Citation Nr: 1339067 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 09-24 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial rating in excess of 10 percent for chronic bronchitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to September 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In July 2009, the Veteran requested a hearing before a Veterans Law Judge (VLJ) at the RO. However, in an April 2012 signed statement, the Veteran's representative withdrew the Veteran's request for a hearing. The Veteran has not requested another hearing and therefore, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2013). A review of the Virtual VA paperless claims processing system reveals the Veteran's October 2013 appellate brief and Omaha VA Medical Center (VAMC) records dated February 2010 to February 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 A remand is necessary for further evidentiary development. The Veteran was provided a VA respiratory examination in September 2011. However, the VA examination did not include a pulmonary function test (PFT) and chronic bronchitis is rated by considering, among other things, PFT results. See 38 C.F.R. § 4.97, Diagnostic Code (DC) 6600 (2013). One of the central issues in this case is which of the Veteran's PFT results most accurately reflects his current level of impairment due to chronic bronchitis. See Veteran's Rating Decision, May 2009. The record includes PFTs conducted as part of VA treatment in June and October 2011; however, there are disparities between the results of different PFTs, such that the level of evaluation would differ depending on which test result is used. Additionally, the Veteran submitted a March 2010 statement from Dr. S. M. that "spirometry is an inaccurate assessment of disability in [the Veteran]." See Dr. S. M., Memorandum, March 2010. As the September 2011 VA examiner did not conduct a PFT, and there is a question as to how best to assess the Veteran's condition, another VA examination is necessary, to specifically include PFTs. The Veteran's most recent treatment records from the Omaha VAMC are dated from February 2012. Accordingly, on remand, records of any ongoing VA treatment for the Veteran's chronic bronchitis should be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated pertinent medical treatment records from the Omaha VAMC from February 2012 to the present. 2. Obtain the names and addresses of all medical care providers, not previously identified, who have treated the Veteran for chronic bronchitis issues since November 2004. After securing the necessary release(s), obtain these records. 3. After completion of the foregoing, schedule the Veteran for a VA respiratory examination to determine the current severity of the service-connected bronchitis. The claims folder, and all pertinent records, should be made available to the examiner for review. All indicated testing, including PFTs, should be conducted. The examiner should indicate which PFT result (FEV-1, FEV-1/FVC, DLCO) most accurately reflects the Veteran's level of disability? In doing so, the examiner should comment on Dr. S. M.'s March 2010 opinion that disagreed with the use of FEV-1/FVC as the most useful parameter in assessing the Veteran's current level of disability and the finding that "spirometry is an inaccurate assessment of disability in [the Veteran]." A full rationale must be provided for all stated medical opinions that reflect consideration of both lay and medical evidence. Note: if the examiner concludes that any of the requested opinions cannot be provided without resort to speculation, the examiner should so state and explain why these opinions would be speculative and what, if any, additional evidence would permit such opinions to be made. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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) (2012).