Citation Nr: 0812714 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-05 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of heat exhaustion. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The veteran had active duty service from February 1959 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran was afforded a February 2008 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran alleges that he has current residual disabilities from an episode of heat exhaustion he sustained in June 1994, while serving on active duty for training with the U.S. Air Force Reserve. The Board finds that additional development is necessary before it may proceed to adjudicate the claim. Although the Board has not reviewed the merits of the claim, the record indicates that the veteran sustained the episode of heat exhaustion as he has reported. In letters dated in May 2006 and January 2008, the veteran's treating physician C.A.J., M.D., reported that the veteran had several recurrent heat exhaustion episodes since the June 1994 incident, and these episodes had caused a decrease in the veteran's strength. Dr. C.A.J. also noted in the January 2008 letter that the veteran had sustained hypertension, peptic ulcer disease, joint pain, weakness and "other personal illnesses," although he did not state that the latter disorders were caused by the in-service incident. In order to establish service connection, there must be (1) evidence of an injury in military service or a disease that began in or was made worse during military service or one which would qualify for presumptive service connection; (2) competent evidence of a current physical or mental disability; and, (3) competent evidence of a relationship between the veteran's current disability and the in-service event. Pond v. West, 12 Vet. App. 341, 346 (1999); Rose v. West, 11 Vet. App. 169, 171 (1998). While the in-service event of heat stroke may represent the first prong of the Pond inquiry (i.e., an in-service event), the record is unclear as to whether the veteran currently has any disorders that may be linked to such an incident. Although the veteran was afforded a June 2004 VA examination which found that the veteran had a history of heat stroke and no residual disabilities, the examiner did not have the May 2006 in January 2008 letters of Dr. C.A.J., and the examiner did not have the claims folder available for review in making this determination. Shipwash v. Brown, 8 Vet.App. 218, 222 (1995); Flash v. Brown, 8 Vet.App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). The Board finds that the examiner must review the claims file and note any changes to his June 2004 VA examination report following review of the claims file. The current record is not clear as to the specific residual disabilities that the veteran currently experiences as a result of his in-service heat stroke. It is well-settled that the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability - the first prong of a successful claim of service connection. In the absence of proof of a present disability, there is no valid claim presented. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). By "disability" is meant "an impairment in earnings capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) [Citing with approval VA's definition of "disability" in 38 C.F.R. § 4.1 and "increase in disability" in 38 C.F.R. § 3.306(b)]; see also Leopoldo v. Brown, 4 Vet. App. 216, 219 (1993) (A "disability" is a disease, injury, or other physical or mental defect."). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The RO/AMC should notify the veteran that he may submit any additional medical evidence that identifies the current residual disabilities that resulted from his in-service heat stroke. In particular, the RO/AMC should advise the veteran that he may submit any medical evidence from Dr. C.A.J., or any other physician, which identifies the disability alleged to have been caused by the episode of heat stroke in June 1994. 2. After the passage of a reasonable amount of time or upon the veteran's response, the RO/AMC will afford the veteran a VA medical examination, to be conducted by an appropriately qualified physician or physicians, to ascertain whether the veteran has any residual disability resulting from the June 1994 episode of heat stroke. The claims file, and a copy of this remand, will be reviewed by the examiner(s) who will acknowledge such receipt and review in any report generated by this remand. After reviewing the c-file and any clinical testing deemed appropriate, the examiner(s) are requested to state whether the veteran has recurrent or episodic heat stroke (or any manifestation of such an incident including dyspnea, headaches, hypertension or any other diagnosis) as a result of the June 1994 incident. 3. After completion of the above, and any additional development of the evidence, the RO/AMC should review the record, to include all additional evidence, and readjudicate the claim. If any benefits sought remain denied, the veteran and his representative should be issued an appropriate supplemental statement of the case, and afforded the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2007). _________________________________________________ VITO A. CLEMENTI 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) (2006).