Citation Nr: 1136878 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 07-37 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a compensable rating for retained foreign bodies in the posterior thorax, residual of shrapnel fragment wound. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama, (RO). 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 The Board's review of the claims file reveals that further development on the issue of entitlement to a compensable rating for retained foreign bodies in the posterior thorax, residual of shrapnel fragment wound, is warranted. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2011). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A longitudinal review of the record indicates the Veteran sustained multiple shrapnel injuries during service, including to the posterior portion of left upper lobe. (See April 1977 VA X-ray report). Service connection was ultimately granted for these residuals, and the disability is rated by analogy under Diagnostic Code 6843 (traumatic chest well defect, pneumothorax, hernia, etc.). Ratings under Diagnostic Code 6843 are assigned under the General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840-6845) on the basis of pulmonary function test (PFT) results. 38 C.F.R. § 4.97, Diagnostic Code 6843 (2011). Unfortunately, while the Veteran was provided with a VA examination in June 2006 to evaluate his service-connected disability, PFT testing was not conducted during that examination. A chest X-ray was noted to reveal a few small shrapnel fragments in the left upper lobe zone and in the left paratracheal region. An additional VA examination is also necessary to reconcile a conflict in the record to determine whether lumbar symptoms described by the Veteran are attributable to this service-connected disability. In this regard, the VA nurse practitioner who conducted the June 2006 VA examination found no relationship between a current lumbar spine impairment (lumbar spondylosis) and the service-connected shrapnel wound residuals at issue while a private physician (identified as J. P. H., M. D.) concluded in a September 2006 statement that the Veteran had some back disability due to the shrapnel wound in the posterior chest. In addition, the Veteran has asserted that his back pain was attributed to his service-connected residuals of retained foreign bodies in the posterior thorax, stating in his November 2007 substantive appeal that his back pain was severe, that he cannot sleep on the right side of his back, and that he felt pain in his back on movement as well as when he took deep breaths. 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); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the AMC should arrange for the Veteran to undergo a VA examination at an appropriate VA medical facility to determine the severity of his service-connected residuals of retained foreign bodies in the posterior thorax. The claims file reflects that the Veteran has received medical treatment for his service-connected residuals of retained foreign bodies in the posterior thorax from the VA Medical Center (VAMC) in Bay Pines, Florida (to include the Collier Community Based Outpatient Clinic (CBOC)), as well as the Central Alabama Veterans Health Care System (CAVHCS) (to include the Dothan CBOC); however, the claims file only contains VA treatment records from those facilities dated up to September 2005 and February 2006, respectively. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file any additional outstanding VA records. Accordingly, the case is REMANDED for the following actions: 1. The AMC should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his service-connected residuals of retained foreign bodies in the posterior thorax for the time period from December 2004 to the present. Of particular interest are any private treatment records from J. P. H., M. D. The AMC should also obtain VA clinical records pertaining to the Veteran's service-connected residuals of retained foreign bodies in the posterior thorax from the Bay Pines VAMC for the period from September 2005 to the present and from the CAVHCS for the period from February 2006 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(c)(2),(e). 2. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of all symptomatology attributable to his service-connected disability of retained foreign bodies in the posterior thorax. All indicated tests and studies are to be performed, to include pulmonary function testing. Prior to the examination, the claims folder must be made available to the examiner conducting the examination for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Additionally, the examiner should render opinions as to the following directives: a) Are any current back symptoms, to include pain, casually related to the service-connected posterior thorax disability as opposed to an unrelated cause, such as lumbar spondylosis? b) If examiner should find that no current back complaints are related to the Veteran's service-connected disability, he or she should provide a rationale for rejecting the conclusions to the contrary contained in the September 2006 private physician's statement of record. The examiner should include a complete rationale for the findings and opinions expressed in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims file. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations--specifically to include consideration of all of the evidence added to the record since the November 2007 SOC. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2010). _________________________________________________ J. D. DEANE 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) (2010).