Citation Nr: 1414649 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 08-05 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a paralyzed diaphragm. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Syverson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to August 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board recognizes that the Veteran has on several occasions requested copies of chest x-rays taken while in service. However, these x-rays are not located in the service treatment records (STRs), which were sent to the Veteran in June 2008 in response to his request for a copy of his claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Veteran claims entitlement to service connection for his paralyzed diaphragm and contends that his condition is the result of treatment received for costochondritis during service. Remand is required to obtain compliance with a prior Board remand and to provide the Veteran with a videoconference hearing. In November 2009, the Board remanded this appeal to provide the Veteran a VA examination to address the etiology of his condition. The resulting examination report was found to be "ambiguous, lacking in justification, and nonresponsive" to the Board's November 2009 remand orders. Accordingly, the claim was remanded in April 2011 for clarification, and the VA examiner was asked to comment on medical articles submitted by the Veteran. After multiple requests and non-compliant responses, the VA examiner concluded that the referenced medical literature relating topical injections to subsequent distal neuropathies was not within his area of expertise and noted that these materials could be addressed by thoracic surgery or anesthesiology specialists. As a result, in its May 2013 remand, the Board directed the Appeals Management Center (AMC) to schedule the Veteran for a VA examination with a thoracic surgery specialist or anesthesiologist to determine the nature and extent of the Veteran's pulmonary disorder and any relationship between the claimed disability and the Veteran's service. Unfortunately, as noted by the Veteran and his representative, the AMC failed to comply with the May 2013 remand. Rather than obtain a new examination with, or opinion from, one of the identified specialists, the claim was returned to the same VA examiner who acknowledged that he lacked the expertise to provide the requested opinion. A note from a thoracic surgeon is also of record, but the surgeon indicates that he has only begun his review of the Veteran's history and does not offer any of the requested opinions. Because the May 2013 remand orders have not been complied with, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Remand is also necessary to provide the Veteran with a hearing. The Veteran appeared before a Veteran's Law Judge in a July 2009 hearing. Because that Veteran's Law Judge is no longer employed by the Board, the Veteran was offered the opportunity to testify at another hearing. See 38 C.F.R. § 20.717 (2013). In an October 2013 submission, the Veteran elected to appear at a hearing before a Veteran's Law Judge of the Board at his local regional office. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a thoracic surgery specialist or anesthesiologist to determine the nature and extent of the Veteran's pulmonary disorder, to include paralyzed diaphragm, and determine whether there is a causal relationship between active military service and the claimed disability. All necessary testing should be conducted and all appropriate diagnoses pertaining to the pulmonary system should be diagnosed. For any disorders found, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more), that such a disorder had its origin in service or is in any way related to service, to include the in-service treatment the Veteran received for costochondritis. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. The examiner must specifically comment on the articles provided by the Veteran and associated with the record in July 2009, which discuss the link between certain kinds of localized injections and the onset of neuropathy. All opinions expressed must be supported by an explanation. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated and he/she must discuss why an opinion is not possible. 2. Thereafter, schedule the Veteran for a Travel Board hearing at his local RO at the earliest opportunity. Notify the Veteran of the date, time, and location of the hearing and associate a copy of this notification letter with the Veteran's claims file. Once the Veteran has been afforded the requested hearing, or in the event that he withdraws his hearing request or fails to appear, the case should be returned to the Board for further appellate consideration. 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 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). _________________________________________________ K. MILLIKAN Acting 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).