Citation Nr: 1319956 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 06-33 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for chronic obstructive pulmonary disease (COPD), rated as 10 percent disabling prior to October 9, 2012, and as 60 percent disabling thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from January 1966 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted entitlement to an increased rating of 10 percent for COPD, effective March 11, 2005. In January 2009, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. He was afforded a new opportunity to provide testimony at a hearing before the undersigned at the RO in June 2012. Transcripts of both hearings are of record. The Board remanded the claim in May 2009, March 2012, and September 2012 for additional development. Unfortunately, this development has not yet been completed. In February 2013, the RO granted an increased rating of 60 percent, effective October 9, 2012. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher rating for COPD remains before the Board. Accordingly, 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 In the September 2012 remand, the Board requested that the Veteran be requested to indicate if he has received any VA or non-VA medical treatment for his COPD that is not evidenced by the current record. A letter to this effect was sent to the Veteran in September 2012 and he responded that he has received VA treatment since 1998. In response, records dated from July 2009 to January 2013 were obtained; however, these records appear to be incomplete. The Veteran testified at the June 2012 hearing that he was going to his doctor for a pulmonary function test (PFT) after the hearing. Results from a PFT on that day are not of record. The records do indicate that a PFT was attempted and some of the PFT results were included in an October 2012 VA examination report. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As this evidence is relevant to the Veteran's claim, all relevant records in VA's possession must be obtained. Once the record is obtained, the claim should be readjudicated accordingly. The Board notes that under the regulations, post-bronchodilator results must be obtained in order to properly adjudicate this claim, except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. See 38 C.F.R. § 4.96 (d) (2012). In addition, if the DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) test is not of record, the claim can be evaluated based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records, including the June 2012 PFT report, and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. If a complete PFT is not obtained, schedule the Veteran for a new VA respiratory examination in order to assess the current severity of his COPD. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 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 2002 & Supp. 2012). _________________________________________________ JAMES L. MARCH 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).