Citation Nr: 1804833 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-17 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for residuals of left chest thoracotomy, bronchiectasis, and left lower lobectomy with adhesions. 2. Entitlement to an evaluation in excess of 10 percent for residuals of left chest thoracotomy scar. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to June 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In March 2017, the Veteran testified at a Board videoconference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The matter of entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected left chest thoracotomy and scar residuals, is referred to the RO for any appropriate action to afford the Veteran and his representative instructions and an opportunity to file a formal claim on the required standardized form. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran last had VA examinations to fully evaluate his service-connected left chest with associated scar disabilities in March 2014. At that time, the examiner used pulmonary function test (PFT) findings from May 2012. During his March 2017 Board videoconference hearing, the Veteran reported increased symptomatology of his service-connected disabilities, including shortness of breath, chest pain, and scar numbness, tenderness, and functional impairment. Consequently, new examinations with current PFT testing are warranted to determine the current severity of the Veteran's service-connected residuals of left chest thoracotomy, bronchiectasis, and left lower lobectomy with adhesions as well as residuals of the left chest thoracotomy scar. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Finally, updated VA treatment records, from the Tomah VAMC, Madison VAMC, and Milwaukee VAMC, to include all associated outpatient clinics, dated since February 2017, should be obtained and associated with the electronic claims file. 38 U.S.C. § 5103A(c) (2012); 38 C.F.R. § 3.159(c)(2) (2017); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Accordingly, the case is REMANDED for the following actions: 1. The AOJ must obtain updated treatment records pertaining to the Veteran's service-connected residuals of left chest thoracotomy, bronchiectasis, and left lower lobectomy with adhesions as well as residuals of left chest thoracotomy scar from Tomah VAMC, Madison VAMC, and Milwaukee VAMC for the time period from February 2017 to the present and associate them with the record. 2. The Veteran must be also afforded an appropriate VA medical examination(s) to determine the current severity of his service-connected residuals of left chest thoracotomy, bronchiectasis, and left lower lobectomy with adhesions as well as residuals of left chest thoracotomy scar. The examination should be conducted at the VA medical facility in Madison, if practical. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that the electronic claims file has been reviewed. Any indicated diagnostic tests and studies must be accomplished, to include current PFT testing. All pertinent symptomatology and findings must be reported in detail. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2017). 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated, taking into consideration all relevant evidence associated with the evidence of record since the May 2014 statement of the case. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL MARTIN 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).