Citation Nr: 1007285 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-23 417 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for bronchial asthma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The Veteran had active service from February 1982 to April 1985, and from November 1990 to May 1991. This appeal to the Board of Veterans Appeals (Board) arises from a July 2003 rating action that denied service connection for bronchial asthma. By decision of August 2007, the Board remanded this case to the RO for further development of the evidence and for due process development. In February 2009, the Veteran at the RO testified at a Board videoconference hearing before the undersigned Veterans Law Judge in Washington, D.C. By decision of April 2009, the Board denied service connection for bronchial asthma. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). By October 2009 Order, the Court vacated the Board's April 2009 decision and remanded the matter to the Board for compliance with the instructions contained in an October 2009 Joint Motion of the Appellant and the VA Secretary. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. The VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) (See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009)) includes, upon the submission of a substantially-complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, it defines the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA, and the Court's Order, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has not been accomplished. The Veteran contends that he currently suffers from bronchial asthma as a result of inhalation of fumes from burning oil well fields during military service. He gave testimony to this effect at the February 2009 Board hearing. A review of the evidence discloses that the veteran's service records are completely negative for findings or diagnoses of bronchitis or asthma, or evidence of inhalation of fumes from burning oil well fields. A review of the service medical records discloses that all examinations of the veteran's chest and lungs in service were normal. March and April 1991 medical certificates indicated that the Veteran had been examined within the past 12 months and was considered physically qualified for separation from service, and that no defects had been noted which would disqualify him from the performance of his duties. In April 1991, the Veteran certified that his health had not been adversely affected by his current military service. Post service, the Veteran denied a history of a persistent cough, emphysema, and asthma in an August 1991 report of medical history for Reserve service. The lungs were clear to auscultation on examination of the chest during hospitalization at the Foote Hospital in December 1998, at which time the veteran's past medical history was noted to be negative. Bronchitis and asthma were diagnosed by P. R., M.D., from September 1999 to April 2002; there was no history or medical opinion linking these to military service or any incident thereof. In a December 2002 statement, Dr. P. R. stated that he first treated the Veteran for asthma in October 1996, that he exhibited asthma symptoms since returning from military service, that he did not have asthma prior to service, and that no members of his family had asthma. January and February 2007 clinical records of D. J., M.D., include notations of asthma and bronchitis; there was no history or medical opinion linking these to military service or any incident thereof. In an August 2007 statement, Dr. D. J. stated that he had treated the Veteran since January 2005, when he took over from Dr. P. R.; that he knew the Veteran to have had trouble with asthma since military service; that he had no family history of asthma or respiratory ailments; and that he treated him for asthma in October 2005, January 2007, and up to the present time. In separate February 2009 statements, the veteran's wife and 3 sisters each stated that he suffered from asthma after his military service, and that he had no respiratory problems prior to service. A VA examination or opinion is necessary if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that a veteran suffered an event, injury, or disease in service; and (c) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service include credible evidence of continuity, and symptomatology such as pain or other symptoms capable of lay observation. McClendon, supra, at 83. On that factual record, the Board finds that the Veteran should be afforded a VA respiratory examination to determine the nature and etiology of his current bronchial asthma and its relationship, if any, to his military service any incident thereof, including claimed inhalation of fumes from burning oil well fields therein. The Veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, may result in denial of his claim. See 38 C.F.R. § 3.655(b) (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO should obtain and associate with the claims folder a copy of any notice of the examination sent to him by the pertinent VA medical facility. The action identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this case is hereby REMANDED to the RO via the AMC for the following action: 1. The RO should arrange for the Veteran to undergo a VA respiratory examination to determine the nature and etiology of any bronchial asthma and its relationship, if any, to his military service. The entire claims folder must be made available to the examiner, and the examination report should include discussion of the veteran's documented medical history and assertions. All indicated studies and tests should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner should review the service and post-service medical records and render an opinion for the record as to whether it is at least as likely as not (i.e., there is at least a 50% probability), or whether it is not at least as likely as not (i.e., there is less than a 50% probability) that any currently-diagnosed bronchial asthma had its onset in military service, or is the result of claimed inhalation of fumes from burning oil well fields during the veteran's military service. In reaching this opinion, the examiner should review and address the veteran's history of claimed inhalation of fumes from burning oil well fields during military service, as well as Dr. P. R.'s December 2002 and Dr. D. J.'s August 2007 post-service medical statements. The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report. 2. To help avoid future remand, the RO must ensure that all requested development action has 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If the Veteran fails to report for the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. 4. If the benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative an appropriate Supplemental Statement of the Case that includes clear reasons and bases for all determinations, and affords them the appropriate time period for response before the claims folder 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 benefit requested should be granted or denied. The Veteran needs take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate timeframe. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2009).