Citation Nr: 1638745	
Decision Date: 09/29/16    Archive Date: 10/13/16

DOCKET NO.  13-32 508	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a compensable rating for a wedge resection of the right lung middle lobe, for hamartoma.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Zi-Heng Zhu, Associate Counsel


INTRODUCTION

The Veteran had active duty from October 1954 to August 1975.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

A June 2015 Board decision the claim for an increased rating.  The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims.  In an April 2016 Order, the Court granted a Joint Motion for Remand by the Veteran and VA General Counsel, to vacate the Board's decision and remand the case to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


REMAND

The Board finds that further evidentiary development is necessary before the Board can adjudicate the Veteran's claim of entitlement to a compensable rating.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.

The Veteran was most recently provided a VA examination for the claim for increased rating in October 2012, nearly four years ago.  The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  In this case, however, further allegations of a progressively worsening condition have been set forth by the Veteran since the most recent examination.  

The Court's April 2016 Decision remanded the Veteran's claim for a compensable rating for a wedge resection of the right lung middle lobe, for hamartoma for further consideration and to obtain a current VA examination.

Accordingly, the case is REMANDED for the following action:

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.

1.  Associate any VA or private records not already of record with the claims file.

2.  Then, schedule the Veteran for a VA respiratory examination with a medical doctor.  The examiner must review the claims file and should note that review in the report.  Any necessary testing, to include pulmonary function testing, should be conducted.  The examiner should provide FEV-1 percentage of predicted value, the ration of FEV-1/FVC in percentage, the DLCO (SB) percentage of predicted value.  The examiner should state the maximum exercise capacity in ml/kg/min oxygen consumption.  The examiner should state whether the evidence show cor pulmonale, right ventricular hypertrophy, pulmonary hypertension (on echo or cardiac catheterization), or episodes of acute respiratory failure.  The examiner should state whether or not the Veteran required outpatient oxygen therapy.

3.  Then, readjudicate the claim.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
Harvey P. Roberts
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).