Citation Nr: 0814581 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-05 058 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a pulmonary/respiratory disability, claimed as pulmonary artery hypertension with atresia of the right pulmonary artery. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from February 1956 to February 1960, and subsequent service as a member of the United States Air Force Reserves from 1976 until his retirement in 1998. These matters comes before the Board of Veterans' Appeals (Board) on appeal of a June 2005 rating decision in which the RO denied, inter alia, service connection for a left leg condition, gastroesophageal reflux disease (GERD), sinusitis, pulmonary artery hypertension with atresia of the right pulmonary, and a TDIU. The veteran filed a notice of disagreement (NOD) in August 2005 specific to those five matters, and requested a hearing before a Decision Review Officer (DRO). An October 2005 report of contact (ROC), signed by the veteran's representative, on behalf of the veteran, reflects that, among other things, the veteran wished to withdraw his claims for service connection for a left leg condition, GERD, and sinusitis. The October 2005 ROC also reflects that the veteran withdrew his prior request for a DRO hearing. The RO issued a statement of the case (SOC) in January 2006 addressing the remaining claim for service connection for pulmonary artery hypertension and the claim for a TDIU. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in January 2006; in that document, he requested a Board hearing at the RO (Travel Board hearing). By a May 2007 letter, the veteran was notified of a Travel Board hearing scheduled for June 14, 2007; however, the veteran failed to appear on the scheduled hearing date, and no further communication was received from the appellant regarding the hearing request or his failure to appear. In view of the record, and to give the veteran every consideration in connection with the current claim for service connection, the Board has recharacterized that claim for service connection for pulmonary artery hypertension on appeal as set forth on the title page. For the reasons expressed below, the matters on appeal are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action, on his part, is required. REMAND After review of the claims file, the Board finds that further RO action on the claim for service connection is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp 2007); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). The record indicates that the veteran's service treatment records (STRs) from his period of active duty were likely destroyed in a fire at the NPRC in 1973,. The Board is aware that in such a situation it has a heightened duty to assist the appellant in development of his claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In September 2004, the veteran was provided notice of alternative documents that may be substituted for STRs pursuant to the VA Adjudication Procedure Manual, Manual M21-1, Part III, paragraph 4.25(c) and 4.29 (Oct. 6, 1993). With respect to the veteran's Air Force Reserve service, after his period of active duty service, the applicable legal authority permits service connection only for a disability resulting from disease or injury incurred in or aggravated coincident with ACDUTRA, or for disability resulting from injury during INACDUTRA. See 38 U.S.C.A. § 101(22),(23),(24) (West 2002); 38 C.F.R. § 3.6 (2007). The veteran asserts that the respiratory/pulmonary abnormality noted on his June 1976 Air Force Reserve entrance examination (and contemporaneous x-rays) worsened as a result of his service in the Air Force Reserve. Initially, the Board points out that only selected STRs on microfiche obtained from the National Personnel Records Center and furnished by the veteran have been associated with the claims file. In this regard, the report of a June 1976 Air Force enlistment examination shows that the veteran's lungs were evaluated as clinically abnormal. After reviewing the veteran's 1976 chest x-ray, the veteran's private physician, W.M. Boomer, M.D.opined, in a May 2004 letter, that the veteran's pulmonary artery atresia appeared to be evident at that time, and it showed similar changes in his pulmonary artery that he has at the present. Subsequent medical records show that the veteran is currently diagnosed with obstructive sleep apnea, chronic obstructive pulmonary disease (COPD), and shortness of breath, in addition to pulmonary artery atresia. In a July 2004 letter, the veteran stated he had obtained a copy of his medical records from the 507 TAC Hospital Group, at Tinker AFB, Oklahoma. By an August 2004 letter, the RO informed the veteran that the service department had been unable to locate his STRs, and requested the veteran to take his copies to his nearest VARO who would then copy his STRs free of charge for him to submit for consideration with his claim. A second request was made to the veteran a few months later; however, no additional STRs have been received from the veteran. On remand, the veteran should be afforded another opportunity to submit all STRs (or copies thereof) in his possession. The Board is aware of the veteran's concern that he only has one copy of his STRs, as stated in his July 2004 letter. However, the Board must emphasize to the veteran that the duty to assist "is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190 (1991). Under the VCAA, a claimant for VA benefits has the responsibility to present and support his claims, 38 U.S.C.A. § 5107(a), and he cannot passively wait for assistance in circumstances where he should have information that is essential in obtaining the putative evidence (see Wood, 1 Vet. App. at 193). Therefore, on remand, the veteran will be afforded another chance to provide information that could aid in substantiating his claim for service connection (e.g. to include submitting copies of his STRs from his period of active duty and his service as a member in the Air Force Reserve), and the Board encourages him to take full advantage of this opportunity. In addition, the Board notes that the claims file does not reflect that the periods during which the veteran served on ACDUTRA or INACDUTRA while a member of the Air Force Reserve has been verified. Given the governing legal authority, set forth above, a remand is also indicated for the RO to undertake appropriate action to verify all of the veteran's periods of ACDUTRA and INACDUTRA. Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The Board also finds that, given the veteran's assertions and the medical evidence noted above, the RO should obtain a medical opinion that specifically addresses the medical relationship, if any, between the veteran's currently diagnosed pulmonary/respiratory disabilities and his military service. See 38 U.S.C.A. § 5103A (West 2002). Hence, the RO should arrange for the veteran to undergo VA pulmonary examination, by an appropriate physician, at a VA facility. The veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in a denial of the original claim for service connection (as the claim will be adjudicated on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. To ensure that all due process requirements are met, the RO should also give the veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's notice letter to the veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO's letter should notify the veteran of what is needed to support the claim for service connection. The RO should also invite the veteran to submit all pertinent evidence in his possession (not previously requested), and ensure that its notice to the veteran meets the requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as regards the five elements of a claim for service connection-particularly, disability ratings and effective dates-as appropriate. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection. The Board further points out that, as any decision with respect to the aforementioned claim for service connection for a pulmonary/respiratory disability may affect the veteran's TDIU claim, the claim for a TDIU is inextricably intertwined with the claim for service connection. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As both claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should contact the NPRC, the Department of the Air Force and any other appropriate source(s) to verify the veteran's service, including all periods of active duty, ACDUTRA, and INACDUTRA. In addition, the RO should exhaust all efforts to obtain the veteran's complete service treatment records from his Air Force Reserve service, to include contacting the 507 TAC Hospital Group, at Tinker AFB, Oklahoma, as necessary. In requesting this information, the RO should follow the current procedures prescribed in 38 C.F.R. § 3.159 as regards requesting records from Federal facilities. The RO is reminded that it should continue efforts to procure the relevant records relating to the veteran's Reserve service until either the records are received, or until it receives specific information that the records sought do not exist or that further efforts to obtain them would be futile. All records and/or responses received should be associated with the claims file. 2. The RO should, through VCAA-compliant notice, furnish to the veteran and his representative, a letter requesting that the veteran provide information, and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to his claim for service connection. The RO's letter should clearly explain what is needed to establish the claim for service connection. The RO should invite the veteran to submit all pertinent evidence in his possession that is not already of record (to particularly include copies of his STRs from his period of active duty and his service as a member in the Air Force Reserve. The RO should also ensure that its letter meets the requirements of Dingess/Hartman (cited to above), particularly, assignment of disability ratings and effective dates, as appropriate. The RO's letter should clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claim within the one- year period). 3. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, the RO should arrange for the veteran to undergo VA pulmonary examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the veteran, and the examination report should include discussion of the veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner should clearly identify all current pulmonary/respiratory disability(ies). With respect to each diagnosed pulmonary/respiratory disability, the physician should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability was incurred in or aggravated by (a) disease or injury during active duty or a period of active duty for training during Air Force Reserve service; or (b) injury during a period of inactive duty training during Air Force Reserve service. In rendering the requested opinion, the physician should specifically consider and discuss the veteran's service records (to include report of June 1976 entrance examination for Air Force reserve service), Dr, Boomer's May 2004 opinion, any pertinent post-service occupational exposure and the veteran's smoking history. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 8. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).