Citation Nr: 1019366 Decision Date: 05/25/10 Archive Date: 06/09/10 DOCKET NO. 02-08 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for service-connected chronic obstructive pulmonary disease (COPD) with bronchiectasis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1955. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2002 decision by the RO in Houston, Texas that, in pertinent part, denied an increase in a 10 percent rating for service-connected COPD with bronchiectasis. In December 2003, and August 2006 the Board remanded the case to the RO for additional development. In February 2003, a personal hearing was held before the undersigned Acting Veterans Law Judge. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In the Board's August 2006 Remand, it noted that the criteria for evaluating the Veteran's pulmonary condition are based primarily on the results of pulmonary function tests. Citing 38 C.F.R. § 4.97, Diagnostic Codes 6600, 6601, 6604. The Board stated that if the disability is rated under Diagnostic Codes 6601 or 6604, pertaining to bronchiectasis and COPD, respectively, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) results must be obtained. The Board observed that prior pulmonary tests noted unreliable results, and/or poor efforts by the Veteran, and that an increased rating may not be authorized on the basis of unreliable test results. The Board further observed that although VA pulmonary function tests (PFT's) were performed in December 2001, and October 2004, DLCO (SB) results were not obtained. The Board therefore directed, in part, that the Veteran be afforded another VA pulmonary examination, "including all necessary pulmonary function tests, including DLCO (SB), Forced Expiratory Volume in one second (FEV-1) and Forced Vital Capacity (FVC)." In March 2007, the Veteran was afforded an examination, and the examination report indicates that PFT's were performed. The results of the PFT's are discussed in the examination report, and in an associated pulmonary note dated that same month. However, as noted in the Veteran's representative's March 2010 brief, the actual results of the Veteran's March 2007 PFT's are not of record. As previously stated, the criteria for evaluating the Veteran's pulmonary condition are based primarily on the results of such tests. The Court has indicated that it constitutes error on the part of the Board to fail to insure compliance with its directives. Stegall v. West, 11 Vet. App. 268 (1998). In this case, it appears that the Board's August 2006 Remand instructions have not been substantially followed, that the documentation associated with the March 2007 VA examination report is incomplete and insufficient for ratings purposes, and that all relevant VA reports are not of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also VAOPGCPREC 12- 95, 60 Fed. Reg. 43186 (1995). Accordingly, on Remand, an attempt must be made to obtain the results of the Veteran's March 2007 VA PFT. Furthermore, given the amount of time that has elapsed since the Veteran's March 2007 VA examination (i.e., a period of over three years), the Veteran should be afforded another examination, to include PFT's. VA's statutory duty to assist the veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2009). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO/AMC should ask the Veteran to identify all health care providers who have treated him for respiratory symptoms after December 2008 (i.e., after the most recent reports of record), in order to determine if relevant records exist that are not currently associated with the claims files. Should any such treatment be identified, after securing any necessary releases, the RO should attempt to obtain these records. 2. The RO/AMC should attempt to obtain the results of the Veteran's March 2007 VA pulmonary function tests. If these records can be obtained after an exhaustive search, VA's efforts, and any resolution determined, must be fully documented for the record, and the Veteran should be notified in accordance with the provisions of 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(e). 3. The RO should schedule the Veteran for a VA pulmonary examination to determine the current level of severity of his COPD with bronchiectasis. The claims file and a copy of this remand should be provided to and reviewed by the examiner, and the examination report should reflect that this was done. The examiner should identify all current pulmonary disorders, and all necessary pulmonary function tests must be performed, including DLCO (SB), FEV-1 and FVC. The examiner should be provided with a copy of the rating criteria of Diagnostic Codes 6600, 6601, and 6604 prior to the examination. The examiner is advised that prior pulmonary function tests have noted unreliable results, and/or poor efforts by the Veteran. The examiner should make every attempt to obtain reliable results, and should indicate whether this is not possible. If any non-service-connected pulmonary disorders are diagnosed, the examiner should attempt to identify which symptoms result solely from service-connected COPD with bronchiectasis. 4. The RO should then readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence, and applicable law and regulations considered. The Veteran and his representative should be given an opportunity to respond to the SSOC. 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). 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. 2009). _________________________________________________ SUSAN J. JANEC Acting 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) (2009).