Citation Nr: 1313074 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-15 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable rating for right foot injury residuals. 2. Entitlement to an initial compensable rating for tuberculosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2002 to December 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Subsequently, the case was transferred to the jurisdiction of the RO in Philadelphia, Pennsylvania. In his April 2009 substantive appeal, the Veteran requested a video conference hearing before a Veterans Law Judge at the RO. The Veteran received notice of the hearing, scheduled for September 2012, but failed to appear. Under these circumstances, the request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Virtual VA electronic claims file has been reviewed; a review of the documents reveals VA treatment records pertinent to the issues on appeal. In March 2008 the Veteran raised the issue of entitlement to service connection for an unspecified illness connected with his service in Iraq. This issue has not been adjudicated by the agency of original jurisdiction, and the Board does not have jurisdiction over it. Therefore, it is referred to the agency of original jurisdiction for appropriate action. The issue of entitlement to a compensable rating for tuberculosis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT At no time since the award of service connection are the Veteran's right foot injury residuals shown to have been manifested by symptoms or impairment that may reasonably be characterized as moderate foot injury, or approximating such level of severity. CONCLUSION OF LAW A compensable rating is not warranted for right foot injury residuals. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an August 2007 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. This notice provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). The case was last adjudicated in December 2011, and any defect as to timing of notice is harmless, non-prejudicial error. Dingess/Hartman, 19 Vet. App. 473. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA examination reports, and VA treatment records. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this case, the Veteran is seeking initial compensable ratings for right foot injury residuals that were incurred in service, which have been rated by the RO under the provisions of Diagnostic Code 5284, the criteria for rating general foot injuries. A moderate foot injury warrants a 10 percent disability evaluation. A moderately severe foot injury warrants a 20 percent disability evaluation, and a severe foot injury is assigned a 30 percent disability evaluation. A note to Diagnostic Code 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board must also consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability rating for a disability whose criteria is related to the limitation of motion. 38 C.F.R. §§ 4.40, 4.45; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). VA's Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran contends that his right foot injury residuals warrant a compensable initial rating. The Veteran was granted service connection in November 2007 for a residual injury to the second metatarsal of his right foot following an injury in 2002 in service. The Veteran stated in March 2008 that he has pain and discomfort in his foot on a daily basis and that he has difficulty walking across campus to his classes. In September 2007 the Veteran was afforded a VA examination. The Veteran reported that he had sustained a fracture to the right foot in 2002 after someone had dropped a rifle on it. He reported having an intermittent dull ache on the top of his right foot that occasionally, after running or walking, flared to a sharp pain that lasts from several minutes to an hour. He denied any stiffness, locking, swelling, or instability. The examiner noted mild tenderness over second metatarsal, with normal appearance and no loss of function or other deformities. The examiner noted that no arthritis or functional limitation was found in the Veteran's joints. X-rays were taken of the Veteran's right foot, which showed no calcaneal spurring, fracture, or dislocation, but did show slight deformity to the contour of the second metatarsal suggesting posttraumatic changes. The radiologist found there to be "probable posttraumatic deformity of the right second metatarsal, otherwise no acute process," and the Veteran was diagnosed with residuals of a right metatarsal injury. In August 2010 the Veteran was afforded an additional VA examination. The examiner reviewed the claims file and noted the Veteran had fractured his right second metatarsal in 2002. The Veteran reported having pain in his right foot upon walking or standing and having flare-ups at least weekly following extended walking which would be alleviated with rest. The Veteran reported that he wears boots to support his feet and that he is able to walk one to three miles. The examiner noted tenderness, callosities, and some abnormal weight bearing in the right foot. He found no signs of hammertoes, hallux valgus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, flatfoot, muscle atrophy, or other foot deformity. X-rays were taken of the right foot which showed no acute or healing fracture or other osseous abnormality. Joint spaces appeared well-maintained, without significant degenerative changes, with normal hindfoot alignment, and with unremarkable visualized soft tissue. The examiner found the X-rays to indicate "normal right foot series" and diagnosed the Veteran with recurrent right foot strain. He noted that this disability had a mild impact on the Veteran's ability to exercise, play sports, drive, and perform recreation, and that the Veteran was intolerant of prolonged walking or running and found his foot symptoms "distracting." The Veteran reported not having missed any work during the past 12 months. The Veteran has indicated that he receives his medical care through the VA health care system. In April 2009 the Veteran reported to his primary care provider that he had occasional discomfort in his right foot due to an injury in service that didn't heal properly. The examiner noted no edema or discoloration. Since that time the Veteran's VA treatment records contain no additional complaints or treatment for any disorders of the feet. In primary care examinations in February 2010 and December 2010, the Veteran denied any swelling or pain in his joints or pain in his legs when resting or standing. In July 2011 the Veteran denied any musculoskeletal complains and no edema was found in the extremities. Based on a review of the evidence above, at no time during the appeal period have the Veteran's right foot injury residuals been shown to have been manifested by symptoms productive of moderate foot disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. Here, the objective medical evidence shows that the Veteran's right foot disability is manifested by subjective complaints of moderate pain following exertion, and with objective evidence of tenderness that results in only mild impairment. There is no X-ray evidence of any right foot abnormalities other than a slight deformity to the contour of the second metatarsal found in the September 2007 X-rays. The September 2007 and August 2010 VA examiners found that clinical evidence demonstrated mild impairment on examination, with no objective evidence of painful motion, swelling, instability, or weakness at any time. While evidence of abnormal weight bearing was observed in 2010, indicated by the presence of calluses on the Veteran's right foot, the examiner noted normal gait and made no indication that the abnormal weight bearing was causing the Veteran anything more than mild impairment in highly physical activities. The Board concedes the Veteran's uncontradicted complaints of pain as competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2). Indeed, both VA examiners confirmed the Veteran has tenderness in his right foot. Nonetheless, this pain symptomatology by itself indicates only a mild, not a "moderate" foot injury. Since the above-mentioned VA examination reports revealed no objective findings other than some tenderness, his right foot disability is not analogous to a moderate foot injury under Diagnostic Code 5284, nor does pain, alone, provide an additional basis for a higher evaluation, and an increased rating is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5284; see DeLuca, 8 Vet. App. at 204-7. The Board acknowledges that the Veteran reported flare-ups of increased pain after extensive walking. The Veteran has reported that his right foot symptoms are a distraction when he is undergoing physical activity, but at no time has the Veteran indicated that his right foot disability caused any functional limitation in any of his activities, nor has either VA examiner found there to be any functional limitations or painful motion that would restrict functional motion. There is therefore no indication that the Veteran suffers from functional losses or disability due to his right foot injury residuals that would approximate a finding of moderate foot injury in conjunction with the criteria of 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca, 8 Vet. App. 204 -7. Taking into account all the evidence of record, the symptomatology related to the Veteran's right foot injury residuals cannot accurately be characterized as moderate. While the Veteran is competent to report the symptoms he experiences, and the Board finds him credible in this regard, the symptoms he has reported, such as discomfort and difficulty walking long distances, are consistent with the assigned noncompensable evaluation reflecting mild impairment. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board also has considered the applicability of alternative diagnostic codes for evaluating the Veteran's foot disability, but finds that no higher rating is assignable. The August 2010 examiner specifically indicated that there were no signs of hammertoes, hallux valgus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, flatfoot, muscle atrophy, or other foot deformity, which would warrant rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283 (2012). X-rays were taken both in September 2007 and August 2010, which showed no indications of any additional foot disabilities or deformities. Thus, the disability in question is not shown to involve any factors warranting evaluation under any other provisions of VA's rating schedule. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher, 4 Vet. App. at 60. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and would provide separating criteria for any additional foot deformities, were they to manifest. The Veteran has reported that he still works full time and has not missed any days of work due to his disability. The record does not show that the Veteran has required any hospitalization for his right foot injury at any time during the appeals period, nor is there evidence in the medical records of an exceptional or unusual clinical picture. The Veteran's disability picture is sufficiently contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. Consequently, referral for extraschedular consideration is not warranted. Based on the foregoing, the Board finds that there is no basis by which the Veteran's current right foot injury residuals can be granted a compensable rating. As such, the Veteran's claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial compensable rating for right foot injury residuals is denied. REMAND The Board's review of the claims file reveals that further action on the remaining claim on appeal is warranted. The Veteran claims that his currently diagnosed tuberculosis warrants a compensable rating. The Veteran has asserted, essentially, that his tuberculosis either is or has previously been active and that he has developed additional symptoms which are related to his tuberculosis infection but have not been taken into account by VA. He has stated that he developed shortness of breath and pain in his lungs after he was deployed to Iraq and tested positive for tuberculosis. The Veteran's service treatment records show that he first tested positive for tuberculosis from a purified protein derivative (PPD) test performed in service in September 2006. His September 2006 treatment record noted that the Veteran denied any signs or symptoms of active tuberculosis, and a November 2006 treatment record noted that the Veteran was free from symptoms suggestive of active disease and that his chest X-ray findings were normal. This raises the yet unanswered question of whether it is possible to have a positive PPD test without having active tuberculosis. In September 2007 the Veteran was afforded a general VA examination. The Veteran reported that he was currently being treated for primary tuberculosis and that he had been experiencing chest pain and shortness of breath. Spirometry testing was performed which found no evidence of limitation of airflow and lung volume and diffusion capacity within normal limits. The examiner opined that due to the normal spirometry results the Veteran had exercise induced bronchospasms which were less likely than not secondary to tuberculosis. The Veteran's other treatment records show that he has been receiving regular treatment for tuberculosis and difficulty breathing since his separation from service. In a June 2007 primary care examination it was noted that the Veteran reported having a positive PPD test, but was currently asymptomatic for tuberculosis. The Veteran also reported having had shortness of breath and a burning sensation in his lungs since September 2006. After chest radiograph imaging was performed in June 2007, the Veteran's pulmonologist found Ghon's complex, a "primary parenchymal lesion of primary pulmonary tuberculosis," which he found to be highly suggestive of primary tuberculosis. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 723 (2nd ed. 2012). In June and July 2007 the Veteran was treated for raised lesions on his right shoulder and axilla, which his physician diagnosed as lichenoid dermatitis, but which he had previously thought could be related to cutaneous tuberculosis. In March 2008, April 2008, and August 2009 the Veteran continued to complain of shortness of breath and a burning sensation after walking at a moderate pace or in cold weather. In August 2008, the Veteran was diagnosed with primary tuberculosis which was stable after having completed two months of therapy. The Veteran was afforded an additional VA examination in August 2010. The Veteran complained of continuing shortness of breath, and spirometry testing was performed which found no obstruction or restriction and good postbronchodilator response. The examiner diagnosed the Veteran with latent tuberculosis infection and found no residuals of inactive tuberculosis. In November 2011 the RO requested an addendum opinion from a VA pulmonologist regarding the Veteran's tuberculosis and whether it had ever been active/primary or had stayed inactive/latent. The pulmonologist's opinion stated that the Veteran had a history of "what was characterized as primary tuberculosis manifested by a positive tuberculin skin test conversion in June 2007." He stated that the Veteran had prior X-ray which showed possible Ghon complex, but he was unsure whether he agreed with this finding. The pulmonologist further stated that "in terms of being active of chronic, certainly when [the Veteran] converted his tuberculin skin test he did have evidence of a recent conversion," but that it was "hard to stipulate that this was active disease." He also noted that he did not believe the Veteran's reactive airway disease was related to prior primary tuberculosis. In light of the evidence above, a new VA examination is therefore necessary to consider all of the Veteran's medical history and examination reports in order to determine the full severity of his tuberculosis disability, including whether it has ever, at any time, been active/primary. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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 one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the record continues to be unclear on whether the Veteran's tuberculosis has ever been active. The September 2007 examiner did not discuss whether the Veteran's tuberculosis had ever been active, and while the August 2010 examiner diagnosed the Veteran with latent tuberculosis, he did not discuss the Veteran's VA treatment records which include treatment for active tuberculosis. In November 2011 the claims file was given to a VA pulmonologist to assess whether the Veteran's tuberculosis had ever been active, but he found that he was unable to determine whether it ever had. He did not, however, fully indicate whether it was a lack of evidence or limits of medical knowledge which caused him to be unable to provide the requested opinion, and further elaboration on this issue is necessary. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Additionally, none of the VA opinions have fully discussed the Veteran's medical history, including the likely etiology of his breathing difficulties and his treatment for right shoulder lesions which were at one time thought to possibly be related to tuberculosis. Further, it is unclear whether a positive PPD test indicates that there was active tuberculosis. Hence, the RO/AMC should arrange for the Veteran to undergo a new VA examination, by an appropriate examiner, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, may well result in denial of the claim (as the original claim will be considered on the basis of evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the RO/AMC must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. The record also indicates that the Veteran has been receiving regular medical treatment for tuberculosis and breathing difficulties from the Camp Hill VA Outpatient Clinic, part of the Lebanon VA Medical Center in Lebanon, Pennsylvania. The claims file currently contains his VA treatment records only up to July 2011. As any more recent treatment records may be directly pertinent to the current issue, all outstanding VA treatment records from the Lebanon VA Medical Center and affiliated facilities should be obtained, to the extent available, and associated with the claims file. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the Lebanon VA Medical Center and affiliated facilities all outstanding, pertinent records of medical treatment of the Veteran from July 2011 to the present. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records received should be associated with the claims file. 2. After the above development has been completed, schedule the Veteran for a VA examination with a pulmonologist or other qualified expert to determine the current nature and severity of his service-connected tuberculosis. The claims folder must be provided to the examiner as part of the examination. The examiner must specify in the report that the claims file, including the Veteran's service treatment records and private medical records submitted were reviewed. After reviewing the record and examining the Veteran, the examiner should: A) Determine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected tuberculosis has, at any time, been active or primary. If it has been active in the past, the examiner should attempt to determine the approximate date that the Veteran's tuberculosis became inactive. In entering an opinion, please also discuss whether it would be possible to have a positive PPD test without having had active tuberculosis, or whether a positive PPD test would have to indicate active tuberculosis. B) Perform pulmonary function testing and provide detailed results of all tests. C) Provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's breathing difficulties (a) were caused or (b) were aggravated (worsened beyond the natural progression) by the Veteran's service-connected tuberculosis. If breathing problems were unrelated to the tuberculosis, that too should be set out. D) Discuss whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's right shoulder lesions are related to his service-connected tuberculosis. E) Provide a discussion of any additional present symptoms caused by the Veteran's tuberculosis. A complete rationale for all opinions provided must be given. If the examiner determines that he or she cannot provide the requested opinion without resorting to mere speculation, the examiner must provide a complete, clearly-stated rationale for that conclusion which reflects full consideration of all pertinent evidence. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. The RO/AMC must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. The RO/AMC must ensure that all additional requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Following the completion of the above, the RO/AMC should review the evidence and determine whether the claim may be granted. If not, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs