Citation Nr: 1315182 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 08-05 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a paralyzed diaphragm. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to August 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In July 2009, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. In November 2009 and April 2011, the Board remanded the claim for additional development and adjudicative action. The case was returned to the Board for further appellate review. The Board has reviewed the contents of the Veteran's Virtual VA and found no medical or other evidence pertinent to this appeal that is not in his claims file. 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 Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that service connection is warranted for his paralyzed diaphragm. Review of the evidentiary record reveals that service treatment records show that the Veteran was diagnosed with costochondritis with left 4th, 5th, and 6th costosternal joints in November 1971. During a hospitalization, he was treated for chest pains using Prednisone. After discharge from service, post service treatment records reflect diagnoses for an elevated left hemidiaphragm and possible diaphragmatic paresis. The Veteran asserts that the in-service treatment he received during his military service caused his current disorder. Specifically, he argues that injections made into his chest, meant to treat pain, caused paralysis of his diaphragm. In November 2009, the Board remanded the claim to provide the Veteran a VA emanation to determine the etiology of the disability. In the November 2009 remand, the Board requested that the VA examiner opine as to "whether it is at least as likely as not that any current disorder is related to service, including whether it is related to in-service treatment the Veteran received for costochondritis." See the November 2009 Board remand. As such, the Veteran was afforded a VA examination in May 2010. After review of the claims file and physical examination testing, the VA examiner diagnosed him with unilateral paralysis of the left hemidiphragm, chronic with unknown time of onset and without identifiable precipitating illness. The VA examiner explained that it is "apparently unreasonable to consider localized injections of the chest wall for treatment of costochondritis as precipitating this unilateral diaphragmatic paralysis." The VA examiner concluded that it is at least as likely as not that the Veteran's pulmonary insufficiency is caused by or a result of unilateral diaphragmatic paralysis. In an April 2011 remand, the Board found the May 2010 VA examiner's opinion to be "ambiguous, lacking in justification, and nonresponsive to the Board's November 2009 remand orders." The Board again remanded the claim and requested that the May 2010 VA examiner review the claims file and render an opinion as to whether it is at least as likely as not that any current disorder is related to service, including whether it is related to the in-service treatment the Veteran received for costochondritis. The May 2010 VA examiner was also requested to specifically comment on the medical articles submitted by the Veteran, and to explain in detail his rationale for the conclusions reached in the May 2010 VA examination report. As reflected in a June 2012 AMC email, the claims file was returned to the VA examiner, but he simply copied and pasted the prior results in a May 2011 VA addendum. A VA opinion request was submitted again in April 2012 but was cancelled as a duplicate examination. After receiving another request from the AMC in May 2012, the VA examiner only removed a few words from the prior opinion and continued to not answer the questions requested in the April 2011 remand. Finally, in June 2012 the VA examiner reviewed the claims file again and specifically considered the articles submitted by the Veteran in connection with his claim. He concluded that the referenced medical literature relating topical injections to subsequent distal neuropathies were not within his area of expertise, but concluded that this could be queried by consultation with thoracic surgery or anesthesiology specialists. As noted by the Veteran's representative in the December 2012 Informal Hearing Presentation, there is no evidence that the AMC contacted thoracic surgery or anesthesiology specialists in determining whether the Veteran's current disability is attributable to his military service. In view of the above, the Board does not have the requisite information to grant or deny service connection for a paralyzed diaphragm. The Veteran should therefore be scheduled for a VA examination by the recommended specialists and a medical opinion that takes into account the records of prior medical treatment so that the evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). It is unfortunate that this case has to be remanded yet again, but the Board would be remiss in its duty to assist the claimant by not obtaining an adequate examination. The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has stated that if the Board proceeds with final disposition of an appeal and the remand orders have not been complied with the Board itself errs in failing to ensure compliance. Id. The Board thus finds that another evaluation of the evidence is warranted for a more definitive assessment of any relationship the Veteran's paralyzed diaphragm and service for a more informed appellate decision. See Hyder v. Derwinski, 1 Vet. App. 221 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a thoracic surgery specialist or anesthesiologist to determine the nature and extent of the Veteran's pulmonary disorder, to include paralyzed diaphragm, and determine whether there is a causal relationship between active military service and the claimed disability. All necessary testing should be conducted and all appropriate diagnoses pertaining to the pulmonary system should be diagnosed. For any disorders found, the examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that such a disorder had its origin in service or is in any way related to service, to include the in-service treatment the Veteran received for costochondritis. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. The examiner must specifically comment on the articles provided by the Veteran and associated with the record in July 2009, which discusses the link between certain kinds of localized injections and the onset of neuropathy. All opinions expressed must be supported by complete rationale. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated and he/she must discuss why an opinion is not possible. 2. Thereafter, after conducting any additional development deemed warranted, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period 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). _________________________________________________ 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).