Citation Nr: 1817992 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 06-03 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE 1. Entitlement to service connection for residuals of rheumatic fever. 2. Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Terri Perciavalle, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active duty service from January 1958 to December 1959. This appeal is before the Board of Veterans' Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for residuals of rheumatic fever claimed separately as an enlarged heart, rheumatoid arthritis, diabetes, and hypertension. The RO consolidated the issues into a single claim for residuals of rheumatic fever in the January 2006 statement of the case (SOC). In April 2006, the Veteran presented personal testimony at a Travel Board hearing before a Veterans Law Judge who has since left employment with the Board. A transcript of the hearing is of record. The Veteran declined to have another hearing before a different Veterans Law Judge. See January 2016 response to Board hearing clarification letter. In September 2007 the Board denied service connection for residuals of rheumatic fever. The Veteran appealed the case to the U.S. Court of Appeals for Veterans Claims (Court). In May 2008, the Court vacated the Board's September 2007 decision and remanded the case to the Board for further development and readjudication. The Board remanded the claim in March 2009, October 2009, and March 2011, for further development. In August 2011, the RO denied service connection for asbestosis. The Veteran perfected an appeal to that determination. In April 2016, the Board denied the Veteran's appeals as to service connection for residuals of rheumatic fever and for asbestosis. The Veteran appealed those issues to the Court. The Court then vacated the Board's decision and remanded the case to the Board for further development and readjudication consistent with the Board's prior March 2009 remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Court remanded this case for compliance with the Board's prior March 2009 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). Specifically, the Court noted that the Board's March 2009 remand order suggested that the Veteran be afforded an examination with a review of the record being conducted by a physician. While a subsequent June 2009 examination report was cosigned by a physician, the December 2014 examination upon which the Board later relied was conducted by a nurse practitioner. Thus, the Court determined that a remand of the issue of service connection for residuals of rheumatic fever is required for the Board to ensure compliance with its March 2009 remand order and obtain a medical opinion by a qualified physician. The Court also determined that the Board provided an inadequate statement of reasons or bases for failing to address the competence of the December 2014 examiner and indicated that the issue of the examiner's competence required additional discussion with regard to the matter of service connection for asbestosis. Therefore, that issue was also vacated and remanded. Given the complex nature of the Veteran's asbestosis claim, the Board finds that the AOJ should obtain further examination and opinion with an appropriate physician as the Board cannot discern from the nurse practitioner's credentials whether she has any pulmonary/respiratory medical expertise. Accordingly, the case is REMANDED for the following action: 1. To ensure substantial compliance with the Court's directives, the AOJ should verify/clarify the specific nature of the examiner's professional qualifications at the time the December 2014 examination was conducted to include whether she had any expertise in the field of pulmonary medicine. 2. The RO should schedule the Veteran for an appropriate VA examination(s) BY A PHYSICIAN to determine the etiology of claimed residuals of rheumatic fever and asbestosis. Prior to the examination, the record must be made available to the examiner conducting the examination for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. The physician is requested to obtain an occupational and recreational history to document the Veteran's physical activities over the years. The physician is to obtain a comprehensive pre-service medical and occupational history, to include any history of pre-service hospitalizations. Following examination, the physician is requested to provide a clear opinion as to (1) whether it is at least as likely as not (50 percent or greater probability) that the Veteran was treated for rheumatic fever while in service, and, if so, whether he has any current residuals, including an enlarged heart, rheumatoid arthritis, diabetes mellitus, and hypertension; and (2) whether it is at least as likely as not (50 percent or greater probability) that the Veteran has asbestosis which had its clinical onset during service or is otherwise related to any in-service disease, event, or injury to include exposure to asbestos in service in his position as a welder. The examiner should also discuss the Veteran's possible exposure to asbestos post-service as an iron worker. The examiner should review all pertinent evidence including September 2004 lay evidence, the statements of the Veteran, and the VA medical reports, as well as medical reports of Dr. Wood, Dr. Midcap, Dr. Ryncarz, and Dr. Irack. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Review the medical opinion(s) obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran 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). (Continued on the next page) 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). S. L. Kennedy 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).