Citation Nr: 1313382 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-16 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for vocal cord dysfunction/laryngeal dyskinesia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service from August 1985 to March 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the Board at a March 2011 hearing. A transcript of the hearing is of record. This case was previously before the Board in August 2012, at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) for further development. 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 As noted above, the instant claim was remanded by the Board in August 2012 for further development. For the reasons discussed below, another remand, with ensuing delay, is unfortunately required. In the August 2012 remand, the Board instructed that the Veteran be contacted and asked to identify any private treatment providers and return the appropriate medical release forms. The AOJ was then instructed to obtain the identified private treatment records and, if they were found to be unavailable, notify the Veteran so that he may be afforded an opportunity to obtain these records himself. In response to VA's request, the Veteran identified private treatment at Maryvale Hospital and Mayo Clinic, and signed and returned corresponding medical releases. The AOJ contacted both facilities and received records from Maryvale Hospital in December 2012. However, also in December 2012, Mayo Clinic replied that the requested records could not be provided because the medical release form signed by the Veteran was inadequate. Mayo Clinic included an authorization form and requested VA have the Veteran complete and return the new release form. The AOJ did not inform the Veteran that these records were not obtained, nor did it request he complete the authorization form provided by Mayo Clinic. Therefore, a remand is required for further attempts to obtain the records identified from Mayo Clinic. See 38 C.F.R. § 3.159(c)(2) (2012); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the Board instructed that an addendum medical opinion should be obtained to address the merits of the Veteran's claim. Specifically, the examiner was requested to review any additional VA and/or private treatment records, and opine whether the Veteran suffered an additional disability due to VA treatment performed in May and June 2006. While the addendum opinion was obtained in September 2012, it is not adequate as it was obtained prior to receipt of pertinent private treatment records in December 2012. Furthermore, the examiner determined the Veteran did not suffer an additional disability following the May and June 2006 VA treatment, based on "multiple subsequent exams" showing no evidence for sequel of his procedures. However, that Board notes a March 2007 Maryvale Hospital discharge summary (which was not of record at the time of the September 2012 addendum opinion) notes a diagnosis of respiratory failure secondary to severe vocal cord dysfunction. Other records, including a July 2012 VA speech pathology consultation note, indicates a diagnosis of laryngeal dyskinesia. Given this new evidence, which appears to conflict with the September 2012 addendum opinion, on remand, another medical opinion should be obtained. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to identify any private treatment that he may have had for his vocal cord dysfunction/ laryngeal dyskinesia, to include the Mayo Clinic, which are not already of record. After securing the necessary release forms, attempt to obtain and associate those identified treatment records with the claims file. Accomplish any follow-up requests as necessary. If those identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be so notified so that he can make an attempt to obtain those records on his own behalf. 2. Following the completion of the above, furnish the Veteran's claims file to the August 2011/September 2012 VA examiner in order to provide an addendum to the August 2011 VA examination report and September 2012 opinion. The examiner should specifically state in his addendum that he has reviewed the entire claims file, including this REMAND order as well as his previous VA examination report. Following review of the claims file, the examiner should address the following: a. Whether the Veteran has an additional disability the result of any bronchoscopy/laryngoscopy performed by VA, to specifically include in June 2006, as well as before that in May 2006. In rendering this opinion, the examiner is requested to address private and VA treatment records indicating a diagnosis of severe vocal cord dysfunction and laryngeal dyskinesia. If the examiner determines these diagnoses are inappropriate, or that these conditions are not a result of the May and June 2006 VA procedures, a full explanation should be provided. b. If, and only if, the examiner finds that an additional disability resulted from any test performed by VA in May 2006 or June 2006, the examiner should address the Veteran's contentions that such is due to the VA's negligence, carelessness, lack of proper skill, error in judgment or other similar instance of fault in (1) administration of anesthesia; or (2) allowing any interns to perform the test instead of a certified medical professional (if such occurred). All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. If the August 2011 VA examiner is unavailable, an examiner of similar qualifications can render an addendum which addresses the above. If either the August 2011 examiner or any subsequent examiner cannot opine to the above without examination of the Veteran, then one should be scheduled and afforded to him. If such is necessary, then the examiner should specifically address the above in their examination report in addition to any other appropriate findings. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ ROBERT E. O'BRIEN 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).