Citation Nr: 1240145	
Decision Date: 11/23/12    Archive Date: 11/27/12

DOCKET NO.  07-19 010	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to a compensable disability rating for vocal cord dysfunction.  

2.  Entitlement to a total disability rating based on individual unemployability.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

James G. Reinhart, Counsel


INTRODUCTION

The Veteran served on active duty from September 1996 to June 1999.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

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 April 2011, the Board remanded this case so that VA could meet its duty to assist the Veteran in substantiating his claim by providing him with an examination to determine the nature and severity of his service-connected vocal cord dysfunction and its effect on employment.  The Board directed that all indicated tests should be accomplished including lung function testing (forced expiratory volume in one second and flow volume loop).  The Veteran is currently evaluated for this disability under 38 C.F.R. § 4.97a, Diagnostic Code 6520 which is based on these pulmonary function tests.  

Of record is a one paragraph report of a May 2011 examination.  The examiner indicated that the Veteran did not laryngoscopy was accompanied by constant gagging and it was difficult to visualize his larynx.  The examiner then commented that his paradoxical vocal fold motion was due to his time in service but it was the examiner's opinion that it was a manifestation of an underlying psychiatric problem involving anxiety.  The examiner indicated that pulmonary walking tests were conducted.  There is no indication that the forced expiratory volume in one second and flow volume loop test that the Board directed by conducted were conducted.  There has not been compliance with the Board's remand instructions; a fact that in itself requires another remand.  See Stegall v. West. 11 Vet. App. 268 (1998).  

Accordingly, the case is REMANDED for the following action:

1.  Ensure that the Veteran is scheduled for a compensation and pension examination to include pulmonary function testing of forced expiratory volume in one second and flow-volume loop testing.  The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed.  The examiner must provide findings as to all symptoms of the Veteran's service-connected vocal cord dysfunction and the limitation of activity imposed by the condition.  Any opinions rendered must be supported by a complete rationale.  

2.  Then, readjudicate the issue on appeal.  If the benefit sought is not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto.  

The Veteran 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. 2012).

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_________________________________________________
FRANK J. FLOWERS
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) (2012).