Citation Nr: 1323483 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 08-06 828A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a respiratory disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to May 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2010, the Veteran testified at a Board hearing before the undersigned. A copy of the hearing transcript is associated with the claims folder. In June 2010, the Board remanded this case to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development. In a decision dated June 2011, the Board denied the Veteran's claim. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). By order dated September 7, 2012, the Court remanded the case to the Board pursuant to the terms of a Joint Motion for Remand. The Board again remanded the matter in December 2012 for further development, to include obtaining private treatment records and providing a new examination. Unfortunately, as addressed below, the RO/AMC failed to comply with the remand orders, and further development is still warranted; the Board regrets the additional delay. 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 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 December 2012, the Board remanded the claim for service connection for a respiratory disorder, and instructed the RO/AMC to obtain private treatment records, specifically including hospitalization records from Holy Redeemer Hospital in 1988, and complete records from Drs. N.M.C. and M.B. In January 2013, the Veteran submitted some private records, along with VA Form 21-4142 releases for Holy Redeemer Hospital and Drs. N.M.C. and M.B. It is unclear whether the Veteran signed those releases, as only copies of the front of the forms have been associated with the claims file. Regardless, it is apparent that the RO/AMC simply accepted the records the Veteran submitted as sufficient compliance with the Board's December 2012 remand. The RO/AMC made no efforts to obtain any other outstanding records, or, if necessary, to obtained signed releases from the Veteran. Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. It is evident that the RO/AMC has failed to comply with the Board's remand; the RO/AMC must make further attempts to obtain the relevant records identified by the Veteran. The Board also ordered a new examination to determine the nature and etiology of the Veteran's respiratory disorder. Rather than provide a new examination, however, the RO/AMC returned the claims file to the examiner who conducted the July 2010 respiratory examination and obtained an addendum opinion. Such was not the Board's request. The Board did seek an opinion, but only after a physical examination of the Veteran had been completed. Therefore, after the RO/AMC obtains the relevant private records referenced above, it must then schedule the Veteran for the requested examination. Id. 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. Obtain from the Veteran signed authorization for VA to obtain hospitalization records from Holy Redeemer Hospital in 1988 and complete records from Dr. N.M.C. and Dr. M.B. (rather than a summary of treatment). If any VA attempts to obtain identified but outstanding records are unsuccessful, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2012). 2. After all identified records have been obtained, schedule the Veteran for an additional VA examination. The claims folder contents must be made available to the examiner for review. Thereafter, the examiner should conduct and interview with, and physical examination of, the Veteran. In the July 2010 examination report, it is reported that the Veteran stopped smoking in 1974 and 1987; as part of the interview, the examiner must clarify the date that the Veteran quit smoking. Following interview and examination, as well as review of the claims folder, the examiner is requested to address the following: a) Identify all current respiratory disorders, including an explanation of whether the Veteran manifests asthma (any indicated tests should be conducted); b) For each respiratory disorder identified, provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that such disorder first manifested during active service from June 1954 to May 1956; and c) For each disorder identified for which the examiner does not provide an opinion indicating that the disorder first manifested during service, provide opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that such disorder is caused by an event during active service from June 1954 to May 1956, including his reported exposure to air pollution and diesel exhaust while stationed in Berlin, Germany. In providing these opinions, the examiner must specifically address the following: * the findings to be expected to support a diagnosis of asthma, and the medical reasons why the Veteran's hospitalization for "common cold"/upper respiratory infection in April 1956 support or do not support an asthma diagnosis; and * the medical reasons why the Veteran's exposure to air pollution and diesel exhaust while stationed in Berlin, Germany (accepted as true by the Board) was sufficient or insufficient to cause the currently manifested respiratory disorders, including a discussion of the relative merits of the May 2010 opinion from Dr. N.M.C. (which can be found in the claims file). The examiner must provide a complete rationale for all opinions expressed. If the examiner is unable to provide the requested opinions without resort to speculation, he or she should explain why such a response would be speculative. 3. Thereafter, readjudicate the claim. If the benefit on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and the appropriate period of time to respond. 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 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). _________________________________________________ M. Mac 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).