Citation Nr: 1818331 Decision Date: 03/27/18 Archive Date: 04/04/18 DOCKET NO. 14-25 103A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for left lower lung lobectomy, residual of pulmonary sequestration, postoperative. 2. Entitlement to an initial compensable evaluation for scars of the left lower chest from the paraspinal muscles to below the left breast and two incisional scars in the left lower chest wall, associated with left lower lung lobectomy. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to April 1989 and from September 2001 to April 2002. She was subsequently a member of the Air National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for left lower lung lobectomy and assigned a noncompensable rating effective July 18, 2003, and a 30 percent rating effective January 20, 2012. The RO also granted service connection for scars of the left lower chest and assigned a noncompensable rating effective July 18, 2003, and denied a claim for a 10 percent evaluation based on multiple noncompensable service-connected disabilities. In a May 2014 decision review officer decision, the RO granted an earlier effective date of July 18, 2003 for the assignment of a 30 percent rating for the Veteran's service-connected left lower lung lobectomy, the date of filing of the original claim for service connection. The Veteran filed a Notice of Disagreement in November 2012 with the February 2012 rating decision, disagreeing with the ratings assigned to her service connected lung condition and scars, and disagreeing with the denial of a 10 percent evaluation based on multiple noncompensable service-connected disabilities. However, in July 2014, the Veteran submitted a substantive appeal in lieu of a VA Form 9, expressly limiting her appeal to entitlement to higher disability ratings for her lung disability and scars of her left lower chest. Therefore, this appeal does not include the issue of entitlement to a 10 percent rating based on multiple, noncompensable service-connected disabilities. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is needed prior to adjudication of the issues on appeal. VA treatment records from April 2013 indicate that the Veteran is being treated by a non-VA primary care physician, Dr. L.W. However there are no treatment records from Dr. L.W. in the claims file. Because such records, if obtained, might contain information bearing on the Veteran's appeals, efforts should be made to procure them. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In addition, all updated VA treatment records should be obtained and associated with the claims file. Also, in a July 2017 statement, the Veteran's attorney requested that the Board remand the claims on appeal for new VA examinations. It was indicated that the last VA examination in January 2012 was conducted over five years ago, and does not accurately reflect the current level of the Veteran's disabilities. The Board notes that VA's duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). However, during a May 2013 VA psychosocial assessment, the Veteran stated that she had significant pain problems, which she described as constant pain where her lung was removed. As it has been more than six years since the Veteran was last examined and there is some indication of a possible worsening of the Veteran's disability since that examination, the claim must be remanded for a new VA examination addressing the current symptoms of the service-connected left lower lung lobectomy, to include the associated scars of the left lower chest from the paraspinal muscles to below the left breast and two incisional scars in the left lower chest wall. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claims, to include records from Dr. L.W., her primary care provider. Based on the response received, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 2. Obtain and associate with the claims file VA treatment records from May 2013 to the present. 3. After receiving all additional records, schedule the Veteran for an appropriate VA examination(s) to determine the current nature and severity of her service-connected left lower lung lobectomy, residual of pulmonary sequestration, postoperative, and scars of the left lower chest from the paraspinal muscles to below the left breast and two incisional scars in the left lower chest wall. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies must be accomplished. The examiner should identify the nature and severity of all manifestations of the Veteran's left lower lung lobectomy, to include detailed findings regarding the scars of the left lower chest from the paraspinal muscles to below the left breast and two incisional scars in the left lower chest wall. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).