Citation Nr: 1337898 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-08 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a combined rating in excess of 30 percent for residuals of pneumothorax. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1956 to September 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the San Diego, California RO. In April 2010, the Board granted an earlier effective date of February 8, 2006 for the assignment of a 20 percent rating for the intercostal neuralgia component of the Veteran's residuals of pneumothorax (and a 30 percent combined rating for such residuals), and remanded the case for additional development. In December 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). In June 2013, the case was again remanded for additional development. This appeal was processed using the paperless Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of an electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND In its June 2013 remand, the Board instructed the RO to arrange for the Veteran's record to be forwarded to a specialist in pain management (as recommended by the VHA expert in January 2013) to provide opinions regarding the nature and severity of the Veteran's service-connected residuals of pneumothorax. Pursuant to this instruction, the Veteran underwent a VA examination in August 2013; the examining physician reviewed the claims file, interviewed the Veteran, and rendered the requested opinions. However, the examining physician was a staff physician in the field of Primary Care certified in Internal Medicine, not a specialist in pain management as had been requested. Therefore, on remand, the RO must arrange for the Veteran to be examined by a specialist in pain management in accordance with the June 2013 remand instructions. See 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). Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the Veteran's record to be forwarded to a specialist in pain management. The entire record (to include the claims file with this remand and any records in Virtual VA and VBMS) must be reviewed by the specialist. Based on review of the record, the specialist must provide opinions that respond to the following: (a) Based on the factual evidence of record, and beginning from February 2005, is the Veteran shown at any time to have any symptoms of pneumothorax residuals that are not encompassed by the schedular criteria for Diagnostic Codes 5321 (for neuralgia rated by analogy to Muscle Group XXI injury) and 6843 (for pneumothorax rated based on impairment of pulmonary function)? (b) If the response to (a) is yes, please identify any such symptoms. (c) Are there any schedular criteria (Diagnostic Codes) that would more appropriately reflect the nature and severity of the Veteran's pneumothorax residuals? Please identify any such Code(s) and explain why they would be more appropriate. (d) Is the Veteran's intercostal neuralgia is so severe that it causes nocturnal hypoxemia or is there another more likely etiology? The specialist must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. If the specialist determines that further examination of the Veteran is necessary to provide any requested opinion, such examination should be scheduled. 2. The RO should ensure that all development sought is completed (as specifically instructed), arrange for any further development suggested by additional evidence received, and then review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ GEORGE R. SENYK 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).