Citation Nr: 0812810 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 03-16 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for asthma and reactive airway disease. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD Van Stewart, Counsel INTRODUCTION The veteran had active military service from August 1944 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board initially denied this claim, originally based on claimed in-service exposure to asbestos, in a decision dated in May 2004. The veteran did not appeal to the United States Court of Appeals for Veterans Claims (Court). The RO, sua sponte, reopened the claim in September 2004 based on submission of a doctor's letter that opined that there was a possible connection between catarrhal fever contracted in April 1945 and the veteran's then-current respiratory complaints. The RO subsequently denied the claim in January 2005. After remand by the Board in August 2005 for additional development, to include a VA examination, the RO again denied the claim in January 2006. The Board denied the appellant's claim again in a decision dated in January 2007. The veteran thereafter appealed the Board's decision to the Court. In response to a joint motion for remand of this issue, in a decision dated in January 2008, which decision incorporated the joint motion by reference, the Court vacated the Board's January 2007 decision and remanded the case to the Board for compliance with the instructions in the joint motion. For the reasons set forth below, the claim will be remanded again. REMAND In accordance with the Board's August 2005 remand order, the veteran was scheduled for a VA examination to be conducted on October 3, 2005, at the Grand Isle VA Medical Center (VAMC), which is near the veteran's home. The Board's remand order also stipulated that, if the veteran refused to comply with the request to appear for a VA examination, the RO should nevertheless request an opinion from a specialist following review of the claims file. In a letter dated September 29, 2005, the veteran's attorney notified the RO (but not, as directed, the VAMC at Grand Isle, which, the Board notes, would have greatly expedited rescheduling of the examination) that the veteran had recently undergone heart surgery, and that his physician had advised him not to travel during his recuperation. The attorney noted that the veteran was not refusing to attend a VA examination, but could not undergo the scheduled examination while recuperating. Because the veteran did not report for his examination, the examiner provided the medical opinion on which the Board's January 2007 denial of service connection was partly based. The Board notes that the veteran failed to report for examinations scheduled for the end of November 2005 at the Omaha, Nebraska VAMC, though it is not entirely clear from the record which, if any, of the scheduled examinations was related to the instant claim or to other claims then being developed. The veteran's attorney again wrote the RO, not the VAMC, this time averring that the veteran was not capable of driving the 150 miles to Omaha unassisted owing to his advanced age. In the joint motion it was agreed by the parties that the Board erred by not ensuring compliance with its remand order that the veteran be afforded a VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the veteran will be afforded a VA examination in connection with the instant claim. If possible, the examination should be scheduled at the Grand Isle VAMC. If the veteran is unable to report for his scheduled examination, he or his representative should notify the medical facility at which the examination is scheduled, with a copy to the RO, of the reason(s) for the failure to report for the examination. If the veteran fails to report for his scheduled examination, the RO must make a determination as to whether there was good cause for failure to report for examination. See 38 C.F.R. § 3.655. If good cause is shown, the veteran shall be rescheduled for examination. If good cause is not shown, this re-opened claim shall be adjudicated in accordance with 38 C.F.R. § 3.655. The veteran, through counsel, will also be asked to identify any related medical treatment he has received. Accordingly the veteran's case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should contact the veteran's attorney, with a copy to the veteran, seeking to obtain the names and addresses of all medical care providers who have treated the veteran for asthma or reactive airway disease. After securing the necessary release(s), the AOJ should obtain any outstanding records that have not been associated with the claims file. 2. The veteran should be scheduled for a VA examination by a pulmonary specialist. Owing to the veteran's advanced age, if possible, the examination should be conducted at the Grand Isle VAMC. The examiner should obtain a detailed medical history from the veteran. Based on the veteran's history and a thorough review of the veteran's service medical records, as well as all other evidence obtained, the examiner should provide a medical opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently diagnosed asthma or reactive airway disease is related to military service, including specifically to his April 1945 catarrhal fever infection. A complete rationale for all opinions expressed must be provided. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and any results must be included in the examination report. The veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The AOJ should ensure that the examination report complies with this remand and the questions presented in the AOJ's examination request, especially with respect to the instructions to provide medical opinion. If the report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. The veteran should be advised, through counsel, that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655(b) (2007). If the veteran is unable to report for any scheduled examination, he or his attorney should notify the VA medical facility at which the examination was scheduled, with a copy to the RO, of the reason for his unavailability for examination. If the veteran fails to report for his scheduled examination without prior excuse, the RO should contact the veteran's attorney, with a copy to the veteran, and ask for the reason for failure to report for the scheduled examination. In any event, the RO must make a determination as to whether there was good cause for failure to report for examination. See 38 C.F.R. § 3.655. If the RO determines that there was good cause, the veteran shall be rescheduled for examination. If good cause is not shown, the reopened claim shall be adjudicated in accordance with 38 C.F.R. § 3.655. 3. After undertaking any other development deemed appropriate, the AOJ should consider the issue on appeal in light of all information or evidence received. If any benefit sought is not granted, the veteran and his representative 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. After expiration of any applicable period allowed for response, the case should be returned to the Board for further appellate review, if in order. 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 AOJ. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the AOJ. 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. 2007). ________________________________ MARK F. HALSEY 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 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).