Citation Nr: 1308378 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-25 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for residuals of a collapsed right lung. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1975 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied, in pertinent part, the Veteran's request to reopen a previously denied claim of service connection for residuals of a collapsed right lung. The Veteran disagreed with this decision in June 2007. He perfected a timely appeal in October 2007. In a December 2007 rating decision, the RO essentially reopened the Veteran's previously denied service connection claim for residuals of a collapsed right lung and granted it on the merits, assigning a zero percent rating effective October 30, 2006. The Veteran disagreed with this decision in September 2008, seeking an initial compensable rating for his service-connected residuals of a collapsed right lung. He perfected a timely appeal in July 2009 and requested a Travel Board hearing. A Travel Board hearing was held at the RO in July 2012 before the undersigned and a copy of the hearing transcript has been added to the record. In September 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. Unfortunately, as is explained below in greater detail, the appeal is REMANDED again to the RO/AMC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that his service-connected residuals of a collapsed right lung are more disabling than currently evaluated. He specifically contends that this disability has resulted in chest pain (variously described as intermittent, episodic, or fleeting). He also specifically contends that this disability has rendered him unemployable. In its September 2012 remand, the Board highlighted at length the relevant medical evidence of record containing the Veteran's complaints of chest pain which he attributed to his service-connected residuals of a collapsed right lung. See Board remand dated September 28, 2012, at pp. 2-5. This review included a complaint of episodic right sided chest pain on VA outpatient treatment in August 2006 which the VA clinician apparently related to the Veteran's prior pneumothorax (or collapsed lung). Following VA examination in February 2007, when the Veteran complained of intermittent chest pain that was characterized as "somewhat" atypical, the VA examiner opined that this complaint was at least as likely as not the result of the Veteran's prior pneumothorax. By contrast, following VA examination in August 2007, a different VA examiner stated that the Veteran's "symptoms were of nonspecific chest pains which were fleeting, and were not even typical for pleuritic chest pain and they were even sometimes contralateral to the affected right side of the chest." Id., at pp. 3. Nevertheless, this same VA examiner concluded in November 2007 that the Veteran's pneumothorax residuals were as likely as not manifested as intermittent pleuritic pains "without any other objective findings of effects, specifically not on the pulmonary function tests." Following this review of the evidence demonstrating the Veteran's complaints of chest pain that he attributed to his service-connected residuals of a collapsed right lung, the Board concluded in its September 2012 remand that the VA examiner who saw the Veteran in August 2009 and in July 2011 (and did not address these complaints) should be asked to provide an addendum to his most recent examination report dated in July 2011. Id., at pp. 5. The Board requested that this VA examiner opine whether the Veteran's service-connected residuals of a collapsed right lung caused chest pain. The Board then stated: Regardless of whether the [July 2011 VA] examiner finds that residuals of a collapsed right lung cause chest pain, the Board seeks an evaluation of such symptoms. In this regard, based on a review of the Veteran's complaints of chest pain documented throughout the claims file, the examiner is requested to provide an opinion on the severity of the chest pain and [the] degree of functional impairment caused by the chest pain (e.g., minimal, mild, moderate, severe, etc.). The examiner should also provide an opinion concerning the impact of the Veteran's chest pain on his ability to work, to include whether it renders him unemployable. Id., at pp. 6. The Board finally asked this VA examiner to provide a complete rationale for any opinions expressed. Unfortunately, although the Veteran's claims file was provided to the VA examiner who examined him in August 2009 and in July 2011, this examiner did not provide all of the opinions requested by the Board in its September 2012 remand. A review of a November 2012 addendum provided by the same VA examiner who saw the Veteran in August 2009 and in July 2011 indicates that he stated: In my last assessment note Veteran complain[ed] of chest pain, I that was that was year after incident of pneumothorax. I can not say I am aware of any specifics such as duration or or intensity of the pain. I also am clear that I do not think pain is related to service connected pneumothorax. The Board finds that the November 2012 addendum, in addition to being difficult to understand, does not address all of the questions posed in the September 2012 remand. First, the Board cannot determine what the VA examiner is trying to say in the first sentence of the November 2012 addendum. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, the Board is prohibited from trying to guess the meaning of the first sentence of the November 2012 addendum from the VA examiner. Accordingly, given the awkward phrasing of the first sentence in the November 2012 addendum, it must be returned for clarification from the VA examiner. Second, the VA examiner was asked to determine whether the Veteran's service-connected residuals of a collapsed right lung caused chest pain. A review of the November 2012 addendum indicates that this examiner concluded that pain was not related to the Veteran's service-connected residuals of a collapsed right lung (which the examiner referred to as pneumothorax). No rationale was provided for this opinion, however. Third, the VA examiner stated in the November 2012 addendum that he was not "aware of any specifics such as duration or or [sic] intensity of the [chest] pain." This statement misstates the Board's question asked in its September 2012 remand regarding the Veteran's complaints of chest pain. In its September 2012 remand, the Board asked the VA examiner to review the Veteran's claims file and determine the severity of his documented complaints of chest pain. See Board remand dated September 28, 2012, at pp. 6. It is not clear why, in his November 2012 addendum, the VA examiner was unable to accomplish this review and state whether the Veteran's complaints of chest pain were mild, moderate, or severe in intensity. Finally, the VA examiner did not discuss in the November 2012 VA addendum the impact of the Veteran's chest pain on his ability to work, to include whether it renders him unemployable. In summary, given the deficiencies in the November 2012 addendum, the Board finds that it is inadequate for purposes of evaluating the Veteran's service-connected residuals of a collapsed right lung. See 38 C.F.R. § 4.2 (2012). The Board also finds that this addendum must be returned to the VA examiner who provided it so that he can address the questions originally posed by the Board in its September 2012 remand and answer them, to the extent possible. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Given the above, another remand is required. Accordingly, the case is REMANDED for the following action: 1. Send the claims file and a copy of this remand to the VA examiner who provided an addendum dated on November 1, 2012, concerning the Veteran's service-connected residuals of a collapsed right lung. Following a review of the Veteran's claims file, this examiner should be asked to provide another addendum addressing the nature and severity of the Veteran's service-connected residuals of a collapsed right lung. First, this examiner must clarify the first sentence in his November 1, 2012, addendum which reads, " In my last assessment note Veteran complain of chest pain, I that was that was year after incident of pneumothorax." This examiner should explain what he was trying to say here in his November 1, 2012, addendum. Second, this examiner must provide a complete rationale for his opinion in the November 1, 2012, addendum that the Veteran's chest pain is not related to his service-connected residuals of a collapsed right lung (or pneumothorax). Third, in regard to the Veteran's documented complaints of chest pain on August 2006 VA outpatient treatment (right sided chest pain "pleuritic in nature related to pneumothorax"), February 2007 VA examination (intermittent chest pain "somewhat" atypical and related to pneumothorax), August 2007 VA examination (non-specific, fleeting chest pain), and on November 2007 VA examination (intermittent pleuritic pains residuals of pneumothorax) the examiner should nevertheless provide an opinion on the severity of the chest pain and degree of functional impairment caused by the chest pain (e.g., minimal, mild, moderate, severe, etc.) If it is not possible to characterize the intensity and functional impact of the Veteran's chest pains documented in these outpatient treatment records and examination reports, then this VA examiner must explain why this opinion cannot be provided. If it is not possible to provide the opinion without re-examining the Veteran, then the Veteran should be scheduled for another VA examination. Fourth, the examiner must provide an opinion on the impact of the Veteran's chest pain on his ability to work, to include whether it prevents him from securing or maintaining substantially gainful employment. A complete rationale must be provided for any opinions expressed. If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above opinion request. The examiner must provide a supporting rational for the opinion provided. If it is determined that another examination is necessary such should be scheduled. 2. Thereafter, review the claims file to ensure that the requested development has been completed to the extent possible. In particular, review the addendum provided by the November 2012 VA examiner (or other examiner) to ensure that it is responsive to and in compliance with the directives of this remand; if not, take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After the above actions have been completed, readjudicate the Veteran's claim, including consideration of whether a referral for a determination on whether an assignment of a higher evaluation on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1) is warranted. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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. 2012). _________________________________________________ TANYA A. SMITH 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) (2012).