Citation Nr: 1338272 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 12-28 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased disability rating for pulmonary tuberculosis with chronic obstructive pulmonary disease, currently evaluated at 60 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to December 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee. A review of the Virtual VA paperless claims processing system includes an October 2013 Informal Hearing Presentation and VA treatment records from 2011 to 2012. Other documents on Virtual VA are either duplicative of the evidence of record or not pertinent to the present appeal. The Veterans Benefits Management System (VBMS) does not include any documents. In the October 2013 Informal Hearing Presentation, documented on Virtual VA, the Veteran asserted that the September 1972 rating decision, in which the RO granted service connection and a noncompensable rating for the Veteran's respiratory disability, involved clear and unmistakable error (CUE). The Board refers this matter to the agency of original jurisdiction for appropriate action. 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 the October 2013 Informal Hearing Presentation, documented on Virtual VA, the Veteran through his representative requested a new VA examination as his disability has increased in severity. Thus, the Veteran should be afforded a new VA examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding 23-month-old examination too remote to be contemporaneous where appellant submitted evidence indicating disability had since worsened). Accordingly, the case is REMANDED for the following action: 1. Obtain any additional VA medical records pertaining to the Veteran that date from August 2012. 2. Afterwards, schedule the Veteran for a VA medical examination to determine the current nature and severity of his service-connected respiratory disability. Make the claims file available to the examiner for review of the case. The examiner should note that this case review took place. All necessary tests should be performed, and all findings should be reported in detail. The examination report must specifically include a pulmonary function test (PFT), including post-bronchodilator Forced Vital Capacity (FVC), Forced Expiratory Volume in one second (FEV-1), FEV-1/FVC, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)), and maximum exercise capacity. If the DLCO (SB) or maximum exercise capacity test is not performed, the examiner should provide reasons stating why the test would not be useful or valid in evaluating the nature and extent of the Veteran's disability. Similar reasons should be provided if post-bronchodilator values are not provided. The examiner should also indicate whether the Veteran has cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or whether he requires outpatient oxygen therapy, as a result of chronic bronchitis. The examiner should state which of the different PFTs (FEV-1, FVC, etc.), most accurately reflects the Veteran's level of disability. The examiner should provide complete rationale for all opinions expressed. 3. After completing all necessary development, readjudicate the claim on appeal. [PLEASE NOTE THAT THE CLAIM ON APPEAL IS INTERTWINED WITH THE CUE MATTER THAT THE BOARD HAS REFERRED TO THE AGENCY OF ORIGINAL JURISDICTION FOR ADJUDICATION.] If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. 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. 2013). _________________________________________________ S. S. TOTH 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).