Citation Nr: 1601027 Decision Date: 01/11/16 Archive Date: 01/21/16 DOCKET NO. 13-11 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a respiratory disease, to include chronic obstructive pulmonary disease (COPD), claimed as residuals of smoke inhalation. 3. Entitlement to a compensable evaluation for burn scars of the left wrist, forearm, upper arm, and leg. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active military service from November 1984 to November 1987, and from November 1987 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) following a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which, in part, denied a compensable evaluation for burn scars of the left wrist, forearm, upper arm, and leg, and declined to reopen previously denied claims of service connection for a psychiatric disorder and a respiratory disorder. In June 2015, the Board reopened the claims for a psychiatric disorder and a respiratory disorder, and remanded the claims for burn scars, psychiatric disorder, and respiratory disorder, for further evidentiary development. In the remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain additional private and VA treatment records, to include records from Doctor Sadik, and to schedule the Veteran for VA examinations. Unfortunately, the appeal must be remanded again, as will be discussed below. See Stegall v. West, 11 Vet. App. 268 (1998) (where remand orders of the Board or the Court are not complied with, the Board itself errs in failing to insure compliance). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the claims. In the June 2015 remand order, to Board, in pertinent part, directed the AOJ to ask the Veteran to complete a VA Form 21-4142 and a VA Form 21-4142a for all non-VA medical care providers who had treated him for the remanded claims, to include his prior doctor, Dr. Sadik. In June 2015, the AOJ sent a letter to the Veteran requesting that he fill out the enclosed Forms. However, the Board notes that the Veteran informed VA of a change of address in July 2015; the VA correspondence was sent to the outdated address. Thus, the Board finds that a remand is necessary so that the AOJ may resend the VA Form 21-4142 and VA Form 21-4142a to the Veteran's new address on file. In addition, the Board instructed the AOJ to schedule the Veteran for a new VA examination for his burn scars, and specifically asked the VA examiner to "identify all medications prescribed to treat the scars" and discuss whether "any medication, if being prescribed for the service-connected scars, represents intermittent systemic therapy." The Veteran underwent a VA examination in July 2015. The examination report indicated use of Amoxicillin and Nystatin, but the examiner did not state whether such medications represented "intermittent systemic therapy." Thus, the Board finds that the July 2015 VA examination for the burn scars was not adequate and that a remand is required to adequately assess the severity of the Veteran's burn scars of his left wrist, forearm, upper arm, and leg. See Barr v. Nicholson, 21 Vet. App. 31 (once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one). Further, the Veteran submitted a statement in October 2015 claiming that he was administered a breathing test by the Navy in August 1987 in Mayport, Florida. After careful review of the claims file, the Board notes that the service treatment records do not contain any medical records from Mayport, Florida from August 1987 pertaining to breathing tests. Therefore, a remand is necessary for VA to fulfill its duty to assist. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Lastly, in a statement in support of the claim on October 19, 2015, the Veteran asked for a live videoconference hearing. In light of this request, the Board will remand the claim on appeal in order to schedule the Veteran for a hearing, as he has requested. On remand, any ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell, 2 Vet. App. at 611. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran at his new address and ask him to complete a VA Form 21-4142 and a VA Form 21-4142a for all non-VA medical care providers who treated him for the remanded claims, to specifically include treatment for his service-connected burn scars of the left wrist, forearm, upper arm, and leg, including those prescribing him a topical steroid. This should include his prior doctor, Dr. Sadik. If the Veteran does not provide the necessary Release Forms, request that he obtain the records and provide them to VA. Associate all pertinent, outstanding private records with the claims folder. All efforts under this paragraph must include an initial request and, if the records are not received, at least one follow-up request (unless a response to the initial request makes clear that the records sought do not exist or that a follow up request for the records would be futile). 2. Contact the appropriate repository and request a copy of any separately stored treatment records and narrative summaries from the Veteran's treatment in Mayport, Florida in August 1987. All such available records must be associated with the claims folder. Efforts to locate these records should end only if the evidence does not exist or further efforts to obtain it would be futile. If the records are deemed to be unavailable, the claims file must be properly documented as to the unavailability of these records. 3. Obtain any relevant VA treatment records from Illiana Health Case System (HCS), or any other VA medical facility that may have treated the Veteran, since September 2015 and associate those documents with the claims file. 4. Schedule the Veteran for a VA examination to obtain a detailed assessment of the current severity of the Veteran's burn scars of his left wrist, forearm, upper arm, and leg. The entire claims file must be made available to and reviewed by the examiner. The examiner is requested to review all pertinent records associated with the claims file. The examiner is specifically requested to identify all medications prescribed to treat the scars. If any, the examiner is asked whether any of those medications is consistent with an intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs, and the total duration of use required during the past 12-month period. The measurements of the scars should be noted, as well as all their characteristics (do they evidence tenderness, adherence, depression, etc). The examiner is also asked to discuss what percentage of the Veteran's entire body, is affected by the scars, as well as the percentage of exposed areas affected. All tests deemed necessary should be conducted and the results reported in detail. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the remaining claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time for response before the claims file is returned to the Board. 6. After completing all actions set forth in paragraphs 1-5, schedule the Veteran for a videoconference hearing before a Veterans Law Judge, and notify him and his representative of the date, time, and location of the hearing. The appellant has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).