Citation Nr: 1306289 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 11-01 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bronchial asthma. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In April 2011, the Board remanded these issues to the originating agency. However, as there has not been substantial compliance with the remand directives, the appeal must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). REMAND When the Board last reviewed the Veteran's claims in April 2011, it noted the Veteran's current diagnosis of asthma, as well as his account of chronic asthma since discharge from service. The Board determined that the Veteran should be scheduled for a VA examination. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In April 2011, the Veteran underwent a VA examination during which he reported that he was exposed to dust and other particles due to the grinding of sharp objects, while working in the tool room during service. He further reported that during such time, he developed breathing problems, which have continued since service. Upon review of the "records," the examiner diagnosed bronchial asthma. The examiner stated that the Veteran's chronic symptoms of asthma were not related to his in-service treatment or active service because there were no complaints of asthma during service, and the discharge examination was normal. The Board finds the report of the April 2011 VA examination to be inadequate for purposes of deciding the claim. The examiner failed to consider the Veteran's credible reported history of breathing problems since working in the tool room during service. The Veteran's service treatment records are silent for any complaints, treatment, or diagnoses of breathing problems; however, the Board cannot reject lay evidence simply because it is not accompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007). Further, although the examiner stated in his report that he had reviewed the "records," he did not make any reference to the post-service private treatment records which demonstrate treatment and diagnoses of asthma commencing within two months of the Veteran's discharge from service. Specifically, a March 1946 record shows a diagnosis of allergic asthma. In an August 1946 record, Dr. H.O. reported that the Veteran had been suffering from bronchial asthma for a number of years which probably developed during service; he further noted that the Veteran did not have a history of asthma prior to service. In an August 1946 letter, Dr. J.K. stated that there was presumptive evidence that the Veteran's bronchial asthma may be service-connected. An August 1957 record demonstrates treatment for bronchial asthma, and the Veteran's reported history that such condition was chronic since service. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Therefore, a new medical examination and opinion are necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, the disposition of this claim being remanded herein is directly relevant to the outcome of the instant claim for a TDIU, inasmuch as it may determine whether the Veteran satisfies the schedular criteria for a TDIU. Thus, this claim is "inextricably intertwined" with the issue of a TDIU, and the disposition of the TDIU claim must therefore be deferred pending the resolution of the preliminary matters. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington DC, for the following actions: 1. The RO or the AMC should arrange for the Veteran to be examined by a physician with appropriate expertise to determine the etiology of his bronchial asthma. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner in conjunction with the examination. Based upon the examination results and the review of the Veteran's pertinent medical history, the examiner should state whether it is at least as likely as not (i.e., a 50 percent or better probability) that the chronic asthma disorder had its onset in service or is etiologically related to any in-service disease, event, or injury. The examiner is instructed to consider the Veteran's account of his symptoms during and after service to be credible. The examiner is also requested to specifically comment on the post-service private treatment records dated in March 1946 through August 1957, which indicate diagnoses of asthma, and demonstrate the Veteran's reported history of complaints of breathing problems since service. The rationale for all opinions expressed must also be provided. 2. The RO or the AMC should ensure that the Veteran is provided with 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 files if the Veteran fails to report for the examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims files are returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) As noted above, this case has been advanced on the Board's docket. It also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Shane A. Durkin 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).