Citation Nr: 1311237 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 07-16 989A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 30 percent for bronchial asthma. REPRESENTATION Appellant represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1976 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board, among other things, remanded the issue on appeal for additional development in September 2009 and December 2011. The issues of entitlement to service connection for leg, hip, shoulder, jaw, and psychiatric disorders have been raised by the record and addressed by the RO in correspondence dated in October 2012, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Although the issue on appeal has been previously remanded, the Board finds that based upon new information provided by the Veteran's attorney in October 2012, further development is required for an adequate determination. The new evidence included copies of a medical article published in 2008 (International Journal of COPD 2008:3(4) 693-699) which noted findings suggesting that the recommended spirometric indices were not optimal in differentiating between chronic obstructive pulmonary disease (COPD) and asthma. The attorney also asserted that the findings were inconsistent with the May 2012 VA examiner's opinion that pulmonary function test results strongly suggested the Veteran's predominant lung disease was not asthma with a reversible airway obstruction. RO consideration of the evidence was not waived. 38 C.F.R. § 20.1304 (2012). VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. Although the May 2012 VA examination report does not indicate whether the spirometric indices current in 2008 were applied in this case, the Board finds that additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be reviewed by the May 2012 VA examiner, or if the examiner is unavailable by an appropriate medical specialist, for clarification of the provided opinion as to the nature and severity of his service-connected bronchial asthma with consideration of the 2008 medical article added to the record in October 2012. All indicated examinations, tests, or studies necessary for an adequate opinion should be conducted. Opinions should be provided based on the results of any additional examinations or studies, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 2. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ Michael J. Skaltsounis 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).