Citation Nr: 1309385 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 10-04 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a respiratory disability, claimed as a lung condition. WITNESS AT HEARING ON APPEAL Veteran, spouse ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that denied reopening a claim for service connection for a lung condition. In April 2012 a Board hearing was held at the RO before the undersigned; the transcript is of record. In an October 2012 decision the Board reopened the claim for service connection for a respiratory disability and remanded the issue for further development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 The United States Court of Appeals for Veterans Claims (hereinafter: the Court) held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The October 2012 Board remand included instructions that the RO/AMC should attempt to obtain any outstanding VA treatment records prior to March 1999. The instructions also informed the Veteran that he could obtain the records himself and submit them to the RO in order to expedite his own case and assist the VA. Unfortunately there was some confusion as to the instructions and the AMC did not attempt to obtain the records, noting in the January 2013 supplemental statement of the case (SSOC): For reasons unclear from the record the Board ordered our office to have you get the government treatment records. The Board remand instructions informed the Veteran that he could attempt to get any such VA records in an effort to expedite his claim, not that it was his duty to obtain any VA records. This was done in order to both expedite the case and avoid needless work from the AMC. In a November 2012 correspondence the Veteran stated that he had gone to the VA in Indianapolis and ordered his VA records. The Veteran related that he was told that it would take two to three weeks to get the records, but he would send in the records when he did. In a February 2013 letter the Veteran reported that although he had gone to the VA records department, he had been told that the records would not be given to him and he would have to request them from Washington, DC. As such the Veteran was not able to obtain any VA records. Although VA treatment records were added to the Virtual VA file in November 2012, the treatment records cover the time period March 1999 to October 2012. The previous Board remand instructions were for the RO/AMC to obtain VA treatment records prior to March 1999, and if none were available to make a formal finding of unavailability. As such, an additional remand is required. A remand for an additional medical opinion is also required. In November 2012 a VA examination was conducted. The examiner reviewed the claims file, evaluated the Veteran and diagnosed right hemidiaphragm paralysis which was shown by x-ray in 2008. The examiner opined that the Veteran's lung disability was less likely that not incurred in or caused by the claimed in service injury event or illness, stating in the rationale section that the elevated hemidiaphragm had occurred since 2005, documented by chest x-rays. The examiner did not address the Veteran's in-service complaints of coughing; in April 1966 when physical examination revealed moist crackling of the lungs and an assessment of questionable bronchiectasis by history was made and in February 1967; or the Veteran's contention that a respiratory disorder manifested in service was severe enough that he was offered a medical discharge. As such, the VA examination is inadequate. An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall attempt to obtain any outstanding records from the Indianapolis VA Medical Center, dated prior to March 1999. If no additional records exist, or they are otherwise unavailable, a formal finding of unavailability shall be associated with the claims file. 2. After completion of the above, request an addendum from the examiner who conducted the November 2012 VA examination. If the November 2012 VA examiner is no longer available, another examiner can provide the opinion, and conduct another examination if deemed necessary. The examiner is to provide an opinion as to whether the Veteran's current respiratory and/or lung disability is at least as likely as not related to his in service lung complaints and treatment. The examiner is to provide an explanation as to why the current disability is or is not related to the in-service lung complaints. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Following completion of the above, the AMC should review all relevant evidence and re-adjudicate the service connection claim. If the desired benefit is not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran should be afforded an opportunity to respond to the SSOC before the claims file is returned to the Board. 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 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). _________________________________________________ JOHN J. CROWLEY 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).