Citation Nr: 1820006 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 14-37 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to a rating in excess of 10 percent for post-operative residuals thoracotomy, 6th right rib with pleural thickening, with phrenic nerve paralysis. 2. Entitlement to a rating in excess of 10 percent for scar, status post pneumothorax, evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to October 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In such rating decision, the RO granted a separate 10 percent rating for the Veteran's scar, status post pneumothorax, effective August 29, 2011. The Board notes that the Veteran did not specifically appeal the assigned effective date or rating for such scar; however, such issue is part and parcel of his claim for an increased rating and thus, has been included on the title page of this decision. In an April 2012 rating decision, the RO granted service connection for phrenic nerve paralysis, which was evaluated in conjunction with the Veteran's post-operative residuals thoracotomy, 6th right rib with pleural thickening. In accordance with his request, the Veteran was scheduled for a Board hearing in February 2018. However, in a statement submitted that same month, the Veteran indicated that he wished to cancel his hearing. Thus, the Veteran's request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(e) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In this regard, the Board observes that the Veteran was last afforded a VA examination in December 2012 in order to ascertain the nature and severity of his respiratory disability. However, in his September VA Form 9 (substantive appeal), the Veteran stated that his symptoms had worsened and that he would submit additional evidence shortly from his pulmonologist confirming such fact. The Board notes that the Veteran did not submit any additional evidence. However, as the Veteran stated that his symptoms had worsened and his last VA examination was in December 2012, the Board finds that a remand is warranted in order to provide the Veteran another VA examination to assess the current nature and severity of his respiratory disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). As the Veteran's scar will be examined as part of the examination ordered in connection with his respiratory disability, the Board finds that such issue is inextricably intertwined with the latter claim. Therefore, adjudication of such matter will be deferred pending the receipt of the development ordered in connection with this remand. Furthermore, while on remand, the Veteran should be given an opportunity to identify any records relevant to the claims on appeal that have not been obtained. Thereafter, all identified records should be obtained. 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 Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the remanded claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current severity of his service-connected respiratory disability. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner should describe the nature and severity of all manifestations of the Veteran's respiratory disability. (B) Pulmonary function tests should be performed. A maximum exercise capacity test (in terms of ml/kg/min oxygen consumption) should be performed unless the examiner determines that the maximum exercise capacity test may be detrimental to the Veteran. The examiner should state which test most accurately reflects the Veteran's level of disability. (C) The examiner should describe the functional impairment associated with the Veteran's respiratory disability. (D) The examiner should also provide a full description of any scars associated with the Veteran's service-connected respiratory disability, including the dimensions of any such scars and information as to whether the scars are deep (i.e., associated with underlying soft tissue damage) or superficial; whether they are unstable; and whether they are tender and painful on examination. A rationale for any opinion offered should be provided. 3. 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, the Veteran's claims should be readjudicated based on the entirety of the evidence. If a claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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). _________________________________________________ A.J. Spector Acting 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).