Citation Nr: 1323468 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 07-26 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased evaluation for bronchiectasis of the left lower lobe, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Paul Bradley, Agent ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to August 1970. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Louisville, Kentucky. In January 2011, the Board remanded the matter for additional development. In October 2011, the Veteran raised a claim for entitlement to service connection for a heart disorder, to include as secondary to his service-connected bronchiectasis. In February 2012 correspondence, the Veteran raised the issues of entitlement to service connection for a psychiatric disorder, entitlement to a total rating based on individual unemployability (TDIU), and entitlement to non-service connection pension. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board has considered documentation included in the Virtual VA system in reaching the determination below. 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 The Board finds that further development is necessary before the appeal can be properly adjudicated. Initially, the Board finds there appear to be outstanding pertinent private medical records relevant to the appeal. Specifically, in a February 2012 VA Form 21-4142, the Veteran requested VA to obtain his treatment records from Dr. Rehman in Evansville, Indiana, and Dr. DeFries, also in Evansville, Indiana. In an application for TDIU, the Veteran further indicated that Dr. Rehman is associated with Ohio Valley Heart Care, and stated that treatment is ongoing from these providers. The Veteran's Form 21-4142 also references a St. Mary's, but an internet search reveals that St. Mary's appears to be part of the address of one of the providers, and not an independent source of treatment. No request for the records of Dr. Rehman was made. While the file contains limited record from the 1990s from Dr. DeFries, a request for current records must be made. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." Also, while medical records underlying the Veteran's Social Security Administration (SSA) determination have been obtained, the Board cannot point to the SSA decision itself. See Martin v. Brown, 4 Vet. App. 136 (1993) (holding that both the final Social Security Administration, as well as records upon which that decision was based, should be obtained); 38 C.F.R. § 3.159(c)(2) (2012). On remand, the RO should obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. In addition, the Board finds that the RO must obtain a supplemental medical opinion from the February 2011 and September 2011 VA examiners, if available. Initially, as noted by the Board in January 2011, the Veteran's disability may be rated according to pulmonary impairment for chronic bronchitis under Diagnostic Code 6600 or for bronchiectasis under Diagnostic Code 6601. See 38 C.F.R. § 4.97 (2012). The next higher rating of 30 percent under Diagnostic Code 6601 is available with evidence of daily productive cough with sputum that is at times purulent or blood-tinged and that requires prolonged (lasting 4-6 weeks) antibiotic usage more than twice a year. The examiner offered findings that the Veteran has a daily productive cough with sputum that is of a sticky consistency and brownish in color. A review of treatment records reveals the prescription of antibiotics for his respiratory problems on various occasions, including in November 2011, for example, at which time the use of antibiotics on a regular basis was discussed. The examiner did not offer a finding regarding the frequency of antibiotic usage. This should be obtained prior to appellate adjudication. Additionally, in January 2011, the Board remanded the matter in order to distinguish which respiratory symptoms are attributable to the Veteran's service-connected bronchiectasis, and which are due to his non-service connected COPD. A VA examination was conducted in February 2011. Diagnostic testing was conducted, and the results appear to support a higher rating under Diagnostic Code 6600. The examiner offered a detailed medical explanation of the differences between various respiratory issues, which the Board finds would require some amount of independent medical knowledge to interpret and apply to the facts of this case. The examiner did, however, state, "in this case the bronchiectasis is quite limited and quiescent and clinically not progressive and therefore the SOB [shortness of breath] and DOE [dyspnea on exertion] are not attributable to bronchiectasis." An addendum opinion was obtained to clarify certain points, and another VA examiner offered the following interpretation, "the opinion rendered by the previous examiner is reviewed whish states that the Veteran's symptoms are attributable to his COPD. His respiratory symptomatology is not due to bronchiectasis, which is defined in that report as 'quite limited, quiescent and clinically not progressive.'" The Board finds that it should be definitively stated whether the pulmonary measurements obtained by the February 2011 examiner, which support the assignment of a higher rating, are attributable to the Veteran's service-connected disability or not. The February 2011 examiner stated that shortness of breath and dyspnea were not attributable to his bronchiectasis, but the Board is unable to determine whether this means the diagnostic testing results are also entirely attributable to his non-service connected COPD. The September 2011 examiner essentially found that none of the respiratory symptomatology is attributable to his service-connected disability, but as this is not exactly what the February 2011 examiner stated, the Board finds the matter should be clarified. On remand, the examiner should also be advised that post-bronchodilator studies are required, except when the results of pre-bronchodilator pulmonary function tests are normal or the examiner determines that post-bronchodilator studies should not be conducted and states why. 38 C.F.R. § 4.96(d)((4). The February 2011 VA examiner did not indicate whether pre or post bronchodilator studies were conducted, and also did not indicate the "percent predicted" for several of the measurements obtained, including FEV-1 and DLCO (SB), as is required in applying Diagnostic Code 6600. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he provide any authorization forms necessary to allow the RO to obtain treatment Dr. Rehman of Ohio Valley Heart Care, and Dr. DeFries. Thereafter, the RO should attempt to obtain those records. If no records can be obtained, VA's efforts must be documented for the record, and compliance with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012) must be achieved. 2. The RO should take all indicated action to obtain the Social Security Administration (SSA) decision pertinent to the Veteran's claim for Social Security disability benefits. 3. The RO should take all indicated action to forward the claims file, to include a copy of this REMAND, to the VA examiner who prepared the February 2011 VA examination, or the VA examiner who prepared the September 2011 addendum, for a supplemental opinion. The examiner should offer findings as to whether the Veteran's bronchiectasis is manifested by daily productive cough with sputum that is at times purulent or blood-tinged and that requires prolonged (lasting 4-6 weeks) antibiotic usage more than twice a year. The examiner should clearly state whether the impairment reflected in the diagnostic testing conducted is attributable to the Veteran's service-connected bronchiectasis, or non-service connected respiratory disabilities. If the examiner cannot resolve the issue without resort to speculation, that should be stated. The examiner should indicate whether pre or post-bronchodilation studies were conducted, and should offer the FEV-1 and DLCO (SB) results in terms of percent predicted. If either prior examiner is not available, or is unable to provide the requested opinion without examining the Veteran, the RO must arrange for the Veteran to undergo a VA respiratory examination to address the current severity of his bronchiectasis in accordance with the latest worksheets for rating respiratory disorders, and to obtain an opinion responsive to the questions posed hereinabove. A complete rationale for any opinions expressed must be provided. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. 4. The Veteran should be notified that it is his responsibility to report for any 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). 5. After the development requested has been completed, the RO should 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. 6. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim should be readjudicated. All applicable laws and regulations should be considered. If the benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. 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). _________________________________________________ H. N. SCHWARTZ 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).