Citation Nr: 1331301 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 04-24 698A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include asthmatic bronchitis. 2. Entitlement to a disability evaluation greater than 20 percent for a left knee disability. 3. Entitlement to a compensable disability evaluation for chronic sinusitis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to March 1979. This matter comes before the Board of Veterans, Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs Regional Office in Waco, Texas. In October 2009, May 2011 and October 2011, the Board remanded this matter for additional development. The Board has reviewed the Veteran's Virtual VA file and has considered all of the relevant records contained therein in the decision below. The issue of entitlement to service connection for a respiratory disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. Residuals of a left knee injury with patella dislocation has been manifested by flexion limited to, at worst, 30 degrees, but without limitation of extension and no instability. 2. Resolving all doubt in the Veteran's favor, chronic sinusitis is manifested by 3 to 6 non-incapacitating episodes of sinusitis in a 12-month period; incapacitating episodes of sinusitis requiring prolonged antibiotic treatment, and nasal polyps are not shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of a left knee injury with patella dislocation, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260 (2012). 2. The criteria for an evaluation of 10 percent for chronic sinusitis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6513 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A May 2003 VCAA letter informed the Veteran that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. The notice predated the rating decision. Notice as to how appropriate disability ratings and effective dates were assigned was not provided until a letter of June 2008, after the initial rating decision. However, the timing error is harmless as the claim was readjudicated in Supplemental Statements of the case of July 2008May 2010, June 2012 and February 2013. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service VA and private treatment records. The Veteran was afforded VA examinations in May 2003 and September 2009. The VA examinations, along with the outpatient treatment records, are adequate to make a determination on the claim. The Board has remanded this case for the scheduling of VA examinations in conjunction with the Veteran's claim several times. The Veteran had been scheduled for examinations in April 2010. The Veteran failed to report for these examinations. He contacted the Appeals Management Center (AMC) in June 2010 reporting that he was not timely notified of his pending examinations and that he did not show up on time because he was in an accident on VA grounds. The Board determined in May 2011 that the Veteran had provided good cause for his failure to report and remanded again to provide the Veteran with VA examinations. While this case was on remand, the Veteran did not report for VA examinations in July and August 2011. The Veteran was notified of his impending July 2011 VA examinations by a May 2011 letter. The Veteran was contacted by telephone by the AMC in July 2011. A report of contact reveals that the Veteran was informed that he would be afforded another opportunity to report for exams but was also informed that this would be the last time. The Veteran was rescheduled for examinations on August 16, 2011. The Veteran's VA treatment records show that the Veteran called to reschedule those examinations for August 18. He then failed to report. His VA treatment records show that he called and claimed to have a fever as his reason for failing to report. Most recently, the Veteran was scheduled for VA examinations in February 2013. He again failed to report and this time, neither he nor his representative have provided a reason for his failure to report. The examinations had been requested as the Veteran had reported a worsening of symptoms and the examinations of record were too remote. Here, the Board acknowledges the remoteness of the VA examinations; however, the Veteran failed to report to multiple subsequent examinations that may have cured this deficiency despite the Board's grant of repeated additional opportunities to report to VA examinations. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. Accordingly, the Board will make its decision based upon the evidence of record. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The issues are thus ready to be considered on the merits. Legal Criteria and Analysis Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). There are separate rating codes which identify the various disabilities. 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). In considering the severity of a disability, it is essential to trace the medical history of the claimant. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of a claimant's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2012). The Court has emphasized that a claimant may not be compensated twice for the same symptomatology as such a result would overcompensate the claimant for the actual impairment of his earning capacity. Brady v. Brown, 4 Vet. App. 203 (1993). Notwithstanding the provisions of 38 C.F.R. § 4.14, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); 38 C.F.R. § 4.25 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2012). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Additionally, the Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Left Knee The Veteran's left knee disability has been evaluated under Diagnostic Code 5260, for limitation of flexion of the leg. See 38 C.F.R. § 4.71a. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is zero percent, flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Evaluations for limitation of knee extension are assigned as follows: extension limited to 5 degrees is zero percent, extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). As noted, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. 38 C.F.R. § 4.14 (2011); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In that regard, separate evaluations may be assigned for non-overlapping manifestations of knee disability. See VAOPGCPREC 9-2004, published at 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, published at 63 Fed. Reg. 56,703 -04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, published at 62 Fed. Reg. 63,604 (Dec. 1, 1997) (to the same effect). The combined evaluation for the affected leg, however, cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2012). In this case, the Board finds that a rating in excess of 20 percent for the Veteran's left knee disability is not warranted. To warrant a higher 30 percent rating under Diagnostic Code 5260, the evidence must show limitation of flexion to 15 degrees or less. During the May 2003 VA examination, flexion of the left knee was to 30. There was slight effusion, but no crepitus, Lachman's test was slightly positive. The examiner did not provide an estimate of additional loss of motion after repetitive use. The examiner noted the Veteran suffered from recurrent dislocations of the patella. At the September 2009 VA examination, flexion of the left knee was to 120 with pain medially and laterally at 120 degrees and a loss of 20 degrees of motion due to pain; extension was to 0 with mild pain medially. Medial, lateral collateral, anterior and posterior cruciate ligaments were all stable. Medial and lateral meniscus were also stable. McMurray's and Lachman's were negative. There was no instability present and no laxity. Gait was normal, although he walked with a cane to favor his back. Active range of motion of the knee did not produce any weakness, fatigue or instability. Additional VA outpatient treatment records show the Veteran was seen for complaints of left knee pain. Here, at worst, the Veteran's right knee flexion was limited to 30 degrees in May 2003. This measurement falls below the threshold required for a 30 percent evaluation under Diagnostic Code 5260. The Veteran has described symptoms of pain; however, at the most recent VA examination of September 2009, flexion was limited to 100 degrees when considering the reported pain. This range of motion does not meet the requirements for a compensable evaluation, even less a 30 percent disability rating. In addition, the September 2009 examiner stated there was no weakness, fatigue or instability on repetitive use. At no point has there been credible evidence that there has been the functional equivalent of limitation of flexion to 15 degrees or less due to any factor. As such, rating higher than 20 percent for a left knee disability is not warranted. The record reflects that the Veteran has reported increased pain and flare-ups among the difficulties with his left knee. The Board observes that, given the Veteran's painful right knee motion, and other symptoms, the 20 percent rating assigned appears to be consistent with DeLuca, 38 C.F.R. § 4.40, 4.45, and 4.59 (recognizing the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). However, the competent evidence reflects that no higher rating is assignable, even when functional loss due to pain, weakness and other factors is considered. Moreover, the Board also finds that a separate rating for limitation of extension is not warranted. At the September 2009 examination, extension was normal. There is no competent evidence of limitation of extension. The Board has also considered whether a separate rating for instability is warranted. However, although the Lachman's test was slightly positive in May 2003, no actual instability was noted. Moreover, in September 2009, Lachman's was negative, all ligaments were stable and no instability was noted. Accordingly, the Board finds that there is no competent evidence of instability of the left knee. As noted above, the Board's determination of whether the Veteran meets the criteria for a higher rating has been frustrated by his continued failure to report for scheduled VA examinations addressing the service-connected disability in question. The Board has also considered other potentially applicable diagnostic codes. As regards the left knee, the Veteran does not have ankylosis, impairment of the tibia or fibula, or genu recurvatum. Accordingly, a higher rating or separate compensable rating under Diagnostic Code 5256, 5259, 5262, or 5263 is not warranted for the left knee. The Board acknowledges that the Veteran has reported recurrent patella dislocations of the left knee. Even if the Board were to consider these symptoms under Diagnostic Code 5258 for dislocated cartilage, the maximum disability rating allowed under that diagnostic code is 20 percent. As the Veteran is already in receipt of a 20 percent disability rating, Diagnostic Code 5258 does not provide the basis for an increased disability rating. In addition to the medical evidence, the Board has considered the Veteran's lay statements. He has reported left knee pain. The Veteran is certainly competent to describe the symptoms that he observes pertaining to his right knee. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board also finds these statements credible, but that the medical findings elicited by skilled professionals are more probative and, for the reasons stated above, do not provide for higher ratings. B. Sinusitis The Veteran seeks a compensable disability rating for his service connected chronic sinusitis. The Veteran's disability is currently rated unde Diagnostic Code 5613. Under Diagnostic Code 6513, a zero percent rating is assigned when detected by x-ray only. A 10 percent rating is assigned when a Veteran has either one or two incapacitating episodes per year of sinusitis (an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician) requiring prolonged (lasting four to six weeks) antibiotic treatment, or has three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned when a Veteran has either three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or has more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. At a May 2003 VA examination, the Veteran reported a sustained sinus infection dating for some three to four months going back to November 2002. After a physical examination, it was noted there was no current evidence of an active sinus infection. At a September 2005 VA examination, the Veteran reported he had a severe sinus infection about three years before. The examiner noted that the Veteran did not report a history which would be compatible with acute or chronic sinusitis. He indicated that his symptoms of nasal congestion and drainage occur year round rather than seasonal. The examiner noted that a CT scan of the sinuses showed no significant paranasal sinus pathology and was primarily negative. After a physical examination, he was diagnosed with allergic rhinitis. The examiner noted that the CT scan had no indication of a chronic or acute sinusitis and that the current symptoms of nasal drainage and congestion were more compatible with allergic rhinitis for which he is being treated with medication. VA treatment records show that the Veteran sought treatment for sinusitis on a regular basis. In July 2008, he reported his symptoms of sinusitis were worse. In December 2008, he reported he had sinus infections all the time. A May 2009 CT scan of the sinuses was unremarkable. In June 2010, he was seen for a sinus infection. A December 2010 CT scan of the sinuses showed no abnormalities. In January 2011, he reported an increase in sinus congestion and drainage. In August 2011 it was noted he had recurrent episodes of sinusitis with increased pain and drainage. He was treated at the time with antibiotics. In November 2011, it was noted he had an exacerbation of chronic sinusitis with sinus pain and drainage. After a review of the evidence of record, the Board finds that, resolving all doubt in the Veteran's favor, a 10 percent disability rating, but no higher, is warranted. Indeed, the record reflects that the Veteran has sought treatment on a consistent basis for exacerbation of chronic sinusitis. The most recent VA outpatient treatment records show an increase in symptoms and recurrence. Treatment with antibiotics was also noted. Moreover, the medication lists of records show the Veteran has been consistently prescribed medication for his sinuses. Considering the Veteran's reports of recurrent sinus infections and the consistent seeking of treatment, at least through a portion of the appeal period, the Board will resolve all reasonable doubt in favor of the Veteran and assign a 10 percent evaluation under Diagnostic Code 6513. The Board notes that there is no evidence of incapacitating episodes. Furthermore, there is no medical evidence of record reflecting that the Veteran's sinusitis has met the criteria for an evaluation in excess of 10 percent under this diagnostic code for any period of time on appeal. In this regard, the record does not reflect 3 or more incapacitating episodes or more than 6 non-incapacitating episodes a year. Again, the Board's determination of whether the Veteran meets the criteria for a higher rating has been frustrated by his continued failure to report for scheduled VA examinations addressing the service-connected disability in question. The Board has reviewed the remaining diagnostic codes relating to diseases of the nose and throat but finds Diagnostic Code 6513 is the most appropriate diagnostic code to apply in this case. See 38 C.F.R. § 4.97, Diagnostic Codes 6502-6524 (2012). C. Both Increased Rating Claims In reaching this decision, the Board has also considered whether the Veteran may be entitled to an extraschedular ratings pursuant to 38 C.F.R. § 3.321 (2012). In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. Step one, is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, then no referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating is required. If the schedular criteria do not contemplate the claimant's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the claimant's disability picture is exceptional with such related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. If the disability picture meets the second step, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected sinusitis is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. The Board has also considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, however, entitlement to a total disability rating based on individual unemployability has already been granted. In this case, the Board concludes that there is no basis for staged ratings of the Veteran's left knee disability and chronic sinusitis. A rating higher than 20 percent is not warranted for the left knee disability based on limitation of motion. The Board has granted a 10 percent disability rating for chronic sinusitis for the entire appellate period, reflecting consistency of symptomatology during the pendency of the appeal. ORDER Entitlement to a disability rating in excess of 20 percent for residuals of a left knee injury with patella dislocation is denied. A disability rating of 10 percent for chronic sinusitis is granted, subject to the regulations applicable to the payment of monetary benefits. REMAND The Veteran seeks service connection for bronchitis, claimed as a respiratory disorder. As noted above, in November 2009, the Board remanded the claim for the scheduling of a VA examination. It was noted that at the May 2003 VA examination, the Veteran was diagnosed with chronic sinusitis, chronic allergic rhinitis, and asthmatic bronchitis secondary to cigarette excess. The examiner noted that the Veteran had been diagnosed as having chronic bronchitis since 1976, during service. However, the examiner's opinion did not account for the Veteran's recurring upper respiratory infections throughout his time in service, nor was an explanation offered for the opinion that the Veteran had bronchitis "secondary to cigarette excess". The Veteran was afforded another VA examination in September 2005, in order to assess the severity of his chronic sinusitis. At that time, he was diagnosed only with allergic rhinitis. The examiner did not address any additional respiratory claims, including asthmatic bronchitis. The Veteran was scheduled for an examination in April 2010 but he failed to report. He contacted the Appeals Management Center (AMC) in June 2010 reporting that he was not timely notified of his pending examinations and that he did not show up on time because he was in an accident on VA grounds. The Board determined in May 2011 that the Veteran had provided good cause for his failure to report and remanded again to provide the Veteran with a VA examination. While this case was on remand, the Veteran did not report for VA examinations in July and August 2011. The Veteran was notified of his impending July 2011 VA examinations by a May 2011 letter. The Veteran was contacted by telephone by the AMC in July 2011. A report of contact reveals that the Veteran was informed that he would be afforded another opportunity to report for exams but was also informed that this would be the last time. The Veteran was rescheduled for an examination on August 16, 2011. The Veteran's VA treatment records show that the Veteran called to reschedule those examinations for August 18. He then failed to report. His VA treatment records show that he called and claimed to have a fever as his reason for failing to report. Most recently, the Veteran was scheduled for a VA examination in February 2013. He again failed to report and this time, neither he nor his representative have provided a reason for his failure to report. Notwithstanding the Veteran's repeated failure to report for an examination, the only medical opinion of record has been deemed inadequate. Therefore, to ensure due process, the Board will remand the claim for a medical opinion without an examination of the Veteran. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a VA medical opinion, no examination of the Veteran is needed nor should be scheduled, to determine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a respiratory disorder, other than sinusitis, that is etiologically related to service. If so, the respiratory disorder should be identified. For any respiratory disorder, other than sinusitis, identified, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified chronic respiratory diseases had onset during the Veteran's active service or was caused by his active service. The examiner must provide a complete rationale for any and all opinions rendered. In addition, the Veteran's claims file must be made available to the examiner, and access to the Veteran's Virtual VA file must be provided. The examiner must review the claims file and virtual file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. 2. After completing the above development, readjudicate the claim on appeal, considering any new evidence secured. If the disposition remains unfavorable, furnish the Veteran and his representative with a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs