Citation Nr: 1639406	
Decision Date: 09/30/16    Archive Date: 10/13/16

DOCKET NO.  10-34 896	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection a lung disorder, to include as due to exposure to asbestos.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans








ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran served on active duty from December 1967 to June 1974 and from March 1976 to March 1980, with additional service in the Army National Guard and Air National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In March 2014, the Board remanded the claim for further development.

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


REMAND

In the prior remand, the Board directed the AOJ to ask the Veteran to identify treatment for his lung disorder and to obtain any identified records.  In April 2014, the Veteran authorized the release of records for various providers, but it does not appear that VA has attempted to obtain them.  Therefore, the AOJ did not comply with the directives of the remand.  Stegall v. West, 11 Vet. App. 268 (1998).

Moreover, the Veteran underwent a VA examination in May 2014 pursuant to the Board remand.  While the VA examiner addressed the nature of the restrictive lung disease and obstructive lung disease consistent with chronic obstructive pulmonary disease, that examiner did not address the nature of the diagnosis of bronchiectasis.  Therefore, another medical opinion is necessary.
Appellate review of the Veteran's claim of entitlement to TDIU must also be deferred as it is intertwined with issue on appeal.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify all treatment for his lung disorder.  Attempt to obtain all records from Drs. Krishnan, Nagle, Jain, and Gregory as well as from the Diagnostic Laboratory of Oklahoma as identified in his April 2014 releases.  Regardless of his response, obtain any additional treatment records from the Oklahoma City VA Medical Center since March 2014.

2.  After the development in 1 has been completed, return the May 2014 VA examination report for an addendum.  The claims folder is to be made available to the examiner to review.  

The examiner should opine as to whether there is a 50 percent or better probability that the Veteran's bronchiectasis (noted on an April 2009 CT chest x-ray from the Cancer Specialists of Oklahoma) is related to active service, to include in-service exposure to jet fuel and exhaust, missile fuel, diesel fuel exhaust, a fire-extinguisher chemical, asbestos, and beryllium.

A complete rationale for all opinions offered must be provided.

3.  After development above has been completed, the AOJ should readjudicate the Veteran's claims.  If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



_________________________________________________
S. HENEKS
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).