BVA9502853 DOCKET NO. 91-12 784 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased (compensable) evaluation for the residuals of bronchopneumonia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from December 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (the Board) on a appeal from a rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). In its May 1990 rating determination the RO confirmed a non-compensable schedular evaluation. REMAND The record in this case shows that the appellant was treated in 1945, while in service, for bronchopneumonia. Lay evidence has been presented as to recurrence of symptoms allegedly related to this disability post service. Clinical evidence shows that subsequent to service, the veteran was treated for increased bronchial drainage in November 1951. A mass representative of a pericardial cyst was noted in May 1964. Encephalopathy, as a residual of Legionnaire's disease with cerebral hypoxia, was clinically demonstrated in 1982. More recently, a VA examination conducted in August 1991, showed that his pulmonary pathology was associated with a diagnosis of chronic bronchitis with moderately severe chronic obstructive pulmonary disease. A VA examination in June 1993 resulted in diagnoses of chronic bronchitis with moderately severe chronic obstructive pulmonary disease with a history of right lung pneumonia. Whether any part or all of these disorders represent manifestations of the service connected disability is not clear from the record. The Board has found that the circumstances in this case, are enough to make the claim at least capable of substantiation, and thus well-grounded pursuant to 38 U.S.C.A. § 5107 (West 1991). Murphy v. Derwinski, 1 Vet.App. 78 (1990). Once it has been determined that a claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107 This case has been before the Board three times previously for evidentiary development. In both June 1991 and June 1992 the Board remanded the case, requesting that the RO schedule the appellant for an examination by specialists in respiratory diseases, and requesting that in conjunction with an examination, the examiners render an opinion as to whether any or all of his current respiratory symptoms were etiologically related to his service-connected disability, residuals of bronchopneumonia. At both times, examinations were conducted. However, on neither occasion did the examiner express an opinion on the point specified by the Board. Therefore, the examinations were inadequate for purposes of rendering a Board decision on the merits of the case. In June 1994 the case again came before the Board. The Board again remanded the case for the same additional development, namely an examination and opinion. An examination was scheduled for July 1994. The appellant's daughter called to cancel the examination because the appellant was in the hospital. In December 1994, correspondence was received from the appellant's DAV representative. He noted that the record does not show that the RO tried to reschedule an examination, nor that the appellant contacted the RO to advise them of his willingness and ability to report for an examination. However, the DAV representative contacted the appellant in December 1994, at which time the appellant indicated that he was willing and able to report for an examination. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re- examination and a claimant, without good cause, fails to report for such examination, or re-examination, if the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. However, where good cause is shown, an examination may be rescheduled. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or the death of an immediate family member. The Board is satisfied that the failure of the appellant to report for his VA examination in July 1994 due to his hospitalization constitutes good cause. 38 C.F.R. § 3.655 (1993). The United States Court of Veterans Appeals (Court) has held that the duty to assist includes the duty to obtain thorough and contemporaneous VA examinations, including examinations by a specialist when indicated, and the duty to obtain pertinent medical records. Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990) Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). It is particularly imperative in this case that the appellant be re-examined. The Board must have information of record which establishes whether or not a causal relationship exists between the appellant's service-connected residuals of bronchopneumonia and his currently manifested symptoms in order to make an appellate determination. This requires that an opinion and a complete explanation of any causal relationship be provided as to any residuals of bronchopneumonia found upon a current examination and past examinations of record. Accordingly, the case is REMANDED for the following development: The appellant should be scheduled for an examination by a specialist in respiratory disorders in order to determine the nature and severity of any residuals of his service connected bronchopneumonia. It is imperative that the examiner provide a clear and complete list the residuals found and diagnoses, and further, provide an opinion as to whether it is at least as likely as not that the respiratory disorders diagnosed post-service both in the current examination and those previously conducted of record, are causally related to the service-connected bronchopneumonia. If it is determined that any residuals diagnosed post-service are causally related to the service-connected bronchopneumonia, the examiner is asked to support this conclusion by explaining what evidence of record was relied on, particularly differentiating between clinical evidence and the statements of medical history supplied by the appellant. The claims folder and a copy of this remand should be made available to the examiner in conjunction with the examination. Expeditious handling of this matter is requested, as this is the fourth time this case has been remanded for an examination conducted with the above specified instructions. The RO is asked to review the examination report to insure that the findings, conclusions, and explanations requested by the Board are included. To the extent that they are not, the examination records should be returned to the examiner for supplementation. Thereafter, the case should be reviewed by the RO. If the benefits sought are not granted, a supplemental statement of the case should be issued to the appellant and his representative and they should be provided an opportunity to respond. Subsequently, the claims folder should be returned to the Board for further review, if necessary. By this action, the Board intimates no opinion legal or factual, as to the ultimate disposition warranted as to this specific issue. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).