Citation Nr: 21001246
Decision Date: 01/07/21	Archive Date: 01/07/21

DOCKET NO. 17-37 863
DATE: January 7, 2021

REMANDED

Entitlement to an initial compensable rating for residuals of spontaneous pneumothorax is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1953 to October 1957. 

A hearing was held before the undersigned veterans law judge in April 2019. The transcript is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103.

 

1. Entitlement to an initial compensable rating for residuals of spontaneous pneumothorax is remanded.

In the September 2019 Board remand, the AOJ was instructed to obtain a medical opinion which clearly determined the Veteran’s impairment due to his service-connected residuals of spontaneous pneumothorax and that impairment due to his non service-connected COPD. The opinion obtained stated only that the Veteran’s COPD was the “predominant” source of his impairment.  This statement, for legal reasons, borders on the useless.

Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. Another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matter is REMANDED for the following action:

1. Schedule an examination by an appropriate clinician to determine the extent of impairment due to service-connected residuals of spontaneous pneumothorax. 

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The examiner must clearly state the impairment due to the service-connected residuals of spontaneous pneumothorax as distinguished from any non-service connected disability. If the examiner cannot distinguish the impairments, the report should so state. 

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Creegan

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.