Citation Nr: 1319016 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 05-02 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for sarcoidosis. REPRESENTATION Appellant represented by: Barbara J. Cook, Attorney at Law ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to May 1989. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). In a May 2007 decision, the Board denied the claim on appeal. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Based on a June 2009 Joint Motion for Remand (Joint Motion), the Court remanded this appeal in June 2009 for development in compliance with the Joint Motion. In November 2009, the Board vacated the prior Board decision and remanded the matter for additional development in accordance with the Joint Motion. Because the required development is not yet substantially complete, the appeal is again remanded to the RO. VA will notify the Veteran if further action is required. REMAND The July 2009 Joint Motion noted that the Board's May 2007 decision was deficient in its analysis of the lay statements made by the Veteran as to the onset of her symptoms, and that the November 2004 VA examination was also inadequate. The examination report failed to note the in-service treatment with prednisone, which is the same medication the Veteran takes for her sarcoidosis. Moreover, the examiner failed to note the November 1987 and August 1988 treatment, as well as the report of symptoms noted on the May 1989 separation examination report of medical history completed by the Veteran. The Board, in November 2009, remanded this matter for a new VA examination to ascertain the etiology of the Veteran's currently diagnosed sarcoidosis with consideration of the factors pointed out in the Joint Motion. The Veteran was afforded VA respiratory examination in January 2010. At the outset the Board notes that the VA respiratory examiner was characterized as "Board Certified, American College of Obstetrics and Gynecology." It is unclear why such an examiner was utilized, rather than a pulmonary examiner. Moreover, there is an indication of carelessness in the examiner's report of the Veteran's present medical history. In particular, the examiner stated that the Veteran "is current treat erectile dysfunction with prednisone, Atrovent metered dose inhaler, Advair, Singulair, and Placquinel..." The Board is at a loss as to how to interpret this statement in relation to this female Veteran. More importantly, the VA examiner's opinion as to causation is indeed flawed. First, the examiner stated that because the Veteran reported at the time of examination that she experienced symptoms in 1986, prior to service, "the entire discussion of whether or not [her] sinusitis and chronic cough that existed during military service were part of her current condition of sarcoidosis become moot." This is indeed not the case. The Veteran was noted to be free from disability upon entry into service. Moreover, the Board recognizes that she reported in March 1987 that she had sinus problems for the previous year. However, there is no indication of the existence of disability upon entry into service. Moreover, even if the Board were to deem the Veteran as having a preexisting disability, the question as to the impact of her in-service reports of symptoms on that disability would not become "moot." The examiner was incorrect in the analysis of the claim in this regard. Further, the examiner reported that symptoms of sarcoidosis "can smolder for years with low-level symptoms before a proper diagnosis can be made, and this may very well have been the case with the [V]eteran," but later concluded that it is less likely than not that her condition was related to the in-service notations of sinusitis, chronic cough or treatment with prednisone. The examiner did not explain why, considering the potential for symptoms to "smolder" prior to diagnosis, the Veteran's condition was less likely than not to have been initially manifested by such smoldering symptoms in service. Finally, the VA examiner based the opinion on an incorrect fact. The examiner reported that it is less likely than not that the in-service symptoms are etiologically related to the post-service sarcoidosis "since there is nothing in the evidence of record to link those symptoms or that treatment with her later development of this condition..." This statement suggests that the examiner failed to review the claims folders. In particular, the examiner ignored the Veteran's report as to the history of her symptoms by stating that "there is nothing in the evidence" to suggest a causal connection. The examiner is not free to simply ignore a Veteran's report of symptoms, without a showing that the Veteran lacked credibility. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). The examiner also made no mention of various statements by the Veteran's private physician related to the likelihood of a causal connection between the Veteran's sarcoidosis and the in-service symptoms. The Board specifically required comment on the private physician's statements in its November 2009 remand. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For these reasons, the claim must be remanded for a new medical examination as both the November 2004 and January 2010 VA respiratory examinations were inadequate. 38 C.F.R. § 3.159(c)(4) (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). Accordingly, the case is remanded for the following action: 1. The Veteran must be afforded a new VA respiratory examination by a VA examiner qualified to assess the nature and etiology of her currently diagnosed sarcoidosis. All tests or studies necessary to make this determination must be ordered. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Thereafter, based upon review of the service and post-service medical records, the examiner must provide an opinion as to whether any sarcoidosis found is related to the Veteran's period of military service. In providing this opinion, the examiner must specifically discuss the Veteran's in-service medication, the service treatment reports dated in November 1987 and August 1988, and the Veteran's statements that she experienced sinusitis and chronic cough on a May 1989 separation report of medical history. The examiner must take into account all statements by the Veteran during service, since service and at the time of VA examination related to her report of symptoms. The examiner must also comment on the various statements from the Veteran's private physician related to the etiology of her sarcoidosis. In particular, the examiner must comment on Dr. R.S.'s September 1997 statement, and Dr. C.E.H.'s April 2004, September 2009 and December 2011 statements. Any opinion provided must include an explanation of the basis for the opinion. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. A complete rationale for all opinions must be provided. The report must be typed. 2. The RO must notify the Veteran that it is her responsibility to report for any scheduled VA examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 3. The RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. The RO must then readjudicate the claim and, thereafter, if the claim on appeal remains denied, the Veteran and her representative must be provided a supplemental statement of the case. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).