Citation Nr: 1741802 Decision Date: 09/22/17 Archive Date: 10/02/17 DOCKET NO. 11-23 683A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a respiratory disorder, to include bronchitis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to August 1973, including service in Vietnam. His decorations included a Silver Star with Valor, Bronze Star with Valor, Combat Infantry Badge, and Purple Heart. The Veteran died in May 2015, and the Appellant is the Veteran's surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bronchitis. In a July 2014 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge; however, in October 2014, he withdrew his hearing request. See 38 C.F.R. § 20.704(d). In March 2015, the Board denied entitlement to service connection for a respiratory disorder. The Board also found that the issue of entitlement to a TDIU had been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the issue for further development. The Veteran appealed the Board's denial of service connection for a respiratory disorder to the United States Court of Appeals for Veterans Claims (Court). In a December 2016 decision, the Court vacated and remanded the issue. In May 2017, the Board remanded the service connection issue for further development. Both issues have now been returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Appellant's claims so that she is afforded every possible consideration. In May 2017, the Board remanded the claim for service connection for a respiratory disorder. Pursuant to the Court's decision, the AOJ was instructed to request morning reports of the Veteran's unit to determine whether the Veteran was excluded from field duty while stationed in Vietnam. The AOJ was also instructed to obtain a medical opinion on the etiology of the claimed respiratory disorder. A VA physician was to opine on whether it was at least as likely as not that any diagnosed respiratory disorder arose during the Veteran's service or was otherwise related to his service. In August 2017, the RO requested morning reports; however, there is no record in the claims file indicating whether the request has been completed, and if so, what the results were. In addition, a medical opinion on the etiology of any respiratory disorder has not been obtained. The Board therefore finds that there was not substantial compliance with the remand directives and remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). With regard to the issue of entitlement to a TDIU, the Board notes that in its March 2015 decision, increased initial ratings of 50 percent for PTSD and 30 percent for migraines were granted. These increased ratings do not appear to have been implemented by the AOJ. Any decision on the service connection claim being remanded herein, as well as the implementation of the increased ratings for PTSD and migraines, may affect the claim for a TDIU. Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Issue a rating decision to effectuate the awards of increased initial ratings of 50 percent for PTSD and 30 percent for migraines, pursuant to the March 2015 Board decision. 2. Complete the August 2017 request to obtain morning reports of the Veteran's unit, and any other available documentation, relevant to determining whether the Veteran was excluded from field duty while stationed in Vietnam from July 10, 1968, to July 9, 1969. If additional information is needed to request such records, the Appellant should be asked to provide such. If individual requests for multiple two-month periods of time need to be undertaken to cover the entire period the Veteran was in Vietnam, such should be done. If any requested records cannot be obtained, the Appellant should be notified. 3. Send the claims file to a VA physician to obtain an opinion on the claim for service connection for a respiratory disorder. The physician is requested to review all pertinent records associated with the claims file. Thereafter, s/he should opine on whether it is at least as likely as not (50 percent or greater degree of probability) that any diagnosed respiratory disorder present during the pendency of the Veteran's appeal arose during service or was otherwise related to the Veteran's military service. In addition to considering the VA medical opinions obtained in January 2013 May 2014, the physician should specifically consider and discuss: a. The Veteran's assertions that he was restricted from field duty in Vietnam because his persistent cough would reveal the unit's position and his continued symptoms in Germany; b. The March 1986 and October 1987 negative chest x-ray results; c. The February 2013 opinion from Dr. Chacko, primary care, indicating that the Veteran's chronic bronchitis was more likely than not related to his bronchitis in 1973 in Vietnam; d. The February 2014 opinion from Dr. Llinas, psychiatrist, indicating that the Veteran's chronic obstructive pulmonary disorder was related to the bronchiolitis he had in service; and e. The July 2014 opinion from Dr. Chacko indicating that the Veteran was treated for exacerbations of bronchitis/bronchiolitis and continued to have chronic symptoms. 4. After completing the above development, and any additional development deemed necessary, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Appellant and her representative and they should be afforded a reasonable opportunity for response. 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 2014). _________________________________________________ H. SEESEL 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) (2016).