Citation Nr: 1343102	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  09-37 305A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an increased rating in excess of 10 percent for left pneumothorax, spontaneous, with operative wedge resection.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 1966 to February 1968.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In April 2011, a travel board hearing was held before the undersigned in Chicago, Illinois.  A transcript of the hearing is associated with the Veteran's claims file.

The case was remanded by the Board in November 2011.  

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

At the time of the November 2011 Board remand, the Board ordered that the Veteran be contacted so that he could provide names, addresses and dates of treatment from medical care providers and be afforded a VA medical examination.  These were accomplished in a November 2011 letter that the Veteran failed to respond to, and a December 2011 VA examination.  In addition, the Board ordered that the RO/AMC should adjudicate the intertwined claim to reopen the claim of service connection for chronic obstructive pulmonary disease (COPD).  This was not done.  As such, the case must be returned for compliance with the November 2011 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders).  

Accordingly, the case is REMANDED for the following action:

The RO/AMC should adjudicate the claim to reopen service connection for COPD on both a direct basis or as secondary (proximately due to or aggravated by) service-connected pneumothorax residuals.  (It is noted that there is an October 2010 opinion by a VA Physician Assistant that the symptoms of COPD were "made worse" by the fact that he underwent a left-sided lobectomy in 1973 for pneumothorax.)  If the issue is denied, it should be certified to the Board if the Veteran perfects an appeal with a timely notice of disagreement and substantive appeal.  If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim.  The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review.

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. 2012).



_________________________________________________
F. JUDGE FLOWERS
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).