Citation Nr: 1336603 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 06-35 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for right lung disability, claimed as granuloma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from April 1982 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Jurisdiction of this appeal was subsequently transferred to the RO in Waco, Texas. In November 2009, August 2011, September 2012 and May 2013, the Board remanded this matter for additional procedural and evidentiary development. 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 A preliminary review of the record indicates that this claim requires additional development. In the September 2012 remand, the Board concluded that the Veteran's granuloma of the right lung was incurred during his active duty service. The Board requested a VA examination, which was conducted in February 2013. The Board's May 2013 remand found that the February 2013 VA examination report was inadequate. The report did not include current pulmonary function test (PFT) results or explain why a current PFT was unnecessary. It also provided that no significant lung/respiratory disability was found; however, this is inconsistent with March 2011 PFT findings of a moderate obstructive ventilatory defect. The report failed to address or answer the question whether it was at least as likely as not that any current respiratory disability found (including abnormal findings of PFTs) was related to the Veteran's military service. The report did not accept as fact that the Veteran developed a granuloma of the lung during active duty, or explain its significance. Rather, the report simply stated that it was unlikely that breathing jet fuels while in the service would cause a granuloma to form. As a result, the Board's May 2013 remand requested that VA conduct another examination of the Veteran to determine whether he had any current right lung disability related to his military service, including his service-incurred granuloma of the right lung. The Board stated that "all indicated tests and studies should be performed, including a current PFT (emphasis in original)." The examiner was to provide an opinion as to whether it is at least as likely as not that any current respiratory disability found (including abnormal PFT findings) was related to the Veteran's military service. The Board stated that "[i]n rendering this opinion, the VA examiner should accept as fact that the Veteran developed a granuloma of the right lung during his military service and explain the significance of the presence of a granuloma (emphasis in original)." However, the report of the corresponding VA examination, conducted in August 2013, does not address whether any abnormal PFT results were related to the Veteran's military service. In fact, the report does not address whether the Veteran has any current right lung disability related to his military service, including his service-incurred granuloma of the right lung. Rather, like the February 2013 report, it merely addresses the etiology of the granuloma itself. The VA examination report provides that a PFT was to take place several days later, and would be addressed in an addendum. The record includes the results of a PFT conducted several days after the VA examination. However, the record (including the Veteran's Virtual VA and VBMS eFolders) does not include any VA addendum addressing the PFT results. As VA did not conduct all necessary development, the development requested by the Board's May 2013 remand was not fully completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Thus, in the present case additional development must be conducted. Once the Secretary of VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"); see also 38 C.F.R. § 4.2 (2013) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). The Board apologizes to the Veteran for the additional delay, but finds that the requested additional development is necessary for a full and fair adjudication of the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the examiner who conducted the August 2013 VA examination (or a suitable substitute if this individual is unavailable) for an addendum. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current respiratory disability found (including abnormal findings of pulmonary function tests) is related to the Veteran's military service. In rendering this opinion, the VA examiner should: (a) accept as fact that the Veteran developed a granuloma of the right lung during his military service and explain the significance of the presence of a granuloma; and (b) address the results of the August 2013 VA PFT results. A complete rationale must be provided for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC and afforded an opportunity to respond. The case 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 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. E. LARKIN 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) (2013).