Citation Nr: 0400521 Decision Date: 01/08/04 Archive Date: 01/22/04 DOCKET NO. 02-17 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for sarcoidosis. 2. Whether new and material evidence has been received to reopen the claim of service connection for asthmatic bronchitis. 3. Entitlement to claim of service connection for a respiratory disorder other than sarcoidosis, to include reactive airway disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John W. Kim, Law Clerk INTRODUCTION The veteran had active military service from October 1966 to July 1969, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that determined that new and material evidence had not been submitted to reopen a claim of service connection for sarcoidosis. The appeal also arises from a November 2002 rating decision which denied service connection for bronchial asthma, respiratory disorder other than sarcoidosis. In September 1969, the RO denied a claim of service connection for allergic asthma. In January 1985, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for asthma. In April 1994, the RO denied the claim of service connection for asthma as secondary to Agent Orange exposure. The veteran did not appeal any of the aforementioned adverse determinations. As a result, the September 1969, January 1985 and April 1994 RO decisions are final. Thus, new and material evidence is needed to reopen the claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002). In November 2002, the RO denied the claim for service connection for bronchial asthma on a de novo basis. Irrespective of the RO's action in November 2002, the Board must decide whether the veteran has submitted new and material evidence to reopen the claim of service connection for bronchial asthma. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, the Board has recharacterized the issues as stated on the cover page. The Board finds it noteworthy to mention that since a claim of service connection for a respiratory disorder other than sarcoidosis, including a reactive airway disease, has not been previously adjudicated, a de novo review is appropriate. At a June 2003 Board hearing held via video-conference, the veteran expressed a desire to file a claim of service connection for a heart condition. The veteran also expressed a desire to challenge the April 1994 rating decision on grounds of clear and unmistakable error (CUE). None of these issues have been developed or adjudicated by the RO. The issues are referred to the RO for appropriate action. REMAND The Board observes that the Veterans Claims Assistance Act of 2000 (hereinafter VCAA) is applicable to the veteran's claims. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The Act and its implementing regulations (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)) essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003). These laws and regulations also include notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b) (2003). The Board observes that the RO never sent the veteran a VCAA letter regarding his request to reopen his claims of service connection for sarcoidosis and bronchial asthma. An October 2002 VCAA notice letter did not inform the veteran of the type of evidence necessary to reopen a claim of service connection. The Board observes that the letter pertained to the evidence necessary to substantiate a claim of service connection for bronchial asthma and for a respiratory disorder other than sarcoidosis on a de novo basis. The RO should issue the veteran and his representative a VCAA letter that clearly and specifically informs him of the evidence necessary to substantiate his claims of whether new and material evidence has been submitted to reopen his claims of service connection for sarcoidosis and asthmatic bronchitis. Additionally, he should be informed of which portion of the information and evidence, if any, is to be provided by him and which portion, if any, VA will attempt to obtain on his behalf. During a June 2003 Video-Conference hearing, the veteran argued that VA committed CUE in an April 1994 rating decision when it denied service connection for asthma, for sarcoidosis and for arrhythmia, heartblock, congestive heart failure. With respect to the veteran's claims of whether new and material evidence has been submitted to reopen his claims of service connection for sarcoidosis and asthmatic bronchitis, the Board observes that they are inextricably intertwined with his raised CUE claim challenging the April 1994 rating decision. The United States Court of Appeals for Veterans Claims (Court) has held that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As for the claim of service connection for a respiratory disorder, to include reactive airway disease, a review of the record reveals that, during an October 2002 VA examination, the examiner indicated that the veteran would be scheduled for pulmonary function tests. The Board notes that a subsequent report of such test results is not of record. Further, the Board observes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO should obtain this examination report and associate it with the claims file. Additionally, the Board notes that the veteran has submitted a January 2002 statement from J.W. Rodgers, M.D., in support of his claim. Dr. Rodgers stated that the veteran had asthmatic bronchitis and reactive airway disease and that he had a history of sarcoidosis. He stated that it was not uncommon to see patients who have been exposed to Agent Orange to also have asthma and reactive airway disease. He further stated that considering the veteran was in Vietnam and did have exposure to Agent Orange, one could conclude that this exposure caused symptoms of cough and wheeze. The Board finds that Dr. Rodgers' opinion is speculative but that it does raise the question as to whether the veteran's current disorders are related to service. Therefore, the veteran should be scheduled for a VA respiratory examination to include an opinion regarding the etiology of any respiratory disorder found. Accordingly, this case is REMANDED to the RO for the following actions: 1. With respect to the veteran's claims of whether new and material evidence has been submitted to reopen the claims of service connection for sarcoidosis and asthmatic bronchitis, the RO should send the veteran a letter that complies with the notification requirements which is consistent with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002). 2. As for the claim of service connection for a respiratory disorder, to include reactive airway disease, the RO should obtain the VA examination report of the pulmonary function tests mentioned in the October 2002 VA examination report. 3. The RO should schedule the veteran for a VA respiratory examination for the purpose of determining the nature and etiology of any current disorder found, including asthma, sarcoidosis, and reactive airway disease. The claims file must be made available to and reviewed by the examiner. The examiner should do the following: A. Identify all existing respiratory disabilities and provide an opinion as to whether each identified diagnosis is related to the veteran's period of service from October 1966 to July 1969, including exposure to Agent Orange. B. State whether the veteran currently has sarcoidosis. C. Comment on the January 2002 statement from Dr. Rodgers and the undated report from S. Richman, M.D. 4. The RO should formally adjudicate the issue of whether CUE existed in the April 1994 rating decision whereby the RO denied service connection for asthma and sarcoidosis, as it is inextricably intertwined with the issue of whether new and material evidence has been submitted to reopen a claim for service connection for sarcoidosis and bronchial asthma. Harris v. Derwinski, 1 Vet. App. 180 (1991). 5. Thereafter, the RO should readjudicate the claim of whether new and material evidence has been received to reopen the claim of service connection for sarcoidosis; whether new and material evidence has been received to reopen the claim of service connection for asthmatic bronchitis; and the claim of service connection for a respiratory disorder other than sarcoidosis, to include reactive airway disease. If the benefits sought on appeal are not granted, the RO should issue to the veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response before the claims file is returned to the Board for further appellate consideration. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2003).