Citation Nr: 1800428	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  15-45 968	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado



THE ISSUE

Entitlement to service connection for pulmonary fibrosis, to include as due to asbestos exposure.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

M. Postek, Counsel



INTRODUCTION

The Veteran served on active duty from September 1951 to June 1955.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

The Veteran was scheduled for a videoconference hearing before the Board in February 2017; however, he cancelled his request through a January 2017 written statement submitted by his representative.  Thus, his hearing request is considered withdrawn.

In a May 2017 decision, the Board denied a claim for an initial compensable evaluation for bilateral hearing loss and remanded the above claim for further development.  The case has since been returned to the Board for appellate review.

This appeal was processed using the Veterans Benefits Management System (VBMS) and has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In the May 2017 remand, the Board instructed the AOJ to secure any outstanding, relevant VA treatment records, including a search for certain reports that appeared to be in the Vista Imaging System, among other documents.  In the September 2017 VA clarifying medical opinion obtained while the case was on remand, the VA examiner noted review of an October 8, 2015, pulmonary specialist consultation, also noted to be in the Vista Imaging System.

Although the AOJ's actions in this regard were largely responsive to the Board's remand, it does not appear that the October 2015 consultation report is contained in the claims file.  Based on the foregoing, the Board finds that a remand is required to ensure compliance with the prior remand.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order).

Accordingly, the case is REMANDED for the following action:

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

1.  The AOJ should secure the October 8, 2015, non-VA pulmonary specialist consultation report from Dr. K discussed in the September 2017 VA clarifying medical opinion.  The record should be associated with the claims file.  

It does not appear that the actual report was contained in the CAPRI uploads, but may instead be available in the Vista Imaging System based on the notation in the VA clarifying medical opinion.

2.  After completing the above action and any other development as may be indicated as a consequence of the action taken in the preceding paragraph, the case should be readjudicated by the AOJ.  If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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. §§ 5109B, 7112 (2012).



_________________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).