Citation Nr: 0812638 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-39 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 30 percent for chronic bronchitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from August 1944 to June 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of May 2006 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND In this case, the veteran contends that his service-connected bronchitis has worsened, and that this decline warrants a higher disability evaluation. The veteran was originally granted service connection for chest rales in a rating decision dated July 1946. The RO evaluated the veteran's condition as a non-compensable disability, effective June 4, 1946. A subsequent rating decision dated March 2005 rephrased the issue on appeal as entitlement to an increased rating for bronchitis and increased the veteran's disability evaluation to 30 percent, effective April 7, 2004. The Board notes that the veteran was afforded a VA Compensation and Pension (C&P) Examination in connection with the current claim in April 2006. The veteran stated that he used an inhaled bronchodilator daily, but with side effects. The veteran reported coughing, wheezing, dyspnea (at rest, and on mild, moderate, and severe exertion), and a single episode of hemoptysis. The veteran also indicated that he was hospitalized at a VA facility in February 2006 for a variety of ailments, including congestive heart failure and chronic obstructive pulmonary disease. Upon physical examination, the examiner observed the presence of decreased breath sounds, rales, rhonchi, wheezing, and dyspnea on moderate exertion. The examiner noted that the veteran had slightly limited excursion of the diaphragm and slightly limited chest expansion. Pulmonary function tests (PFTs) were interpreted to show a moderate ventilatory defect, mild airflow limitation, improved with combination inhaled bronchodilators, mild restrictive ventilatory defect, and mildly reduced transfer factor for carbon dioxide. Arterial blood gases at rest on room air revealed normal oxygen tension with mild metabolic alkalosis. Pulse oximetry at rest on room air revealed normal oxygen saturation. The veteran's forced expiratory volume in one second (FEV-1) was 70 percent of the predicted value. It was noted that there were no significant changes in spirometry when compared to the prior PFT study conducted by VA in May 2004. For comparison, the veteran's FEV-1 in May 2004 was 79.4 percent of the predicted value. A notation on the April 2006 examination report revealed that the veteran experienced "severe pulmonary hypertension, > 60 mmHg." Moreover, the examiner also purportedly found evidence of cor pulmonale, but did not identify the clinical findings supporting this conclusion. The examiner indicated that the veteran's bronchitis had a mild effect on his ability to complete chores and prevented exercising, but had no effect on shopping, sports, recreation, traveling, feeding, bathing, dressing, toileting, or grooming. No evidence of right ventricular hypertrophy was noted at that time. The examiner diagnosed the veteran as having chronic obstructive lung disease. The veteran also stated in his November 2006 substantive appeal that he was hospitalized at the VA Medical Center in Miami on three occasions for his bronchitis. These hospitalization records, as well as those records referenced by the veteran during the April 2006 C&P examination, have not been associated with the veteran's claims file and must be obtained. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). However, where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); 38 C.F.R. § 4.2. In this case, the Board acknowledges that the April 2006 C&P examination results provided some support for a disability evaluation of 100 percent in this case. However, other conclusions rendered in the same examination report more nearly approximated the veteran's current disability evaluation. In particular, the Board points out that this confusion stems from the examiner not explaining the medical findings supporting the findings of pulmonary hypertension and cor pulmonale. For this reason, the Board regrettably finds that the April 2006 C&P examination is inadequate for evaluation purposes. Thus, the veteran should be afforded a new VA examination. Additionally, the veteran receives medical care through VA. VA is required to make reasonable efforts to help a veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United States Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Therefore, the RO should request all VA medical records pertaining to the veteran that are dated from January 2005 to the present. The Board observes that in light of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the veteran was not provided with a duty-to-inform notice that fully complied with the Veterans Claims Assistance Act (VCAA). To substantiate an increased rating claim, the veteran must be informed of the following: (a) that the veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disabilities and the effect that worsening has on the veteran's employment and daily life; (b) if the Diagnostic Code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening on the veteran'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 veteran; (c) the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide a range in severity of the particular disability from a non-compensable rating (0%) to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (d) the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation (e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances related to the disability). On remand, the RO should provide the veteran with supplemental VCAA notification. Accordingly, the case is REMANDED for the following action: 1. The RO should send a duty-to-inform notice to the veteran pursuant to the Veterans Claims Assistance Act and Vazquez-Flores v. Peake. In this case, the veteran should be advised of the rating criteria for bronchitis as seen in 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code 6600 (2007). He should also be advised that he can submit evidence showing the worsening or increase in severity of his bronchitis upon his employment and daily life. 2. The RO should contact the appropriate VA medical facilities and attempt to obtain medical treatment records that are dated from January 2005 to the present, as well as any VA records related to the veteran's claimed hospitalizations discussed above. All efforts to obtain these records should be fully documented, and the VA medical facilities should provide a response if all of the records have already been provided. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. The RO should also attempt to obtain any other evidence identified as relevant by the veteran during the course of the remand, provided that the veteran completes the required authorization forms. 3. After completion of the above development, the RO should make arrangements with the appropriate VA medical facility for the veteran to undergo an examination. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder and the remand have been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. Pulmonary function tests are required and the results should be expressed in terms of the forced expiratory volume in one second (FEV-1), the ratio of forced expiratory volume in one second to forced vital capacity (FEV- 1/FVC), and/or the diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO-SB). The examiner is asked to assess the severity of the veteran's service- connected bronchitis. The examiner should attempt to disassociate such symptomatology from non-service-connected respiratory disorders, if any are present. If the symptomatology cannot be disassociated, the examiner should so state and explain why. The examiner is also asked to include a discussion of the functional impairments of daily life and employment, if any, resulting from the veteran's service-connected bronchitis. The examiner must provide a complete rationale for any stated opinion. The examiner is also asked to identify whether the veteran has cor pulmonale, right ventricular hypertrophy, pulmonary hypertension (shown by echocardiogram or cardiac catheterization), or espisode(s) of acute respiratory failure. The examiner should also indicate whether the veteran requires outpatient oxygen therapy. If the examiner determines that the veteran does not have cor pulmonale or pulmonary hypertension, the examiner is asked to comment on the April 2006 VA examination report. The examiner must provide a complete rationale for any stated opinion. 4. Thereafter, the RO should readjudicate the veteran's claim. If the benefits sought on appeal remain denied, the veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 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). 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. 2007). _________________________________________________ S.S. TOTH 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).