Citation Nr: 0715885 Decision Date: 05/29/07 Archive Date: 06/11/07 DOCKET NO. 94-43 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a respiratory disability, to include sarcoidosis. 2. Entitlement to service connection for ulcerative colitis. 3. Entitlement to service connection for tinea corporis. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD D. Raffaelli, Associate Counsel INTRODUCTION The veteran served on active duty from June 1991 to December 1991 and had periods of active duty for training beginning in 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a June 2003 decision, the Board denied the claims on appeal. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a December 2003 Joint Motion for Remand, the parties requested that the Board decision be vacated and the case remanded. In February 2005, the Board remanded the case for compliance with the December 2003 Court Order. The issues of entitlement to service connection for ulcerative colitis and tinea corporis are addressed in the REMAND portion of the decision below. FINDING OF FACT The preponderance of the evidence demonstrates that the veteran's respiratory disability, to include sarcoidosis, is related to active service. CONCLUSION OF LAW Respiratory disability, to include sarcoidosis, was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.310(a) (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection is established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C.A. § 1110. In order to qualify for entitlement to compensation under 38 U.S.C.A. § 1110, a claimant must prove the existence of (1) a disability and (2) that such disability has resulted from a disease or injury that occurred in the line of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1360-61 (Fed. Cir. 2001). The requisite link between a current disability and military service may be established, in the absence of medical evidence that does so, by medical evidence that links a current disability to symptoms that began in service and continues to the present. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In claims for benefits, VA shall consider all lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (stating that a claimant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In May 2006, the veteran underwent a VA Respiratory Examination. The examiner noted that his findings were suggestive of sarcoidosis, but a definite diagnosis would require observation over time and possible invasive testing. He added that the etiology of sarcoidosis is unknown, but the contents of smoke from burning oil wells could contain factors responsible for this condition. In September 2006, the examiner provided further clarification noting that the veteran's respiratory signs and symptoms are more likely than not due to exposure to burning oil, suffered in Iraq, which contained numerous, noxious chemicals capable of causing permanent respiratory damage. He added that this was true whether or not the definitive diagnosis is sarcoidosis and that such exposure may well initiate the inflammatory cascade that creates sarcoidosis and may also do direct damage to lung parenchyma and airway mucosa so as to result in the same symptoms. Based on the examiner's opinion, service connection for a respiratory disability, to include sarcoidosis, is warranted. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 54. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Because of the favorable outcome in this case, any failure of VA to fully comply with the VCAA is harmless error. ORDER Entitlement to service connection for a respiratory disability, to include sarcoidosis, is granted. REMAND The February 2005 Board Remand requested that the veteran's medical records be obtained from the Augusta, Georgia VAMC. A June 2004 medical record noted that the veteran was receiving social security disability for multiple medical problems. These records have not been associated with the claim's file, and therefore, the remaining issues on appeal must be remanded in order to request those records. Accordingly, the issues of entitlement to service connection for ulcerative colitis and tinea corporis are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC for the following actions: 1. The RO should request the veteran's records from the Social Security Administration. 2. The RO should then readjudicate the claim. If any benefit sought on appeal remains denied, the veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). The appellant and his representative should be allowed an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim 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.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs