Citation Nr: 1222902 Decision Date: 06/29/12 Archive Date: 07/10/12 DOCKET NO. 07-17 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a disability manifested by shortness of breath and chest pains, to include as secondary to service connected residuals of multiple laceration wounds and post-operative scars of the anterior chest wall. 2. Entitlement to service connection for a stomach and bowel disability, to include as secondary to service connected residuals of multiple laceration wounds and post-operative scars of the abdominal wall. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Yoo, Associate Counsel INTRODUCTION The Veteran had active service from April 1953 to March 1956. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 2006 by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). The Board notes that the Veteran's initial claim was for service connection for a disability manifested by shortness of breath. The medical evidence of record also indicates that the Veteran has complained of and was treated for left sided chest pains. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Given the foregoing, the Board has recharacterized the claim as entitlement to service connection for a disability manifested by shortness of breath and chest pains as indicated on the title page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 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 While the Board regrets the further delay that a remand of this case will cause, after a careful review of the Veteran's claims file the Board finds that once again the issue on appeal must be remanded for further development. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c) (2011). As stated in the previous remand by the Board in October 2009, the Veteran claimed that he has a disability manifested by shortness of breath, and a stomach and bowel disability that are secondary to the Veteran's service connected residuals of multiple laceration wounds and post-operative scars of the anterior chest wall and abdomen. The Veteran is service connected for (among other issues) multiple laceration wounds and post-operative scars, anterior chest wall and multiple laceration wounds, and post-operative scars, abdominal wall, both at 10 percent disability. In October 2009, based on the contradictory nexus opinions, lack of diagnoses, and the Veteran's statements, the Board found that further development was necessary and instructed the AMC to schedule the Veteran for VA examinations to determine whether the current respiratory or gastrointestinal disorders were secondary to the service connected laceration wounds and post-operative scars of the anterior chest wall and of the abdominal wall. In addition, private treatment records from Dr. C. K. Cartwright, Dr. P. S. Austin, and other sources identified by the Veteran, were absent from the record. Therefore, they were to be retrieved and incorporated in the claims file. In January 2010, the Veteran underwent VA examinations but the additional private treatment records from Lake Health Care Center, Dr. C. K. Cartwright, and Florida Hospital Waterman were not considered by the VA examiner prior to the examination and opinion. Therefore, in February 2011, the Board remanded the instant claim for additional development. Namely, the Board requested the VA examiner specifically address the findings and positive nexus opinions from Veteran's private physicians, Drs. P. S. Austin, C. K. Cartwright, and A. A. Caballero stated in letters dated October 2006. In September 2011, a VA examiner provided an addendum to the January 2010 VA examinations. The examiner opined that the Veteran's symptoms of shortness of breath and his gastrointestinal condition were less likely as not the result of military service. The examiner attributed the Veteran's shortness of breath to a history of smoking and age. The examiner also stated that the Veteran had significant symptoms of shortness of breath until 2006 when a pacemaker was inserted. The examiner opined that the Veteran's gastrointestinal problems began in the 1980s and that he has been diagnosed with irritable bowel syndrome. However, the VA examiner stated the Veteran's chest pains were at least as likely as not related to scars sustained while in service. Regarding the positive nexus opinion from the Veteran's private doctors, examiner questioned why Dr. Cartwright, a urologist, evaluated the Veteran for respiratory conditions. As for the positive nexus opinions offered by Dr. Austin and Dr. Caballero, the examiner restated their opinions but did not offer any discussion against their findings. 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). Moreover, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). Since the September 2011 VA addendum did not sufficiently comply with the instruction of the February 2011 remand, the RO/AMC must either obtain an addendum report from the earlier examiner or provide the Veteran another examination. 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) (2011). Expedited handling is requested.) 1. The claims file should be returned to the examiner who conducted the September 2011 VA addendum (or if unavailable, to another appropriate VA reviewer). In an addendum, the examiner should state whether it is at least as likely as not that any a disability manifested by shortness of breath and/or chest pain are symptoms of a disability or residuals of the laceration wound. The examiner is also asked whether it is at least as likely as not that any gastrointestinal disability diagnosed is related to his period of service or secondary to his laceration wound residuals. The examiner is asked to specifically address the findings and opinions from Veteran's private physicians, Drs. P. S. Austin, C. K. Cartwright and A. A. Caballero, stated in letters dated October 2006, and discuss the reasons contrary to their opinions in the new addendum. The entire claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination and this fact should be acknowledged in the report. All findings and conclusions should be set forth in a legible report. A clear rationale for all opinions rendered must be made. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. If the examiner who conducted the September 2011 VA addendum is not available, the Veteran should be afforded an appropriate VA examination(s) for his claimed disorders. The claims folder must be made available and reviewed by the examiner. All indicated studies and/or tests should be performed. 2. Upon completion of the addendum, review the examiners' report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims, considering all applicable laws and regulations. The AMC should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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. 2011). _________________________________________________ J. A. MARKEY 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) (2011).