Citation Nr: 1304795 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-46 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1955 to June 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2010 the Veteran failed to report for a requested hearing. This matter was before the Board in August 2012 when it was remanded for the RO to schedule the Veteran for another hearing. The hearing was scheduled in October 2012 and the Veteran again failed to report. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 When the Veteran filed his claim for service connection for COPD he requested that VA treatment records (from 2005 to the present) be obtained from Big Spring VA Medical Center (VAMC). It appears, from a review of the record, that such records have not been secured. As this indicates that there are possibly pertinent VA treatment records outstanding, and as such records are constructively of record, they must be secured. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition, in a January 2010 VA examination report, the examiner provided the results of pulmonary function studies; the report of those studies is not associated with the record. Further, the Board finds that another VA examination is required. Once VA undertakes the effort to provide an examination for a service connection claim, it must provide an adequate one, or at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Significantly, the examination/opinion offered on January 2010 VA examination is necessarily inadequate by virtue of the fact that it was premised on an incomplete record (as VA records from 2005 to November 2008 were not associated with the claims file). Furthermore, it appears the examiner relied on inaccurate data regarding the Veteran's pulmonary history. The examination report notes the Veteran had no history of productive cough or fever. To the contrary, an August 1962 service treatment report (STR) notes symptoms of upper respiratory infection (URI) with cough, and rhinorrhea; cough productive of yellowish sputum, and slight fever at night. The impression was pneumonitis. A January 1963 STR notes that he coughed up yellow sputum, but was unable to do it at that time; he was treated for bronchitis. An October 1966 X-ray report notes the Veteran reported a productive cough for the previous three days. The report notes questionable increased bronchial markings. An August (year not indicated) X-ray report notes the Veteran reported cough and fever. The report notes patchy infiltrate in the left costophrenic angle. Further, the examiner in his explanation of rationale notes that the Veteran had no treatment or history of significant respiratory illness while on active duty, other than bronchitis. As was noted above, pneumonitis was diagnosed and treated in service. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should secure for the record copies of the complete updated clinical records of all VA treatment or evaluation the Veteran has received for a respiratory disorder to specifically include records from Big Spring VAMC from 2005 to the present and a copy of the PFTs relied on by the January 2010 VA examiner. 2. The RO should then arrange for the Veteran to be examined by an appropriate physician to ascertain the presence, nature., and likely etiology of any respiratory disorder . The examiner must review the Veteran's claims file (including this remand) in conjunction with the examination. Any indicated studies and tests should be completed, and all clinical findings should be reported. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: a) Does the Veteran currently have a chronic respiratory disorder? Please cite to the factual data that support the conclusion (and account for any findings that might suggest to the contrary). Please identify any/each respiratory disorder found (by medical diagnosis) b) As to each respiratory disorder diagnosed, please opine whether such at least as likely as not (a 50% or better probability) is related to the Veteran's service, to include the complaints and treatment noted therein. The examiner must explain the rationale for all opinions. 3. The RO should review the record and readjudicate the Veteran's claim. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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 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). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).