must be provided. 5. Thereafter, the RO should review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO should then readjudicate the claims on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of his claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2007).