Citation Nr: 0813653 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 03-00 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating for moderately advanced chronic pulmonary tuberculosis, arrested on March 11, 1955, currently rated 30 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had active duty from June 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In December 2006, the Board remanded this case for further development. Unfortunately, the case must again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board's December 2006 remand noted that, as much as it regretted further delay in the adjudication of this claim, further development was needed before a decision could be issued on its merits. Further development would ensure that the veteran's due process rights are met, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2007). One of the bases for the remand was for the AMC to clarify what diagnostic criteria were used in denying the veteran's claim for an increased rating. A supplemental statement of the case (SSOC) in March 2007 provided the requested clarification. In addition, the remand noted that the General Rating Formula for restrictive lung disease (Diagnostic Codes 6840 through 6845) require readings for forced expiratory volume in one second (FEV-1), the ratio of FEV-1 to forced vital capacity (FVC) (FEV-1/FVC), diffusion capacity of carbon monoxide, single breath (DLCO (sb)) and maximum oxygen consumption in ml/kg/min (with cardiorespiratory limit). The veteran last underwent a VA compensation and pension (C&P) examination in June 2005, at which time pulmonary function tests (PFTs) were performed. Although pre- and post-bronchodilator testing was conducted with actual measurements for FEV-1, FEV-1/FVC, and DLCO, no predicted or percent predicted values were included. Further, the PFT report that was included with the November 2004 VA compensation examination report does not contain values for percent predicted post-bronchodilator - values which are required in rating the disability under the General Rating Formula, pursuant to 38 C.F.R. § 4.96(d). The Board's remand directed that the file be returned to an examiner to furnish the missing data and also to schedule the veteran for another examination. The March 2007 SSOC indicated that an examination was scheduled in January 2007, pursuant to the Board's remand instructions, but that the veteran had cancelled the examination. The SSOC stated that, in the absence of any supplemental medical evidence for review, the prior determination was confirmed. Further, the SSOC provided the veteran with the full text of 38 C.F.R. § 4.96(d) that had been added in September 2006, and considered those provisions in readjudicating the claim, as addressed in the Board's remand. Significantly, however, the SSOC did not state why it was not possible to have an examiner review the November 2004 and June 2005 examination reports to provide the missing PFT data, despite the veteran's cancellation of the examination; another SSOC in February 2008 also did not clarify this defect. The Board observes that the AMC was informed that the veteran had cancelled the scheduled January 2007 examination, advising the VA Medical Center that he was not physically able to go, and stating that he withdrew the claim. The AMC then contacted the veteran via telephone in April 2007 to confirm that he wanted to withdraw his claim on appeal. The veteran indicated that he would be 83 years old that year and was unable to travel to the hospital for the exam. He was reportedly very upset that it had taken four years for a decision to be made in his case. The veteran stated that he was tired of "going back and forth, back and forth to do the same thing at the hospital" and just wanted VA to make a decision. The Board cannot construe the veteran's April 2007 statements as indicating his intent to withdraw his appeal. The Board finds that the veteran has shown good cause for cancelling the examination scheduled in January 2007. See 38 C.F.R. § 3.655(a) (2007). However, because he has indicated that he cannot attend another examination, no further examination need be scheduled at this time. The Board would point out that the United States Court of Appeals for Veterans Claims (Court) has held that "where remand orders of the Board or this Court are not complied with, the Board itself errs in failing to insure compliance." Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, inasmuch as a significant portion of the Board's December 2006 remand was not completed by the AMC, the veteran's appeal is not yet ready for final appellate consideration. Accordingly, the case must yet again be REMANDED for the following actions: 1. Have the pulmonary function test results reported in the report of the June 14, 2005, VA examination and in the report of the November 10, 2004, VA examination evaluated by a medical professional and, if possible, reported to include actual, predicted, and percent predicted results for all required readings. If this is not possible, the reason(s) why the test results cannot be reported completely should be documented. 2. Thereafter, readjudicate the claim. If the benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be provided an SSOC and should be given an opportunity to respond before the case is returned to the Board. The appellant 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). _________________________________________________ MARY GALLAGHER 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).