Citation Nr: 0842226 Decision Date: 12/09/08 Archive Date: 12/17/08 DOCKET NO. 03-08 314 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for lung disease. 2. Entitlement to a rating in excess of 10 percent for squamous cell carcinoma of the right vocal cord. 3. Entitlement to an effective date prior to December 27, 2001 for service connection for squamous cell carcinoma of the right vocal cord. 4. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from June 1965 to May 1968. He had service in the Republic of Vietnam. This matter came to the Board of Veterans' Appeals (Board) on appeal from RO rating decisions, dated in March 2003, October 2003, June 2006, and January 2007. The issue of entitlement to an increased rating for squamous cell carcinoma of the right vocal cord is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's lung disease, diagnosed primarily as chronic obstructive lung disease, was first manifested many years after service and is unrelated to any event in service, including the claimed exposure to asbestos. 2. The veteran's squamous cell carcinoma of the right vocal cord, a disease presumed to be the result of Agent Orange exposure, was first manifested in September 2000, more than 30 years after the veteran's separation from service. 3. By virtue of revised VA regulations, applicable December 27, 2001, all veterans who served in the Republic of Vietnam were presumed to have been exposed to Agent Orange. 4. By virtue of revised VA regulations, applicable January 1, 2002, VA dropped the requirement that squamous cell carcinoma of the right vocal cord be manifested within thirty years of the last date of exposure to Agent Orange. 5. In March 2003, the RO granted the veteran's claim of entitlement to service connection for cancer of the larynx due to Agent Orange exposure, effective December 27, 2001. 6. Effective December 1, 2004, through December 1, 2006, the maximum annual rate of improved pension (MARP) for a veteran with a dependent wife and child one dependent was between $15,033.00 and $16,176.00. 7. Effective December 1, 2004, through December 1, 2006, to be deducted, medical expenses had to exceed 5% of MAPR or from $665.00 through $715.00. 8. During 2004, 2005, and 2006, the income of the veteran, his spouse, and dependent child was derived, primarily, from the veteran's gross salary of at least $45,000. 9. For the entire period from June 12, 2002, through November 12, 2006, the veteran reported unreimbursed medical expenses totaling $496.13. CONCLUSIONS OF LAW 1. The veteran's lung disease, diagnosed primarily as chronic obstructive lung disease, is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 5103, 5103A (West 2002 and Supp. 2007); 38 C.F.R. § 3.159, 3.303 (2008). 2. The criteria for an effective date prior to December 27, 2001, for service connection for squamous cell carcinoma of the right vocal cord have not been met. 38 U.S.C.A. § 5110(g) (West 2002 and Supp. 2007); 38 C.F.R. § 3.114(a), 3.400(p) (2008). 3. The veteran is not entitled to improved pension benefits due to excessive income. 38 U.S.C.A. § 1503 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the veteran's appeal, the Board must determine whether VA has met its statutory duty to assist the veteran in the development of his claims of entitlement to service connection for lung disease; entitlement to an effective date prior to December 27, 2001 for service connection for squamous cell carcinoma of the right vocal cord; and entitlement to a permanent and total disability rating for pension purposes. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. The RO received the veteran's claim for service connection for lung disease in October 2000, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the veteran of the information and evidence necessary to substantiate and complete the claim, including the evidence to be provided by the veteran, and notice of the evidence VA would attempt to obtain. VA also notified the veteran of the manner in which it determined disability ratings and effective dates, should service connection be granted. VA then fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate his claim. After notice was provided to him, he was afforded a meaningful opportunity to participate in the adjudication of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The veteran has been provided the opportunity to present pertinent evidence and testimony, and he has not identified any outstanding evidence which could support his claim of entitlement to service connection for lung disease. In sum, there is no evidence of any VA error in notifying or assisting the veteran that reasonably affects the fairness of the adjudication of that issue. See Reyes v. Brown, 7 Vet. App. 113 (1994); Soyini v. Derwinski, 1 Vet. App. 540 (1991). Accordingly, the Board will proceed to the merits of that portion of the appeal. All pertinent information has been obtained with respect to the issues of entitlement to an effective date prior to December 27, 2001 for service connection for squamous cell carcinoma of the right vocal cord and of entitlement to a permanent and total disability rating for pension purposes. There would be no purpose served in remanding this case for any additional information or evidence. The issue involving the assignment of an effective date for service connection for squamous cell carcinoma is based on a mechanical application of a liberalizing change in VA regulations. The issue of entitlement to pension is based on a mechanical comparison of the veteran's annual income and the rate of pension. No further action could change the outcome with respect to either issue. Therefore, VA has no further duty to assist the veteran in the development of either claim. Analyses Service Connection for Lung Disease The veteran seeks service connection for lung disease, primarily as a result of exposure to asbestos during service. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim, and the appeal will be denied. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. The resolution of this issue must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in the which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service- connection with be based on a review of the entire evidence of record. 38 C.F.R. § 3.303. As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Service connection may, however, be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The veteran's service medical records, including the reports of his service entrance and separation examinations, are negative for any complaints or clinical findings of chronic lung disease of any kind. They do show that in July 1965, the veteran was treated for an upper respiratory infection, manifested by a cough and sorethroat. However, there is no evidence of any residual disability. Rather, the evidence shows that a chronic respiratory disorder, primarily diagnosed as chronic obstructive lung disease, was first manifested in approximately 2000 and is unrelated to any incident in service. In addition to chronic obstructive lung disease, the evidence, such as treatment records from the Boice-Willis Clinic in November and December 2006, suggests that the veteran has interstitial lung disease due to asbestos exposure in and after service. However, that conclusion is based on history reported by the veteran, rather than a review of the evidence associated with the claims file. While a physician is competent to render medical opinions, such competence does not extend to the factual underpinnings of the opinion. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that it is error to reject a medical opinion solely on the basis that the medical opinion was based on a history given by the veteran, and that a claimant's report must be examined in light of the evidence of record). Therefore, the threshold question in this case is whether the veteran was, in fact, exposed to asbestos in service. During the veteran's May 2004 hearing at the RO, his representative suggested that considerations set forth in M21-1 and in a VA circular were beneficial to a showing of asbestos exposure in service. In May 1988, VA issued a circular on asbestos-related diseases that provided some guidelines for considering compensation claims based on exposure to asbestos. Department of Veterans Benefits (DVB) Circular 21- 88-8, Asbestos- Related Diseases (May 11, 1988). The contents of that circular were later set forth in section 7.21 of VA Manual Admin21 (M21-1). Subsequently, VA reorganized and revised that manual into its current electronic form, M21-1MR. While the form has been revised, the information contained therein has remained the same. However, neither M21-1 nor the VA circular creates a presumption of exposure to asbestos solely from shipboard service. Rather, they provide guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in insulation and shipyard workers. They direct the raters to develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); see also, Nolen v. West, 12 Vet. App. 347 (1999); VAOGCPREC 4-00; 65 Fed. Reg. 33422 (2000). Because M21-1 and the circular do not create a presumption of exposure to asbestos, further inquiry is necessary to determine whether the veteran had such exposure. The veteran's service personnel records show that he was stationed aboard ship from August 1965 to May 1968. His primary military occupational specialties were 1) yeoman, from August 1965 to March 1966; 2) boatswain's mate, from March 1966 to June 1967; 3) plane handler, from June 1967 to March 1968, and 4)"7050", from March to May 1968. Despite extensive development of the record, the preponderance of the competent evidence is against a finding that he had any exposure to asbestos in any of those occupations. Although a Navy Occupational Task Analysis revealed that a boatswain's mate could be exposed to asbestos while performing several of his duties, the veteran has provided no competent evidence of such exposure. During his hearing at the RO in May 2004, the veteran testified that his primary exposure occurred in 1967, while his ship was in dry dock in Bremerton, Washington. He reportedly assisted civilian contractors in working on pipes encased with asbestos. Although he could not recall the month, he noted that it had been very cold. The ship's history shows that in 1967, it was in port for several major repairs. In July and August, it was in dry dock in Bremerton, Washington for repairs on her stern gate and compass; and in December 1967, it was in San Diego, California, where her flight deck was stripped, preserved, and recoated. Each time, the veteran's primary military occupational specialty was that of plane handler. His efficiency reports show that he was responsible for refueling and pushing planes. There is no competent evidence, however, that the repairs in general, or his duties in particular, involved work on asbestos-wrapped pipes or on other projects which entailed exposure to asbestos. Although the evidence of record does not corroborate the veteran's claimed exposure to asbestos in service, there is evidence on file that the veteran was exposed to asbestos after service. During his March 2004 hearing at the RO, the veteran acknowledged that he had been exposed to asbestos brake dust while working for the railroad after service. Moreover, during his treatment at the Boice-Williams Clinic in November 2006, it was noted that he had received an asbestos settlement. There is no competent evidence of record, however, that such settlement involved asbestos exposure in service. Because the preponderance of the competent evidence of record does not substantiate the veteran's claim of asbestos exposure in service, he cannot meet the criteria for service connection for the residuals of that exposure. Therefore, the appeal is denied. Any further discussion as to whether the veteran actually has residuals of asbestos would be superfluous. Accordingly, the inquiry must cease. The Effective Date of Service Connection for Squamous Cell Carcinoma On October 27, 2000, the RO received the veteran's claim of entitlement to squamous cell carcinoma of the right vocal cord. He contended that it was the result of his exposure to Agent Orange in the Republic of Vietnam. Under applicable VA law and regulations in effect in October 2000, service connection for cancer of the larynx, including the vocal cords, was presumed for veterans who had served in the Republic of Vietnam and who had demonstrated manifestations of that disease within thirty years of the date of their last exposure to herbicides. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2000). The veteran's carcinoma of the right vocal cord was first manifested in September 2000, more than thirty years after his separation from service. Because that disease was manifested outside the thirty year time frame, the veteran was not presumed to have been exposed to Agent Orange. Moreover, there was no competent evidence of record that he had, in fact, had such exposure or that his squamous cell was otherwise related to service. Therefore, in December 2000, the RO denied the veteran's claim of entitlement to squamous cell carcinoma of the right vocal cord. The veteran disagreed with that decision and perfected an appeal to the Board. During the pendency of the appeal VA revised its regulations with respect to diseases which were presumed to be the result of Agent Orange exposure. Applicable December 27, 2001, all veterans who served in the Republic of Vietnam were presumed to have been exposed to Agent Orange. VA eliminated the requirement that the veteran develop the disease before he could be presumed to have been exposed to Agent Orange. 68 Fed. Reg. 34539 - 34541 (June 10, 2003) (codified as revised at 38 C.F.R. § 3.307(a)(6)(iii) (2008)). Applicable January 1, 2002, VA eliminated the thirty year time limit associated with the presumption of service cancer of the larynx due to exposure to Agent Orange. 66 Fed. Reg. 23,166-169 (June 10, 2003) (codified as revised at 38 C.F.R. § 3.307(a)(6)(ii) (2008)). As a result of the revised regulations, the RO granted the veteran's claim of entitlement to service connection for squamous cell carcinoma of the right vocal cord, effective December 27, 2001. The veteran disagrees with that effective date and contends that it should revert to at least October 10, 2000, the date of his claim. Generally, the effective date of an award of service connection is the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)- (b)(1); 38 C.F.R. § 3.400(b)(2)(1). However, where, as here, service connection is granted as a result of amendments to the law or revisions to the regulations, the law precludes the assignment of an effective date earlier than the effective date of the change. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a), 3.400(p). Therefore, even though the veteran's claim was received in October 2000, he cannot be assigned an effective date prior to December 27, 2001, for service connection for squamous cell carcinoma of the right vocal cord. The law is dispositive of the issue; and, therefore, the appeal concerning an earlier effective date must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has considered the veteran's contentions that a series of decisions by the Federal courts would permit VA to grant him an earlier effective date. Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III).With respect to claims governing effective dates for service connection for diseases presumed to have been caused by herbicide or Agent Orange exposure, VA has issued a special regulation to implement the holdings in the Nehmer decisions. 38 C.F.R. § 3.816 (2008). Under VA regulations, a Nehmer class member is a Vietnam veteran who has a covered herbicide disease, such as squamous cell carcinoma of the larynx. See 38 C.F.R. § 3.816(b). The holdings in the Nehmer decisions potentially affect cases in which (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease; or (3) the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (4) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded; or (5) if the class member's claim was received within one year from the date of the class member's separation from service. 38 C.F.R. § 3.816(c). If none of the foregoing criteria are met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c) (2007). A presumption of service connection for carcinoma of the larynx, became effective June 9, 1994. 59 Fed. Reg. 29,723 - 29,724 (June 9, 1994). The veteran's claim of entitlement to service connection was not received by the RO until October 2000, and the liberalizing law in question is effective December 2001. Thus, the veteran cannot meet the criteria which would permit him to avail himself of the holdings in the Nehmer decisions. Rather, as was done above, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. Pension By a rating action in December 2000, the RO granted the veteran's claim of entitlement to a permanent and total rating for pension purposes. That rating was effective October 12, 2000. The RO notified the veteran that it would be paying him at the rate for a veteran with no income, who had a dependent wife and a dependent child. In March 2005, the RO terminated the veteran's pension, effective February 1, 2001, because the veteran had received unreported income. The veteran now seeks restoration of his pension benefits due to nonservice- connected disability which he contends is permanent and total in nature. He reports that he and his wife are separated and that he is unable to maintain two households. Therefore, he maintains that he is entitled to VA pension. However, a review of the evidence discloses that his annual countable income exceeds the maximum annual rate of pension for a veteran and a dependent wife and son. Accordingly, he does not meet the criteria to restore his VA pension and that portion of the appeal is denied. The law authorizes the payment of a nonservice-connected disability pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. A veteran meets the service requirements if he 1) served in the active military, naval or air service for ninety (90) days or more during a period of war; 2) is permanently and totally disabled from nonservice-connected disability not due to his own willful misconduct; and 3) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.23. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. § 3.3 (2008). Pension is payable at a specified annual maximum rate, which is reduced on a dollar for dollar basis by income on a 12- month annualized basis. 38 U.S.C.A. § 1503; 38 C.F.R. § 3.271; M21-1, Part I, Appendix B. Unless an item, such as unreimbursed medical expenses, is specifically excluded, all income from all sources must be reported. 38 C.F.R. §§ 3.271, 3.272, 3.273. The rate of pension payable to a veteran is based on the amount of his countable income received and his number of dependents. It is not based on the amount of indebtedness he has incurred. In this case, the veteran has the requisite wartime service. He is also married and a has a 16 year old stepson. Although the evidence suggests that the veteran is living apart from his wife and stepson, there is no evidence to suggest that the veteran and his wife are divorced or that his wife and stepson are no longer dependent on him for support. In this regard, the Board notes that the veteran received additional pension for his wife and stepson, from the time his VA pension became effective October 12, 2000 until March 2005, when it was terminated. In a September 2005 claim for pension, VA Form 21-526, the veteran reported that he worked for the railroad and that his total annual earnings were $45,000.00 per year. He also reported that his stepson received Supplemental Security Income from the Social Security Administration in the amount of $540.00 per month. In addition, he noted that his wife received no income. In subsequent reports, he noted that his income had increased; and in his most recent Improved Pension Eligibility Verification Report, he reported that through December 1,2006 his gross year to date earnings were $60,333.58 and that his stepson received $7200.00 in gross wages from all employment. Effective December 1, 2004, the MAPR for a veteran with a dependent wife and child was $15033.00. To be deducted, medical expenses had to exceed 5% of MAPR or $665.00. M21-1, Part I, Appendix B. Effective 12-01-2005, the MAPR for a veteran with a dependent wife and child increased to $15,661.00. To be deducted, medical expenses had to exceed 5% of MAPR or $692.00. Id. Effective 12-01-2006, the MAPR for a veteran with a dependent wife and child increased to $16,176.00. To be deducted, medical expenses had to exceed 5% of MAPR or $715.00. Id. On his latest Medical Expense Report (VA Form 8416, dated in January 2007), the veteran reported that he had amassed unreimbursed medical expenses of $496.13. Although that report reflected the period from June 2002 through November 2006, even that amount is not sufficient to offset the veteran's income which clearly exceeds the applicable MAPR. Thus, he is not currently eligible to receive VA nonservice- connected disability pension benefits, and the appeal is denied. In arriving at this decision, the Board does not reach the question of whether the veteran is unemployable due to permanent and total disability. ORDER Service connection for lung disease is denied. An effective date prior to December 27, 2001 for service connection for squamous cell carcinoma of the right vocal cord is denied. A permanent and total disability rating for pension purposes is denied. REMAND The veteran seeks entitlement to a rating in excess of 10 percent for squamous cell carcinoma of the right vocal cord. He states that it is manifested primarily by hoarseness which impairs his employment with the railroad. In September 2000, the veteran underwent microlaryngoscopy by Dr. H., and the evidence, dated as late as April 2004, show that he continued to receive close supervision by Dr. H. More recent records, such as a February 2005 statement from the Boice-Willis Clinic shows that the veteran was being followed by Dr. K., an Ear, Nose, and Throat specialist in Smithville. Although the report of Dr. H.'s microlaryngoscopy has been associated with the claims folder, more recent records have not. Similarly, Dr. K.'s records have not been associated with the claims folder. In December 2002 and April 2003, the veteran was examined by VA, in part, to determine the extent of impairment due to his squamous cell carcinoma of the right vocal cord. However, neither of those examiners were able to visualize the larynx directly. Since the VA examination in April 2003, the veteran contends that the residuals of his squamous cell carcinoma have worsened. During the pendency of the appeal, the Court held that in order to establish an increased rating for the veteran's service-connected disabilities, the evidence had to show that such disabilities had worsened and the manner in which such worsening had affected the veteran's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Because the veteran's case was transferred to the Board prior to the Court's decision in Vazquez, the RO has not informed him in accordance with that holding. In light of the foregoing, additional development of the record is warranted prior to further Board consideration of the issue of entitlement to service connection for interstitial lung disease. Accordingly, the case is remanded for the following actions: 1. Notify the veteran as to substantiation of his claim for an increased rating, including clinical findings necessary for higher rating; that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (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 the types of medical and lay evidence that the claimant 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 relating to the disability. 2. Request that the veteran provide the name and address of Dr. K., and ear, nose, and throat specialist in Smithville and Dr. H. who performed the microlaryngoscopy on the veteran in September 2000. Then contact each one of those physicians directly and request that their records associated with their treatment of the veteran. Also request that the veteran furnish any such records he may have in his possession. Such records should include, but are not limited to, discharge summaries, consultation reports, X-ray reports, laboratory studies, daily clinical records, doctor's notes, nurse's notes, and prescription records. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the requested records are unavailable, and are not held by an agency or department of the Federal government notify the veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e). 3. If deemed appropriate by the RO/AMC, and only when the actions in parts 1 and 2 have been completed, the veteran may be scheduled for an otolaryngological examination by an examiner who has not seen him previously; to determine the extent of impairment due to the residuals of the veteran's squamous cell carcinoma of the right vocal cord. 4. When the actions directed above have been completed, undertake any other indicated development, if deemed by the RO/AMC to be appropriate under the law. Then readjudicate the issue of entitlement to an increased rating for squamous cell carcinoma of the right vocal cord. If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. The RO/AMC must ensure that all directed factual and medical development as noted above is completed. If the event that the examination report do not contain sufficient detail, the RO/AMC must take any appropriate action by return of the report to the examiner for corrective action. See 38 C.F.R. § 4.2 (If the findings on an examination report, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.). If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The veteran need take no action unless he is notified to do so. He has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs