Citation Nr: 21025535 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-10 339 DATE: April 28, 2021 REMANDED Entitlement to a compensable disability rating for residuals of right lung surgery is remanded. REASONS FOR REMAND The Veteran served honorably on active duty with the United States Air Force from November 1979 to December 1992, including service in support of Operation Desert Shield/Storm. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2017. A transcript of the hearing is associated with the claims file. This case was most recently before the Board in October 2019, at which time it was remanded for additional development. The case has since returned to the Board for appellate consideration. Regrettably, for the reasons discussed below, another remand is necessary. Entitlement to a compensable rating for residuals of right lung surgery is remanded. In its October 2019 remand instructions, the Board directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination that included pulmonary function testing (PFT), which is necessary for evaluating the Veteran’s disability under the applicable Diagnostic Code. The record shows the Veteran was initially scheduled for a VA examination in January 2020. A January 2020 Report of General Information indicates the Veteran missed the examination because he had no transportation available, and he requested to be scheduled for another examination appointment in February. A screenshot of the Veteran’s examination history indicates he was scheduled for a new examination, but a February 2020 record shows the examination request was canceled because he failed to report. There is no evidence that the Veteran or his attorney received notice of the date and time of the examination. Nevertheless, the record shows that a VA respiratory conditions examination was completed in August 2020, albeit without in-person or video telehealth examination. The examiner indicated that the existing medical evidence provided sufficient information on which to prepare the examination report and that an in-person examination would likely provide no additional relevant evidence. The examiner concluded that the Veteran’s disability had resolved. An addendum to that report shows that the Veteran was scheduled for “diagnostic testing” in November 2020 and December 2020, but that he did not attend the appointments. The record contains no evidence that the Veteran was notified of the date and time of the diagnostic testing, nor is there information concerning the nature of the diagnostic testing. The February 2021 Supplemental Statement of the Case does not mention the Veteran’s failure to report for the February 2020 examination or the November 2020 and December 2020 diagnostic testing. Given the absence of evidence showing that the Veteran was properly notified of his VA examination or related diagnostic testing, the Board finds that remand is necessary to afford the Veteran another opportunity to attend a VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand).   Accordingly, the matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current nature and severity of his service-connected residuals of right lung surgery. If an examination is scheduled and the Veteran fails to report, then a copy of the examination notice letter must be associated with the Veteran’s claims file. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected chronic bronchitis alone and discuss the effect of the disability on any occupational functioning and activities of daily living. The examination must include a pulmonary function test, including pre- and post-bronchodilator studies unless the pre-bronchodilator PFTs are normal or the examiner determines that post-bronchodilator studies should not be done and states why. If DLCO (SB) testing is not conducted, the examiner must state why such a test would not be useful or valid in this particular case. If there is a disparity between the results of different testing (e.g., the FEV-1, FVC, etc.), the examiner must state which test (FEV-1, FEV-1/FVC, or DLCO (SB), as the rating criteria do not provide ratings based on FVC alone) most accurately reflects the level of disability and explain why that test most accurately reflects the Veteran’s level of disability. The examiner must also provide an explanation, to the best of his or her ability, as to why previous examiners have said that FEV-1/FVC most accurately reflected the Veteran’s level of disability. If such an explanation cannot be provided, the examiner must state why. 2. Then, readjudicate the Veteran’s claim based on the entirety of the evidence. If the claim remains denied, provide the Veteran and his representative a supplemental statement of the case (SSOC) and allow an appropriate time for response. Then, return the case to the Board for further adjudication. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, Counsel 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.