Citation Nr: 1325651 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 07-09 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a respiratory disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active military service from September 1974 to September 1979 and from December 2003 to March 2005. He served in Iraq from February 2004 to February 2005. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Philadelphia, Pennsylvania. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This issue was remanded for further development in November 2010 and December 2012. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). The Veteran appeals the denial of service connection for a respiratory disability. He contends that he experienced respiratory problems while stationed at Fort McCoy (prior to his deployment to Iraq), that his entire unit was treated in Iraq for mission-related contamination and dust exposure, and that he continued to have difficulty breathing following his deactivation. When this issue was before the Board in December 2012, it was determined that further development was needed to include obtaining a VA examination. The examiner was instructed to render an opinion as to whether the Veteran's complaints constitute a chronic multisymptom respiratory illness, even if the Veteran does not have a currently diagnosed respiratory disability. The Veteran was afforded a VA examination in March 2013. As no diagnosis was evident, the VA examiner stated no medical opinion was therefore indicated. The Board notes, however, that the examiner was asked to provide a medical opinion even if no diagnosis was rendered. As such, the directives of the remand have not been fulfilled. The Court has held that a remand by either the Court or 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). Accordingly, the claim is again remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who conducted the March 2013 VA examination. Since the symptoms could not be attributed to a known clinical diagnosis, the examiner should describe pertinent objective findings related to such symptomatology and explain why it cannot be so attributed. He should then indicate whether it is at least as likely as not (50 percent probability or more) that such symptoms had their onset during the Veteran's active duty service in Iraq (from February 2004 to February 2005) and have remained chronic since that time. In rendering the requested opinion(s), the examiner should specifically discuss the significance of the August 2004 chest X-ray report showing left basilar subsegmental plate-like atelectasis or pleural-parenchymal scarring, the August 2005 PFT report indicating mild airway obstruction with significant bronchodilator response, and the Veteran's lay assertions regarding exposure to dust and other environmental hazards while serving in Iraq. A complete rationale for the conclusions reached should be provided in the report. If the examiner who conducted the March 2013 examination is unavailable, and/or another examination is deemed necessary, schedule the Veteran for VA respiratory examination for the purpose of determining the nature and etiology of any current respiratory symptoms. All necessary tests and studies should be accomplished. The claims file should be reviewed by the examiner, and this should be indicated in the examination report. The examiner is asked to elicit current respiratory symptomatology from the Veteran and identify all appropriate clinical diagnoses. If a known clinical diagnosis is found to be responsible for the Veteran's complaints, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that such diagnosis is medically related to the Veteran's military service. Any new examiner should also respond to the above matters concerning multisymptom respiratory disorders and the objective findings reported above. 2. Then, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity 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). _________________________________________________ MICHAEL D. LYON 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).